author: RAILEY, C.

text:
    In re Estate of WILLIAM MESSERSMITH v. CORNELIA MESSERSMITH, Appellant.
    Division One,
    April 1, 1915.
    1. APPEAL: By Administratrix. The legal title to the personal estate of a deceased husband prior to distribution is in the administratrix; and where she has asked for an order of distribution and by written statement set up her claim individually to one-half of the net proceeds of her husband’s estate, and from an order in accordance therewith the heirs have appealed to the circuit court, where the order is reversed and a Judgment is rendered declaring her interest to be only one-sixth, her appeal therefrom should be in her capacity as administratrix, since she is still the legal custodian of the estate.
    2. -: Affidavit. Where the affidavit used the word “and” instead of “or” in the clause “this appeal is not taken for vexation and delay,” and the appeal was timely taken, and no effort to have it dismissed was made until the case was set down on the docket for hearing, the appeal will not be dismissed for that clerical error.
    3. ADMINISTRATION: Share of Widow. In dealing with the rights of the widow to share in her deceased husband’s estate, the courts liberally construe the statutes in her favor; and under them she does not take as dowress, but as distributee.
    4. -: Widow and Grandchildren. Where the only claimants to the estate are the widow and five children of a son who died prior to the intestate’s death, the five grandchildren cannot be counted as five children of the intestate, but they are to be considered as inheriting the interest that their father would have received had he survived the intestate; and one-half the estate should be distributed to the widow, and the remaining balf equally divided among tbe five grandchildren. [Sec. 349, B. S. 1909.]
    5. -: -: Per Capita and Per Stirpes. In a controversy between a widow and intestate’s children as to their respective interests in his estate, they each take per capita; but as between the widow and his grandchildren, she takes per capita and they take per stirpes.

    Appeal from Osage Circuit Court. — Eon. B. A. Breuer, Judge.
    Judgment oe cibcuit court set aside and order oe DISTRIBUTION OE PROBATE COURT AEEIRMED.

      Gove & Davidson, William Vosholl and Pope <& Lohman for appellant.
    The appellant contends that the grandchildren take the place of the father, and are entitled to nothing more than the father would be were he alive; that the Legislature fixed the measure of the dower of the widow at the share of a child of her deceased husband, by Sec. 349, R. S. 1909, Hayden v. Hayden, 23 Mo. 398; Jamison v. Hays* 46 Mo. 546; Skeen v. Johnson, 65 Mo. 24; In re Estate of Elliott, 98 Mo. 383; Barnum v. Barnum, 119 Mo. 67; Keeney v. Mc-Voy, 206 Mo. 71; In re Estate of Williams, 62 Mo. App. 350; Cyclopedia Law Die., p. 147; 2 Words & Phrases, “Child — Children,” pp. 1115 et seq. Sec. 352, R. S. 1909, does not govern this case. Hastings v. Hennessy, 70 Mo. App. 354; Cox v. Dunn, 3 Mo. App. 348; Hoyt v. Davis, 21 Mo. App. 235. The right of the widow, her husband dying and leaving children, under Sec. 349, R. S. 1909, to take a child’s part is one which is so absolute that she takes it even without election. Lich v. Lich, 158 Mo. App. 424.

      A. T. Dumm, E. M. Zevély and A. K. Monroe for respondent.
    (1) The administratrix filed a motion for a new trial, also her affidavit for an appeal to the Supreme Court by her agent, R. S. Ryors. But the record does not show any order granting the administratrix any such appeal. The records do reveal, however, that an appeal in this case was granted to the widow of William Messersmith, who is a distributee of his estate, and who never, at any time, applied for such appeal. The widow filed no motion for a new trial nor did she file her affidavit for appeal in the circuit court. The granting of the appeal in this case was, therefore, void, and same should be dismissed. Sec. 2040, R. S. 1909; Cassidy v. St. Joseph, 247 Mo. 197. This appeal should be dismissed even if it be conceded that an appeal was granted the administratrix. This suit was from the beginning and remains a contest between the Messersmith minors, represented by their guardian and curator, upon the one hand, and Cornelia Messersmith, as widow and distributee, upon the other; there was no occasion for the legal representative (the administratrix) of William Messersmith to interpose as a party to this suit. Said administratrix was never a party to it, as such, nor is she as administratrix aggrieved by the judgment of the circuit court, and consequently was not competent to appeal this case. The same should therefore be dismissed and the cause stricken from the docket. Bates v. Byberg, 40 Cal. 465; Wright’s Estate, 49; Cal. 551; Estate of Marrey, 65 Cal. 287; Merrifield v. Long-mire, 66 Cal. 180; Roach v. Coffey, 73 Cal. 281; Cold-tree v. Thompson, 83 Cal. 420; In re Williams’ Estate, 122 Cal. 76; In re Dewar’s Estate, 10 Mont. 422; 2 Cyc. 640; 2 R. C. L. 54, sec. 35; Singmaster’s Appeal, 86 Pa. 169; In re Switzer, 201 Mo. 83. (2) The affidavit for appeal in this case is insufficient. It sets forth that the appeal is “not made for vexation and delay,” etc., and is not even a substantial compliance with the statute. It is evasive and equivocal and fatally defective. Sec. 2040, R. S. 1909; State ex rel. v. Grates, 113 Mo. App. 649; Cassidy v. St. Joseph, 247 Mo. 197; Jones, Edwards & Oo. v. Robertson, 76 Mo. App. 267. (3) Tbe respondents contend that tbe grandchildren each take one-sixth and the appellant one-sixth interest in estate of William Messersmith, deceased. Keeney v. McVoy, 206 Mo. 74; Perry v. Strawbridge, 209 Mo. 644; Yerdin v. St. Lonis, 131 Mo. 163. In this State the widow np to 1824 took one-third of her deceased husband’s personal estate absolutely, but at that time the law was amended giving to the widow a share equal to the share of a child of her deceased husband instead thereof; and that has been the law to the present. Sec. 6, p. 128, Territorial Laws 1824. The word child is also used to include grandchildren and give the widow an interest equal in quantity to the greatest interest anyone can take, upon whom the law casts the estate. Perry v. Straw-bridge, 209 Mo. 621; Keeney v. McYoy, 206 Mo. 42. (4) The grandchildren whose parents die before the grandfather inherit directly from their grandparent and take per capita, in cases of this kind. Sec. 336, R. S. 1909; Copenbaver v. Copenbaver, 78 Mo. 57. Personal property descends to the heirs when the owner dies intestate. Sec. 332, R. S. 1909; In re Estate of Elliott, 98 Mo. 383. The widow does not inherit, neither does she take as, nor in the capacity of, a child; she merely takes a share in the deceased husband’s estate equal (in quantity only) to the share of a child; her interest always depends on the interest of some one upon whom the law casts the estate; the rights of others entitled must first be ascertained in a case of this- kind before her rights can be determined. Schaper v. Schaper, 158 Mo. App. 609. Appellant’s contention is against the law of dower, descents and distribution; while respondent’s position is such as to give force and effect to all kindred statutes upon this subject and to give justice to all, as contemplated by our Legislature since 1824. (5) When a statute uses the term children- it may stand in a collective sense for grandchildren when justice and reason require it. 4 Kent’s Commentaries, p. 418; Endlich on Interpretation of Statutes, secs. 80 and 321.
   RAILEY, C.

Upon final settlement of the estate of William Messersmith, deceased, at the August term, 1911, of the probate court of Osage county, Missouri, there was $45,242.52 to be distributed between the widow and the five children of a deceased son by a former marriage.

There is a complete transcript, with the record of all the proceedings in the probate and circuit courts of said county. It appears from the transcript that the administratrix applied to the probate court, after her final settlement had been made and approved, for an order of distribution of the funds aforesaid. She likewise filed a written statement as widow claiming one-half of said fund under section 349, Revised Statutes 1909, and stated therein that the remaining one-half belonged to the five children of John Messersmith, a son, who died before the death of his father, William Messersmith.

The probate court sustained the contention of the administratrix and gave her one-half of said fund. The five children, who were minors, through their guardian, appealed to the circuit court of Osage county. The administratrix and said guardian, through their attorneys, agreed upon th¿ facts as follows:

“It is admitted by the respective parties on this trial that the five children mentioned in the application, namely; Pearl Messersmith, Amy Messersmith, William M. Messersmith, Homer Loyd Messersmith and Maggie Messersmith, are the children of John Messersmith, and that the said John Messersmith was a son of the deceased William Messersmith and died prior to his father. That Cornelia Messersmith is the widow of said William Messersmith, deceased, and that she and the said five named minors are the only persons entitled to share in the estate of William Messersmith, deceased, and that the said John Messersmith was a child of William Messersmith by a former wife, also now deceased, and that by said former wife the said William Messersmith had another child, a daughter, Maggie Messersmith, who died prior to William Messersmith, leaving no descendants. And it is further admitted that James David Pluckstep is the legally appointed guardian and curator of the estates of said minor children, and Cornelia Messersmith is the administratrix of William Messersmith, deceased. It is also admitted that William Messersmith died intestate in Osage county, Missouri, on or about June 15, 1909. It is admitted that the amount of personal property to be distributed in this estate is $45,242.52, as shown by final settlement. ’ ’

The circuit court, on the agreed statement of facts, found and adjudged that the said widow was entitled to one-sixth of said property and that each of the above-named minors was entitled to one-sixth interest therein. This order of distribution was directed to be certified to said probate court, and a judgment was entered against Cornelia Messersmith, the widow, for the costs of said proceeding.

Cornelia Messersmith, as administratrix aforesaid, at the same term, and on the same day of the rendition of said judgment, filed a motion for new trial, and asserted therein that: (1) The decision was contrary to law; (2) the court erred in its judgment upon the agreed facts as a matter of law, and (3) the order of distribution, as made by the probate court (giving her one-half of said estate) in said matter, was right and should have been affirmed. This motion was overruled, etc., and, without caption, the following affidavit for appeal was filed:

“Now comes R. S. Ryors as agent for Cornelia Messersmith, administratrix of said estate, and being duly sworn on his oath says the appeal in this cause taken from the judgment of the Osage Circuit Court is not made for vexation and delay, but because this affiant believes appellant is aggrieved by the judgment and decision of the said circuit court herein,” etc.

On the filing of said affidavit the trial court granted the administratrix an appeal to this court, and she filed herein her transcript of appeal on November 7, 1911. On December 30, 1914, more than three years after the filing of said transcript, the respondent filed in this cause a motion to dismiss said appeal. The motion to dismiss will be considered with the merits of the case.

The jurisdiction of this court is assailed by respondent upon two grounds: (a) Because the appeal was taken from the circuit court by the widow as administratrix and not by her individually as one of the distributees.; (b) because the affidavit for appeal alleges that it was not made for vexation and delay, when the disjunctive or should have been used instead of “and.” We will dispose of these questions in the order presented.

I. The personal estate held by the administratrix upon final settlement and which she sought to have distributed between herself and the five children named, was in her pos- . . ’ ^ session as administratrix, and under the circumstances she holds the legal title thereto until a final order of distribution is made. In Orchard v. Store Co., 225 Mo. l. c. 433, this court said:

“If, however, a leasehold is personal property, it passes primarily, on the death of the owner, to the executor or administrator, and until the heirs or legatees receive it through the process of administration, the legal title thereto is in such legal representative. [Smarr v. McMaster, 35 Mo. 349; Leakey v. Maupin, 10 Mo. 368; Gillet v. Camp, 19 Mo. 404; Rouggley v. Teichmann, 10 Mo. App. 257; Richardson v. Cole, 160 Mo. 372.]”

The same principles of law were announced by this court in Moody v. Peyton, 135 Mo. l. c. 488-489. In other words, the administratrix came into the probate court with the fund, and asserted as widow that she was entitled to one-half of same, and that the five children were entitled to the remainder. She was authorized by law to hold the fund as administratrix until a final legal order of distribution is made. The probate court sustained her contention, but the heirs appealed to the circuit court. She was therefore before the circuit court as administratrix with the fund, and as the widow claiming one-half of same. The circuit court decided adversely to her claim as widow and allowed her one-sixth, instead of one-half of said fund. The court also overruled her contention as administratrix that the five children were only entitled to one-half the estate instead of five-sixths of same. If satisfied that the order of distribution made by the circuit court was wrong, she had the right as administratrix and legal custodian of-said fund to appeal the case to this court in order that the rights of the parties might be definitely determined. We therefore hold that the administratrix had the legal right to appeal the cause to this court.

II. The transcript of appeal was on file here more than three years before a motion to dismiss said appeal was filed. The case was even upon the printed docket for hearing at the January Call, 1915, before said motion was filed. It is manifest that the use of the word and instead of or in the affidavit for appeal was purely an oversight and clerical error. The circuit, court, after deciding adversely to her contention, granted her as administratrix, an appeal to this court. As such legal representative it was her duty as custodian of said fund to see that it was distributed according to law. As she represented the entire fund as administratrix, the case •was properly appealed by her in that capacity. She presents here a meritorious case. In view of the foregoing facts, and the conclusions reached by this court in Cassidy v. St. Joseph, 247 Mo. 197, on this subject, we overrule the motion to dismiss appeal.

III. The determination of this cause depends upon the construction of section 349, Revised Statutes 1909, which reads as follows:

“When the husband or wife shall die, leaving a child or children or other descendants, the widow or widower shall be entitled absolutely to a share in the personal estate belonging to the husband or wife at the time of his or her death, equal to the share of a child of such deceased husband or wife.”

The above and other similar provisions of our law, coming before the courts for review, have furnished the opportunity for a great display of legal learning, but in our opinion the plain provisions of said section, when given a common-sense, every-day construction, are more easily understood than many of the exhaustive opinions undertaking to elucidate and construe.the same.

In our opinion, said section, as applied to the facts of this case, means, that as William Messersmith died intestate, leaving a widow and no other heirs except the five children of his son John, who died before his father, the five children, in ascertaining the share of the widow in the fund aforesaid, occupy the same position, and take the same share of said estate, which their father, John, would have taken, had he been alive at the time of his father’s death. If we are correct in the conclusion thus reached, the widow is entitled to one-half the funds held by her as administratrix aforesaid, and the five children supra are entitled to the remainder of said fund.

The courts of this State have uniformly been liberal in dealing with the rights of the widow when called in question.

In Lemp v. Lemp, 249 Mo. l. c. 314, it is said: “Such statutes are quite liberal to the wife in this State, giving her, in addition to her dower in his real estate, the title absolutely to a share in the personal estate belonging to the husband at the time of his death equal to the share of a child. [R. S. 1909, sec. 349.] ”

The wife under the above section is not a dowress but a distributee. [Howard v. Strode, 242 Mo. l. c. 218, 219.] Judge Ferriss, in behalf of Division Two of this court, upon page 220 of the last citation, said: “Under section 349, the widow is entitled absolutely to a share in the personal estate of her husband equal to the share of his child. She thus becomes a distributee, and as such stands in the same relation to the personal estate as does the child, and manifestly is entitled to the same remedies to enforce her rights.”

In Lich v. Lich, 158 Mo. App. l. c. 424, Judge Reynolds, in behalf of the St. Louis Court of Appeals, said: “The right of the widow, her husband dying and leaving children, under section 349, Revised Statutes 1909, to take a child’s part, is one which is so absolute that she takes it even without election.”

In Hayden’s Admr. v. Hayden’s Admr., 23 Mo. l. c. 399, Judge Ryland said: “The right of the widow to a share in the slaves equal to a child’s part, does not depend upon any act to be done by the widow; the right vests immediately, and, unless she chooses to . take otherwise, no one can choose for her. The law confers on her a child’s part, but gives her the option to reject this part. Now, unless this will to choose is exercised, the child’s portion becomes the widow’s portion. ”

In Keeney v. McVoy, 206 Mo. l. c. 70, this court, in very emphatic language, recognized the rights of the widow under our statutes, and held that in dealing with her interests, the law should he liberally construed.

The above quotations take a wide range, and show, from an early period in the State’s history to the present time, that the widow’s interest as distributee in her husband’s estate has always been liberally protected and sustained.

In the Keeney case, supra, the granddaughter and her husband brought suit in partition to divide certain real estate.' The decedent left no other heirs except this granddaughter and his widow. The granddaughter and her husband took the position that, as the deceased departed this life without leaving any living children, the widow took nothing, under section 356, Revised Statutes 1909. This court, after reviewing many authorities and discussing the question pro and con, finally reached the conclusion that although there was no living child at the time of decedent’s death, yet, as he left a grandchild, it gave the widow a child’s part, and she was entitled to one-half of the property in controversy. The court thereupon gave the widow an equal proportion with the grandchild.

This case is cited as an authority against the contention which we have heretofore reached, but the most casual examination of the same will disclose that in the Keeney case there was only one grandchild and the widow, hence the question which we have here as to whether the widow can only take one-sixth interest where there were five grandchildren, was not involved. In other words, in the Keeney case this court did not undertake to say whether the widow would be entitled to one-half of her husband’s personal property or whether she would simply be entitled to one-sixth of same, where there were five grandchildren as in the case at bar. We have been unable to find any case in this State where the question in review here has been squarely decided.

Keeping in mind the policy of the law in this State to deal liberally with the widow in construing her rights, it is manifest that section 349, Revised Statutes 1909, can only be construed in the case at bar to give the widow one-half the fund, and the five children the remainder.

Under the Law of Descent and Distribution, section 332, Revised Statutes 1909, the five children here would have simply inherited the interest of their father John, who died before the death of decedent. [Estate of Wm. G. Williams, 62 Mo. App. l. c. 350.]

It is contended by respondent’s counsel that the law in this case cast the estate of William Messersmith into five equal parts, there being five distinct heirs surviving him, and that as the widow is entitled to a child’s share, she takes a one-sixth interest in the estate, and nothing more. We do not agree with counsel as to above contention. In a controversy between the widow and a child, they each would take per capita, but we hold, that as between the tuidow and a grandchild or grandchildren, she takes per capita and the grandchild or grandchildren per stirpes. The same principle w'ould apply, whether there was one or more children of deceased, or whether there was one grandchild or several. In other words, the widow and children would take per capita, and the grandchildren would take per stirpes, in a controversy between themselves. The same rule of construction would apply, even if there were two or more sets of grandchildren and the widow, as the latter would take per capita, and the different sets of girandchildren, per stirpes.

We are of the opinion, that section 349, supra, should be construed as above indicated. This construction of said section is in harmony with kindred statutes upon this subject.

The judgment of the circuit court is therefore set aside, and the order of the distribution made by the probate court of Osage county, Missouri, affirmed.

PER CURIAM. — The original opinion of Railey, C., having been modified as requested by counsel for respondents, is hereby adopted as the opinion of the court, and the motion for rehearing overruled. All the judges concur; Woodson, J., concurs fully with this opinion, and holds that the rule here announced is in perfect harmony with the doctrine stated in the case of Keeney v. McVoy, 206 Mo. 42.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    ALICE TIEDE, Appellant, v. O. C. FUHR et al.
    Division One,
    April 1, 1915.
    1. DEPOSITIONS: Attachment of Witness. Whatever power a justice of the peace possesses to command by subpoena and compel by attachment the attendance of witnesses before him at the taking of depositions, is statutory.
    2. -: -: Notice. In the absence of waiver and agreement of the parties, the statutory notice to take a deposition is an essential prerequisite to the vesting in the justice of the peace of authority to take the deposition at all, and without such notice he has no power to subponea and attach witnesses whose depositions are desired.
    3. -; -; -; Service: For Past Date. The service of a copy of a notice to take a deposition on a date that is past, is void and no notice at all, although the original upon which the officer who serves the copy makes his return calls for a future date. The return of the constable is at most but prima-facie, and the rule applicable to a sheriff’s return upon summons cannot be invoked.
    4. FALSE IMPRISONMENT: Attachment of Witness: Liability of Private Persons: Mistake in Notice: Punitive Damages. It is the general rule that it is incumbent upon private persons (such as a party to a suit and his attorney), voluntarily causing the enforcement of a writ of attachment for a witness, to find a record that will support the process; and where they induce the issuance and service of such writ, an action for false imprisonment will lie if the writ is issued without jurisdiction — if, for instance, they induce the justice to issue and the constable to serve a writ of attachment for a witness who has not been served with notice to appear at the taking of the deposition. As to such private persons and a right of action against them it matters not that the copy of the notice served upon the witness, by unintentional mistake of the justice, called for attendance upon a past date, though a belief by them that due notice had been given is of much importance on the question of punitive damages.
    5. -:-: Attorney: Good Faith. Trespass lies against an attorney for a party to a pending suit, who sues out void process whereby another is unlawfully imprisoned. Nor is bad faith an essential element of false imprisonment. Good faith will not relieve an attorney from liability for procuring the issuance and service of process from an inferior tribunal absolutely without jurisdiction. [Questioning soundness of apparently contrary announcement in Fellows v. Goodman, 49 Mo. 62, and distinguishing between good faith and malicious prosecution.]
    .6. -: -: Elements: How Shown. To sustain an action for false imprisonment, it is necessary to prove the imprisonment, the arrest, the “constraint of liberty,” as well as its falsity; but this may be shown to have been effected by words alone, or by acts alone, or by both. Submission to arrest in order to avoid a demonstration which apparently can only be avoided by submission, is sufficient.
    7. -:-:-: Mitigation. Courteous treatment by the officer making the arrest cannot defeat an action for false imprisonment against a private person who induced the justice to issue and the constable to serve the writ of attachment, nor can the fact that the witness and her attorney knew the notice to attend the taking of the deposition contained a mistake which made it void and did not at an opportune time reveal that fact to the defendant’s attorney, though such facts ought to reduce the recoverable damages.
    ‘8. -: Against Attorney's Client. The evidence in this case supports the inference that the client of the attorney who induced the justice to issue and the constable to serve a writ of attachment for a witness who had not been subpoenaed, knew and approved of his attorney’s acts, and therefore he is also liable to the witness in an action for false imprisonment.
    D. MALICIOUS PROSECUTION: No Abuse of Process. Where the evidence reveals no abuse -of process, but merely a detention without authority or process, or upon void process, an action for malicious prosecution cannot be sustained. In malicious prosecution some sort of “prosecution” must appear, which necessarily implies the employment of legal process possessing at least a measure of regularity.

      Appeal from Greene Circuit Court. — How. James T. Neville, Judge.
    Reversed and remanded.

      Oscar B. Elam for appellant.
    (1) False imprisonment is a mixed question oi law and fact. Whether there has, in fact, been an imprisonment is a question of fact for the jury to determine. 5 Ency. of Ev., p. 733. (2) In order to establish the offense of false imprisonment it is only necessary on behalf of the plaintiff to show the imprisonment. 5 Ency. of Ev., p. 733. And however honestly the mistake has been made in causing- the arrest to be made, the procurer thereof is nevertheless liable. Bishop on Non-Contract Law, sec. 213. (3) The law presumes every imprisonment unlawful. Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Mitchell v. State,. 12 Ark. 50, 54 Am. Dec. 253; People v. McGrew, 77 Cal. 570; Kirbie v. State, 5 Tex. App. 60. (4) The burden of proving the imprisonment lawful is upon him who asserts the imprisonment to be lawful. 5 Ency. of Ev., p. 734. (5) Malice is not a constituent element of the wrong of false imprisonment. Bishop on Non-Contract Law, sec. 212; Boeger v. Langenberg, 9 Mo. 396 ; 5 Ency. of Ev., p. 733. (6) Want of probable cause is not a constituent element of the wrong of false imprisonment in making’ a prima-facie case. 5 Ency. of Ev., p. 733; Boeger v. Langenberg, 97 Mo. 396. (7) False imprisonment is any unlawful physical restraint by one of another’s liberty, whether in.prison or elsewhere, in a place stationary or moving, under claim of authority or not, by bolts and bars, by threats overpowering the will, or by any other means. Bishop on Non-Contract Law, sec. 206; Boeger v. Langenberg, 97 Mo. 396; Wehmyer v. Mulvihill, 150 Mo. App. 205. (8) Wrongful arrest is the most familiar illustration. If an officer or private person, assuming to act by command or permission of the law, detains one without its authorization in fact, whether' believing himself to have the authority or not, he must answer to the-arrested person for a false imprisonment. Bishop on Non-Contract Law, sec. 209. (9) One who procured the arrest, whether present or absent when it was made, is in like manner answerable. Bishop on Non-Contract Law, sec. 209. (10) In this country courts of law have no inherent power to direct the taking of depositions, their sole authority in that respect being conferred by constitutional provisions or statutes. 6 Ency. PI. & Pr., p. 478 ; In re Nitsche, 14 Mo. App. 213. (11) The notice served upon plaintiff March 31, 1910, that depositions on part of defendant would be taken in the case March 4, 1910-, was no notice at all. Range Co. v. Jeffers, 79 Mo. App. 178; In re Nitsche, 14 Mo. Ápp. 213. (12) The service of notice of the time and place of taking the depositions is a condition precedent to the exercise of the right to take the depositions. R. S. 1909, sec. 6392. (13) All plaintiff was required to do to make her case on her count for malicious prosecution was to show that she was prosecuted by the defendants; that the prosecution terminated in her favor, and that it was malicious and without probable cause. Eckerle v. Higgins, 159 Mo. App. 183.

      G. A. Watson, J. J. Gideon and W. P. Sullivan for' respondents.
    (1) The facts on which the action of the justice of the peace was based were all before him, files of his court, and neither the respondent Fuhr nor his attorney is answerable for his act. Warren v. Flood, 72 Mo. App. 205; Clark v. Thompson, 160 Mo. 461; Brucker v. Frederick, 109 Mo. App. 614; St. Louis v. Karr, 85 Mo. App. 615/ (2) To sustain an action for malicious prosecution, malice and want of probable cause must co-esist. Pinson v. Campbell, 124 Mo. App. 260; Stubbs v. Mulholland, 168 Mo. 47. (3) To sustain an action for false arrest, bad faith must be shown. Daugherty v. Snyder, 97 Mo. App. 495; Fellows v. Goodman, 49 Mo. 62; Roth v. Shnpp, 94 Md. 55. (4) An action for false imprisonment may not be maintained for an arrest which is lawful, no matter at whose instigation or from what motive the arrest was made. Bierworth v. Pieronnet, 6'5 Mo. App. 431; Weymeyer v. Mulvihill, 150 Mo. App. 197; Merchant v. Bothwell, 60 Mo. App. 341; Finley v. Refrigerator Co., 99 Mo. 559. (5) The attachment of Alice Tiede was lawful. R. S. 1909, sec. 6404. (6) She could not be the judge as to her duty to obey the subpoena. Shull v. Boyd, 251 Mo. 475.
   BLAIR, J.

Plaintiff appeals from an order overruling her motion to set aside a nonsuit taken when the trial court sustained a demurrer to the evidence. The petition is in two counts, one for false imprisonment and one for malicious prosecution. Each count prays $20,000 as damages.

Plaintiff and defendant Fuhr are sister and brother, and in 1910 were involved in litigation in which defendant Sullivan was acting as Fuhr’s counsel and appellant’s present counsel represented her.

On March 31, 1910, depositions for plaintiff'were •being taken before H. A. Garbee, at Billings, in a case then pending in Christian county, instituted by Alice Tiede, the present appellant, against O. C. Fuhr, one •of these respondents. On that date opposing counsel signed an agreement purporting to postpone the taking of such depositions until April 4, 1910. On the day the agreement was signed defendant, by his attorney, undertook to give notice to Alice Tiede for the taking of depositions on behalf of defendant in the same case and upon April. 4, 1910, but before a different magistrate, E. F. Howcroft, and at an office in Billings different from that named in the agreement mentioned. The original notice which the constable returned to the justice named April 4, 1910, as the date for taking depositions for the defendant, but the copy of the notice actually delivered to Alice Tiede notified her that the depositions would be taken March 4, 1910. A subpoena to appear before Howcroft on April 4, 1910, was served upon Alice Tiede at the time the supposed copy of the notice was delivered to her. Soon thereafter she noted that the notice was for a day past. It appears that only Mrs. Tiede, her husband and her attorney knew of the error in the notice until she appeared before Howcroft in obedience to an attachment issued by him.

There is evidence that on April 4th counsel for Alice Tiede refused to agree to a division of the day for the taking of depositions before Garbee in her behalf as plaintiff and before Howcroft in behalf of defendant Fuhr, as suggested by defendant’s then counsel and present codefendant Sullivan; that defendant’s counsel then left the scene, and the taking, in behalf of plaintiff, of defendant Fuhr’s deposition was resumed before Garbee; in a short time Fuhr, then on the witness stand undergoing examination by plaintiff’s counsel, asked Justice Garbee to excuse him in order that he might consult his attorney, his present codefendant. Fuhr was absent fifteen or twenty minutes and then returned, and there is- evidence he was heard to say to his wife: “She will have something else to think about now.” This was a short time before the justice’s attachment was served. One witness testified that just after the constable who served the attachment left with Alice Tiede in his custody, Fuhr, who was present when the arrest was made, “smiled and said that the fun had all been on one side, but it would be on the other side now.” There was some testimony also that earlier in the day defendant Fuhr had attempted to procure the services of a stenograpker to take the depositions before Howcroft, and on being told that tbe person applied to was engaged with tbe depositions before Garbee and could not appear before Howcroft at tbe same time, Fubr said that “in that ease Mr. Sullivan would bave to make other arrangements. ’ ’

Tbe evidence tends to show that Justice Howcroft issued an attachment for Alice Tiede at defendant Sullivan’s request and delivered it to tbe constable in bis presence. In fact, tbe constable testified that “they” (Howcroft and Sullivan) delivered it to him. Tbe constable proceeded to tbe hotel where Justice Garbee was sitting, and where defendant Fubr was, and took Mrs. Tiede in custody and accompanied her to Howcroft’s office. She was almost immediately discharged by tbe justice.

I. Whatever power a justice of tbe peace, taking depositions, possesses to command by sobpoena and compel by attachment tbe attendance of witnesses, is statutory. [Secs. 6404, 6367, R. S. 1909.]

In tbe absence of waiver and agreement of tbe parties, tbe statutory notice to take depositions (Secs. 6392, 6393, R. S. 1909) is an essential prerequisite to tbe vesting in tbe justice of authority to take depositions at all. In such case in tbe absence of authority to take depositions there can be no power to subpoena and attach witnesses whose depositions are desired.

In this case there was no service of notice to take depositions upon April 4, 1910. The copy delivered was for a day that was past and tbe service was void. Tbe effect of tbe return of tbe constable was at most but prima-facie (Bowyer v. Knapp, 15 W. Va. 277) and tbe rule (Smoot v. Judd, 184 Mo. 508) applicable to sheriffs’ returns upon summons cannot be invoked. Assuming that such return is sufficient to protect tbe justice himself, iu that his erroneous decision that he had jurisdiction of the person fell .. ,, . • o within the maxim that ignorance of fact excuses, yet defendants in this case are not within the protective scope of that maxim. They occupy a position somewhat different from that of the justice. It is the general rule that it is incumbent upon private persons, voluntarily causing the enforcement of a writ, to find a record that will support the process (Deyo v. Van Valkenburgh, 5 Hill, l. c. 244) and in case such persons induce the issuance and service of such writ, false imprisonment will lie in case the writ is issued without jurisdiction..

In this case, the issuance of the attachment was requested by defendant Sullivan, and there is evidence it was delivered to the constable in his presence. "Whatever protection, if any, the fact that the failure to give notice was due to an unintentional mistake might afford the justice, it is not a complete answer to this action, since, as stated, a private person voluntarily interferes at his peril; besides, the error was one committed by one of these defendants and he was attorney for the other and acting in his behalf. That defendants’ belief that due notice had been given is of much importance upon the question of punitive damages is undeniable, but it does not bar plaintiff’s right of action.

Substantial “evidence tending to show that the plaintiff was restrained of his liberty at defendant’s instance, by reason of process which the magistrate had no authority to issue in the premises, is sufficient to sustain a count for false imprisonment. Neither malice nor want of probable cause need to be proved to support such an action.” [Boeger v. Langenberg, 97 Mo. l. c. 396; Wehmeyer v. Mulvihill, 150 Mo. App. l. c. 205.]

II. One of the defendants was an attorney for the other. At common law trespass lies against an attorney who sues out void process whereby another is unlawfully imprisoned. [Barker v. Braham, 2 W. Bl. l. c. 869; Revill v. Pettit, 60 Ky. l. c. 320; Day v. Bach, 87 N. Y. l. c. 61.] “It cannot be disputed but that an attorney who causes void . . . process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages, occasioned.” [Fischer v. Langbein, 103 N. Y. l. c. 89; Ward v. Cozzens, 3 Mich. l. c. 259; Williams v. Inman, 1 Ga. App. l. c. 324.]

Respondents biggest that the rule in Missouri is. that an attorney acting in good faith is not liable in any case for false imprisonment, and cite authorities..

Dougherty v. Snyder, 97 Mo. App. 495, was an action for false imprisonment. The evidence showed plaintiff was taken in custody in a proceeding in which the probate court had jurisdiction of the subject-matter and acquired jurisdiction of the person in lawful manner. The court pointed out that malicious prosecution would lie in such a case if the proceeding had been prosecuted with malice and without probable-cause, but that false imprisonment was not the remedy in a ease in which the proceedings were regular, whatever motive actuated the person who initiated them. In that case some doubt was east upon the rule by a reference to the case of Fellows v. Goodman, 49 Mo. 62. In that case this court held that though the process, regularly issued from a court, with full jurisdiction, yet the proceedings were patently a sham and false imprisonment would, on that account, lie. That caséis anomalous. Any legal proceeding instituted from malice and without probable cause is a sham in the-true sense. It is because it is in such sense a sham that an action for malicious prosecution lies. That extreme malice and absolute want of any sort of cause appear is no reason for holding that false imprisonment lies for abuse of process regularly issued and served, nor that bad faith either transforms regular process into void process or converts malicious prosecution into false imprisonment. It merely aggravates the damages for the malicious prosecution. The case of Fellows v. Goodman, in so far as it departs from this view, is unsound in principle and is overruled. Bad faith is not an essential element of false imprisonment. [Boeger v. Langenberg, 97 Mo. l. c. 396.]

Eoth v. Shupp, 94 Md. 55, was an action for false imprisonment brought against the party who had instituted certain proceedings, her attorney and the justice who committed plaintiff in default of payment of a fine assessed.

The case shows the justice had jurisdiction and the court held that a showing he acted erroneously would not sustain the action. The case, apparently, had been tried on principles applicable to actions for malicious prosecution. Judgment was for defendants and was affirmed. In its discussion the court was drawn into a consideration of principles applicable to actions for malicious prosecution and its conclusions are based upon citations of decisions in such actions, e. g., Peck v. Chouteau, 91 Mo. l. c. 151; Burnap v. Marsh, 13 Ill. 535. What is said relative to the good faith of the justice and the attorney is not, when properly understood, to be taken as an announcement that good faith will relieve an attorney of liability for procuring the issuance and service of process from an inferior tribunal absolutely without jurisdiction.

The effect of that decision is that the judgment below in that case was right, considering the action either as one for false imprisonment or for malicious prosecution.

III. It is necessary to prove the imprisonment, the arrest, the “constraint of liberty,” as well as its falsity; but this may be shown to. have been effected by words alone, or by acts alone, or both. Submission to a demonstration which apparently can be avoided only by submission, is sufficient. [Ahern v. Collins, 39 Mo. l. c. 151; Dunlevy v. Wolferman, 106 Mo. App. l. c. 51.]

There is evidence the constable arrested plaintiff and took her in custody and conveyed her to ITowcroft’s office. The distance was not great, it is true, and the time was not long and the constable’s treatment of plaintiff was not only not harsh but, on the contrary, he was courteous, even deferential. Yet these things, when the illegal restraint is shown, do not defeat the right of action, however much they ought to reduce the recoverable damages.

The same thing is true of the action of plaintiff and her counsel during the time defendant Sullivan was endeavoring to secure an agreement as to a division of the day (April 4) between the two sets of depositions. It is true both plaintiff and her counsel knew of the mistake in the date in the copy of the notice served, and that neither of them, during the controversy over dividing the time, mentioned that mistake, though counsel, at least, must have known Mr. Sullivan was relying upon that notice as the basis of his • right to take depositions that day at all. However reprehensible this conduct be thought, yet the fact remains that there was no notice and, therefore, no authority in Howcroft to take depositions at all and, consequently, no authority to attach a witness for disobeying a subpoena.'

IY. It is urged that “a witness legally subpoenaed cannot be permitted to determine for herself whether the process of the court should obeyed,” and Shull v. Boyd, 251 Mo. l. c. 475, is cited. The facts of this case show no issuance of any “process of the court” and show that the witness was not legally subpoenaed. Tbe justice having no jurisdiction could not issue valid process.

V. It is contended there is no evidence to connect defendant Fuhr with the proceedings in a way to render him liable. There is substantial evidence from which a jury might find Fuhr knew depositions at How-croft’s office were to be taken in his behalf; that his attorney was in charge ^ that matter; and, we think, that Fuhr knew in advance that his attorney intended to procure the issuance of the attachment for Alice Tiede. His movements and conversation would justify a jury in drawing these inferences and in concluding that when the constable appeared and, in Fuhr’s presence, attached Alice Tiede, Fuhr knew what was being done and that what be said about “the fun” going to “be on the other side now” had reference to the attachment and disclosed his knowledge and approval of that proceeding. [Cooper v. Johnson, 81 Mo. 483; Newell on Malicious Prosecution, p. 212, sec. 97.]

On the whole record the case should have gone to the jury against both defendants on the count for false imprisonment.

VI. The count for malicious prosecution is not sustained by the evidence offered since no abuse of process appears but merely a detention without authority or process or “upon void procesS;>> which is no process at all. In malicious prosecutions not only defendant’s malice and want of probable cause must appear, but it must be shown that there was a “prosecution” which necessarily implies the employment of legal process possessing at least a measure of regularity. [McCaskey v. Garrett, 91 Mo. App. l. c. 359; Boeger v. Langenberg, 97 Mo. l. c. 395, 396; Finley v. Refrigerator Co., 99 Mo. l. c. 562, 563.]

So far as concerns the count for malicious prosecution the trial court’s ruling was right. On the count for false imprisonment the ruling was' wrong.

The judgment is reversed and the cause remanded to he proceeded with not out of conformity with this opinion.

Graves, P. J., concurs; Woodson, J., concurs except as to what is said concerning the case of Shull v. Boyd, 251 Mo. 475; Bond, J., dissents as to what is said concerning Fellows v. Goodman, 49 Mo. 62, and concurs in result only.


author: BOND, J.

text:
    RICHARD D. HATTON et al., Testamentary Trustees of CHRISTIAN F. LIEBKE, Appellants, v. CITY OF ST. LOUIS.
    Division One,
    April 1, 1915.
    1. STREET: Dedication: Irrevocable. The dedication of a street by a properly executed and recorded plat, in the manner prescribed by statute, made by the owner of land, vests the title to the streets and alleys thereon designated in the city, without any action on its part, and thereafter is irrevocable by him or his heirs.
    2. -: Common-Law Dedication: Acceptance by City: Estoppel. A plat made by commissioners appointed to partition the lands, so made that the respective allotments should be bounded by certain streets and alleys designated thereon as dedicated to the city, followed by an exchange of deeds vesting the allotments in accordance therewith among the coparceners in severalty, though not acknowledged, if recorded, constitutes a common law or non-statutory dedication, and is just as efficacious as a statutory dedication would be, if accepted by the city in any of the ways recognized by the law, or if the owners of the allotments by any acts having that effect have estopped themselves to question the validity of the dedication.
    3. -: -: Acts of Acceptance. Omitting from assessment for taxation streets and alleys designated on the unacknowledged ’ but recorded plat; taking charge of one of the streets, changing its name, improving it under ordinance passed for that purpose, and causing it to be widened by a condemnation proceeding; and including the streets and alleys designated in the plat in all the official maps of the city’s highways, amount to an acceptance by the city of the common-law or non-statutory dedication of such streets and alleys.
    4. -:--: Estoppel. The execution and exchange of deeds ■ among the coparceners conveying the allotments to them in severalty, in accordance with the plat of the commissioners in partition, designating certain streets and alleys and reserving them to public use, immediately upon the filing of such unaekowledged plat, vest the easement, in the streets and alleys in the city, and estop the coparceners from questioning the efficacy of the dedication.
    -5. -: Limitations: Adverse Possession. A claim of title to a street, by limitation or by abandonment, presents issues of law; and no right or title can accrue from adverse possession, unless it began prior to the time the statute excepting lands devoted to a public use from the operation of the Statute of Limitations became operative on August 1, 1866, and was actual, open and notorious, under a claim of ownership, prior to that date.
    -6. -:-:-: Appellate Practice. Where the evidence was conflicting on the question of whether plaintiff’s actual possession of the streets and alleys prior to August 1, .1866, was adverse to the city’s claim of an easement, or was in recognition of it, or was actual, and the court sitting as a jury found against the plaintiff on the issue, presented purely as an issue of law, and no instructions were asked or given and no exceptions were saved during the course of the trial, the weight of the testimony was for the trier of the fact, and his finding on that issue will not be disturbed on appeal.
    Appeal from St. Louis City Circuit Court. — Ron. Leo. 8. Rassieur, Judge.
    Afkirmbd.

      E. G. Slevin and M. G. Murray for appellants.
    (1) To effect a statutory dedication, the requirements of the statute must be complied with. Putnam v. Walker, 37 Mo. 600. (2) It is essential to every valid dedication at common law that it should conclude the owner, and that, as against the public, it should be accepted by tbe proper local authorities or by general public user. Elliott on Roads and Streets (3 Ed.),, sec. 122; Becker v. St. Charles, 37 Mo. 13; Landis v. Hamilton, 77 Mo. 554; St. Louis v. St. Louis University, 88 Mo. 155; Baker v. Vanderburg, 99 Mo. 378; Meiners v. St. Louis, 130 Mo. 274; Hill v. Hopson, 150 Mo. 611; McGrath v. Nevada, 188 Mo. 102; Skrainka v. Oertel, 14 Mo. App. 474; Baker v. Squire, 77 Mo. App. 329; Bituminous 'Pav. Co. v. McManus, 144 Mo. App. 593; Drimmel v. Kansas City, 180 Mo. App. 339. (3) A common-law dedication operates by way of an estoppel in pans. Elliott on Roads & Streets (3 Ed.), sec. 125; Dillon on.Mun. Corp. (5 Ed.), sec. 1071. That is to say, a proprietor will be estopped as to his grantee to deny the existence of the street, because his deed says there is one. (4) But merely laying out grounds, or merely platting and surveying them, without throwing them open to use or actually selling lots with reference to the plat, will not constitute a dedication. Elliott, Roads & Streets (3 Ed.), sec. 128; Kruger v. Constable, 116 Fed. 722; Holly Grove v. Smith, 63 Ark. 5; Perfle v. Reed, 81 Cal. 70; Berry v. McComb City, 69 Miss. 882; Jones on Easements, sec. 242. (5) But, postulating these two essential elements of a common-law dedication, viz., a plat and a sale of lots with reference thereto, nevertheless prior to acceptance or public user, the proprietpr and his grantee or grantees, can mutually agree to revoke or annul the tentative dedication. Dillon, Mun. Corp. (5 Ed.), secs. 1090, 1091; Elliott, Roads & Streets (3 Ed.), sec. 172; Jones, on Easements, sec. 242; Becker v. St. Charles, 37 Mo. 19; St. Louis v. University, 88 Mo. 159; Board of Comrs. v. Young, 59 Fed. 96; In re Brooklyn Street, 118 Pa. St. 646; Norfold v. Nottingham, 96 Ya. 38. (6) And similarly when all the grants of a proprietor have converged in one person, the tentative dedication may be revoked or annulled, since, unless he invoke estoppel, there is no derivative right in the municipality so to do; Ms rigM in tMs respect being private and personal. Dillon on Mnn. Corp. (5 Ed.), secs. 1090, 1091. And furthermore, one may not have an •easement in his own property. Jones on Easements, sec. 166. (7) A municipality in Missouri acquires an easement only in streets and alleys by virtue of a declination, whether statutory or at common law. Snoddy v. Bolen, 122 Mo. 491; Thomas v. Hunt, 134 Mo. 403; Elevator Co. v. Railroad, 135 Mo. 366. (8) The Statute of Limitations will bar an easement. Washburn on Easements (3 Eel.), 672; Boyce v. Railroad, 168 Mo. 594. And since the year 1847 the period is ten years. Leiweke v. Link, 147 Mo. App. 19. (9) Prior to the enactment of the statute of 1865 (G-. S. 1865, sec. 7, p. 746, now Sec. 1886, R. S. 1909), municipal corporations were subject to the bar of the statute. Crigler v. Mexico, 101 Mo. App. 624; Callaway Co. v. Nalley, 31 Mo. 393; Insurance Co. v. St. Louis, 98 Mo. 422; Railroad v. Totman, 149 Mo. 657; Bonsor v. Madison Co., 204 Mo. 84. (10) That statute went into effect on August 1,1866, and was prospective only in its operation. Callaway Co. v. Nolley, 31 Mo. 393; Insurance Co. v. St. Louis, 98 Mo. 422; Coleman v. Drawe, 116 Mo. 387; Dice v. Hamilton, 178 Mo. 81. (11) Actual, open, exclusive, notorious and adverse possession of the servient estate for the period of ten years will bar a claim of easement by analogy to the statute barring actions for the recovery of land. Scruggs v. Scruggs, 43 Mo. 142; Wilkerson v. Eilers, 114 Mo. 245; Miller v. Rosenberger, 144 Mo. 292. (12) And actual, open and notorious possession is of itself sufficient evidence that it was adverse, when there is no evidence tending to show that the possession was permissive or under license or contract. Miller v. Rosenberger, .144 Mo. 292; Boyce v. Railroad, 168 Mo. 593. (13) Under certain •circumstances the plea of equitable estoppel in pais will be upheld against the claim of a municipality to an easement for street purposes. Lumber Co. v. Oshkosh, 89 Wis. 449; Jordan v. Chenoa, 166 111. 530. (14) Conveyances inter partes, though referring to a plat and designated streets and alleys delineated thereon, will not effect a dedication at common law in the absence of any evidence of acceptance or public user. Nor will such deeds effect a rededication after the Statute of Limitations has barred the claim of easement. Cotter v. Philadelphia, 194 Pa. St. 496; Scott v. Railroad, 222 Pa. St. 634. (15) Maps and surveys are not evidence of a dedication when there is no evidence that the streets have been opened and are used by the public. 37 Cyc. 157; Ottawa v. Ventzer, 160 111. 509; Down-end v. Kansas City, 156 Mo. 60. (16) The action of the assessor in exempting these strips from taxation does not constitute evidence of their acceptance by the municipality. St. Louis v. German, 29 Mo. 593; Busch-man v. St. Louis, 121 Mo. 523; Cooper v. Railroad, 230 Mo. 81.

      William E. Baird and Charles M. Dawes for respondent.
    (1) Acceptance by the city was not necessary to complete a statutory dedication. The estate became vested in the public by grant. Reid v. Board of Education, 73 Mo. 304. (2) The statute excepting lands' devoted to public Rise from the Statute of Limitations became operative August 1,1866. G. S. 1865, sec. 7, p. 746; now Sec. 1886, R. S. 1909. (3) The Statute of Limitations does not run against cities in a highway case unless private or contract obligations, rather than public rights, are involved. Elliott on Streets & Roads (2 Ed.), sec. 882; St. Louis v. Railroad, 114 Mo. 24; Insurance Co. v. St. Louis, 98 Mo. 422. (4) One who makes a statutory dedication of a street, and sells or conveys lots with reference to the plat, cannot recall his dedication. Elliott on Streets & Roads, p. 128; Shea v. City, 67 Iowa, 39; Archer v. Salinas City, 73 A. & E. Oorp. Cases, 164. (5) To create title by adverse possession it must be shown that possession was actual, open, notorious, and under claim of ownership. Iiunnewell v. Burchett, 152 Mo. 611; Hunnewell v. Adams, 153 Mo. 440; Stone v. Perkins, 217 Mo. 586; Heckescher v. Cooper, 203 Mo. 278; Milling Co. v. Riley, 133 Mo. 574. (6) The burden of proving adverse possession is upon the party asserting it. Mo. L. M. Co. v. Jewell, 200 Mo. 707. (7) The acceptance of a deed to land waives the right claimed by adverse possession. Keith v. Keith, 80 Mo. 128. (8) Recognition of the title of the former owner defeats the claim of title by adverse possession. Taylor v. Planet P. & F. C., 78 Mo. App. 137; Tomlinson v. Lynch, 32 Mo. 160; Keith v. Keith, 80 Mo. 128. (9) The filing of a plat not complying with the statute and the subsequent making of conveyances describing property as abutting upon the streets platted constitute a common-law dedication. Hannibal v. Draper, 15 Mo. 640; Heitz v. St. Louis, 110 Mo. 624; Thurston v. St. Louis, 51 Mo. 512; Buschman v. St. Louis, 121 Mo. 523; Railroad v. Boker, 183 Mo. 322; White v. St. Louis, 153 Mo. 80. (10) Where lots are sold with reference to a plat by the dedicator, such streets abutting the lots are dedicated to the public, and not only the purchaser of the lots, but also the public by its officers, can insist on the streets being opened. 9 Am. & Eng. Ency. Law, p. 65; Heitz v. St. Louis, 110 Mo. 618; White v. St. Louis, 153 Mo. 90; McGinnis v. St. Louis, 157 Mo. 191; St. Louis v. Barthel, 256 Mo. 277. (11) When intent of owner to dedicate is clearly shown, no acceptance on part of public is necessary. Milling Co. v. Riley, 133 Mo. 584; Elliott on Streets & Roads (2 Ed.), sec. 114. (12) Where the public authorities have done acts recognizing the existence of highways and treating them as such, this constitutes an implied acceptance. Elliott on Streets & Roads, sec. 115; 9 Am. & Eng. Ency. Law, p. 49. (13) When the city accepts the dedication of one street on a plat it accepts all streets and alleys set out on tlae plat. Heitz v. St. Louis, 110 Mo. 619. (14) The right of the city to maintain title to a street which is not traveled by the public is well settled. Downeno v. Kansas City, 156 Mo. 60; Meiners v. St. Louis, 130 Mo. 284; Baldwin v. Springfield, 141 Mo. 205; Products Co. . v. St. Louis, 246 Mo. 461.
    STATEMENT.
    Plaintiff sues to quiet title to certain streets and alleys in North St. Louis, to which he has obtained quitclaim deeds from the ad-joining proprietors. The petition alleges that plaintiff is the owner in fee simple title by the adverse possession thereof for fifty-seven years, of the lands in question, describing them, and adds that the city of St. Louis claims some title or interest in the property as an easement for street and alley purposes under two duly recorded plats, one executed by George Buchanan, August, 1852, and the other by the commissioners in an amicable partition between the heirs of George Buchanan in January, 1866. The answer set up dedication of the lands and their use as public highways by the defendant city. The reply alleged that whatever easement the city had acquired it had lost by abandonment and nonuser and adverse possession of the plaintiff as alleged in his petition.
    On the trial the evidence showed that the dedication made by George Buchanan in the plat referred to in plaintiff’s petition was in conformity with the statutory requirements. The evidence also disclosed that upon the death of George Buchanan, the remainder of his estate was amicably partitioned between his heirs, and that the report of the commissioners who affected the partition, together with a plat thereof, on which was designated the respective allotments of the land divided by them, and also the streets and alleys laid off by them under tbeir authority to act as commissioners, was duly recorded in the recorder’s office of' the city of St. Louis. That upon the filing of this plat the heirs perfected their partition by exchanging deeds wherein the property was described as being bounded by the streets and alleys marked and designated on the plat and referred to as such in said deeds. The said report and the plat marked “A” accompanying it was filed for record in 1866. The evidence further showed that prior to the partition amongst the heirs of George Buchanan, a partnership, of which the original plaintiff, Christian F. Liebke, was a member, held a lease upon the lands made by the executors of George Buchanan, who died in 1852, under the terms of a will empowering them to make a sale or other disposition of his property. Said lease was dated July 24, 1857, and ran for nine years, and described the property in question and demised it “excepting the streets and alleys which are, or hereafter may be, laid out through said premises.” It was these leased premises which were ■subsequently-partitioned among the heirs. The testimony also disclosed that the streets and alleys laid off in the plat prepared by the commissioners and designated thereon have never been taxed by the city of St. Louis since the filing of their report, and that Kenneth street, later named Hall street, and one of the streets included in Plat “A,” was improved' by the city and by ordinance, and upon condemnation proceedings widened, and has been used as a public street for many years. Plaintiff gave evidence as to the nature and length of the possession taken by him under the aforesaid lease to his firm and the subsequent acquisition by him of quitclaim deeds to the streets and alleys described on the commissioner’s plat, marked “A.”
    The testimony as to the possession of the plaintiff tended to show that it began in August, 1857, under' the lease of that date. That it was manifested by a-fence enclosing the property, as a part of a large tract of ground upon which a sawmill plant was located; that the said sawmill plant was erected by the firm of which he was a member immediately after the execution of the lease to them; that the tract of land-at that time was situated so as to be subjected to the overflow of the river on the south side, but was somewhat higher on the north side where the sawmill was erected. That plaintiff used the submerged portion of the land to bring down floats from the upper waters of the river, containing rafts of logs which would be carried as close up towards the mill as the water would permit, and there anchored until the waters receded, leaving them resting on the ground. That on other portions of the premises stables, two houses and other structures needed by the firm were located; that the fencing of the ground continued until 1885 or thereafter; that the sawmill was destroyed in 1890 and replaced by another which was built without reference to the streets and alleys designated on plat “A;” that C. F. Liebke, the original plaintiff, acquired the interest of his co-partners in the firm to which the lands had been leased by the executors of George Buchanan. The evidence further tended to show that the tract of land when leased to plaintiff-in 1857 was practically a swamp, and that at the time the commissioners’ plat was made in 1866 the streets and alleys appearing thereon were from twenty-five to thirty feet below the grade of Second street. At the time of the trial the land in question by accretions and aided by filling in on the part of the plaintiffs has been brought up to the grade of Second street, and was a valuable property adapted to the uses of lumber yards.
    For the city there was also evidence tending to show a request subsequently withdrawn by the plaintiff for an ordinance vacating the streets and alleys described on the commissioners ’ plat and other documentary evidence bearing on the nse and the acceptance of such streets and alleys by the defendant city.
    Upon the conclusion- of the testimony the trial court rendered a judgment dismissing plaintiff’s suit, from which an appeal was taken to this court. Pending the appeal, the original plaintiff died, and the cause has been revived in the names of his testamentary trustees.
   OPINION.

I.

BOND, J.

(After stating the facts as above.) — The pleadings and proof in this case require an application of the law governing the right of a city to acquire streets and alleys by a statutory and a non-statutory dedication and of the rule relating to the effect upon such titles of adverse possession for the period of ten: years.

The dedication of so much of his estate as was. shown on the properly executed, acknowledged and recorded plat made by George Buchanan in his lifetime was in strict statutory form and vested title to the streets and alleys therein designated, without any act on the part of the city and was thereafter irrevocable by the dedicator or his heirs. The estate thus conveyed was a public easement in the land shown by the plat to-be set apart for streets and alleys, the beneficial ownership to the center of the streets remaining in the abutting owner. [R. S. 1909, sec. 10294; Union Elevator Co. v. K. C. Suburban Belt Ry. Co., 135 Mo. l. c. 366; Thomas v. Hunt, 134 Mo. l. c. 403; Snoddy v. Bolen, 122 Mo. l. c. 491.]

About nine years after the death of George Buchanan, the remainder of his lands not included in the-plat executed in his lifetime and which had been leased by his executors, were subdivided-and platted by certain commissioners appointed to partition them by his.. heirs, so that the respective allotments should be bounded by certain streets and alleys which should be dedicated to the city. This plat, though not acknowledged, was duly recorded as required by law. It was therefore a common law or a non-statutory dedication just as efficacious as a statutory dedication would have been, provided it was accepted by the city in any of the ways recognized by law, or provided the owners by any acts having that effect have estopped themselves to question the dedication. [Whyte v. St. Louis, 153 Mo. l. c. 90; Railroad v. Baker, 183 Mo. l. c. 322; Buschmann v. St. Louis, 121 Mo. 523; Heitz v. St. Louis, 110 Mo. l. c. 624; Thurston v. St. Joseph, 51 Mo. l. c. 512; City of Hannibal v. Draper, 15 Mo. l. c. 640; Baker v. Squire, 143 Mo. l. c. 98; Baker v. Squire, 77 Mo. App. l. c. 332.]

In this case there was evidence tending to show that the city accepted the dedication of the streets and alleys marked in the unacknowdedged plat, by omitting them entirely from any assessment for taxes and by taking charge of one of the streets — Kenneth street, designated on said Plat ££ A”- — and improving it under ordinance passed for that purpose, changing its name and causing it to be widened by a condemnation proceeding ; that all of the maps denoting the official highways of the city have included the streets and alleys mentioned set apart in Plat ££A” as is shown by the records of the office of the Board of Public Improvements and the street commissioner.

The evidence further disclosed that immediately upon the filing of the report of said commissioners in partition, the heirs of George Buchanan executed deeds inter sese, describing the lands by the boundaries afforded by the streets and alleys, set out on said plat. Under these circumstances, we conclude that the dedication of the street in said plat ££A” was complete, both as to the heirs of George Buchanan and the city, and vested a public easement in such property just as much as if said plat had been duly acknowledged before it was recorded.

II.

This leaves for discussion the point made by appellants that the evidence for plaintiff: disclosed an adverse possession by him, beginning prior to August 1, 1866, when the statute, excepting lands devoted to public use from the Statute of Limita^ong^ ]3ecaine operative (Johnson v. Rasmus, 237 Mo. l. c. 592), which ripened into a fee simple title to the streets and alleys in question. In determining that question, it must be borne in mind that the instant case is one at law, for though brought under section 2535 it is predicated upon the assertion of a legal title in fee simple to the property described in the petition, and there is nothing in the answer or the relief asked therein which converts it into an action in equity. [Toler v. Edwards, 249 Mo. l. c. 159, and cases cited.]

Plaintiffs’ claim of title by the Statute of Limitations, or by abandonment, if available at all, presented issues properly triable by jury. [Kansas City v. Smith, 238 Mo. 323.] Furthermore, it is conceded by the learned counsel for appellants, and such is the law, that no rights or title accruing from adverse possession could accrue to plaintiff (appellants) unless plaintiff began an actual, open, and notorious possession of the streets and alleys in dispute under a claim of ownership prior to the 1st of August, 1866, when the statnte was enacted, which prevented the running of the Statute of Limitations upon adverse possession against the defendant city. The evidence adduced by appellants in support of their contention relates to the occupancy and enclosure of some of the property under a lease made to a partnership of which the original plaintiff was a member in 1857. Both that lease and the subsequent deeds which plaintiff obtained from the coparceners after the municipal partition recognized the existence, present and future, of the streets laid out on the plat and the dedication made in the lifetime of George Buchanan, and those designated on the plat made by the commissioners in partition after his death. That circumstance was proper for consideration by the trier of the facts in passing upon the issue as to adverse possession, as was also the fact that said land was never taxed by the city and that an ordinance was presented to the city for the vacation of these streets which appellant testifies was withdrawn at his request. The credibility and weight to be given testimony as to adverse possession was peculiarly a matter within the determination of the trial judge sitting as a jury. No instructions were asked or given in this case. Nor any exceptions interposed during the course of the trial, which are presented for review. In such cases we cannot substitute our theory of the weight of the evidence and the credibility of the witnesses for that of the trier of the facts, and must sustain his findings, if reasonably justified by any rules of law applicable to the pleadings and evidence. [Scarritt Estate v. Casualty Co., 166 Mo. App. l. c. 570.] He has made his finding on the issues against the appellant, and under this record it is not subject to review by us. The result is, that the judgment for defendant is affirmed.

.All concur.


author: RAILEY, O.

text:
    EDGAR A. JARMAN et al., Appellants, v. SCHOOL DISTRICT OF UNIONVILLE et al.
    Division One,
    April 1, 1915.
    MAXIMUM INDEBTEDNESS: School District: Merchant’s License. ■ In determining the amount of indebtedness a school district may incur under sections 11 and 12 of article 10 of the Constitution, the aggregate amount of merchants’ and manufacturers’ licenses should be considered as a part of the property subject to taxation for the payment of such indebtedness: If the amount of the bonds to be issued, including existing indebtedness, does not exceed fire per cent of the aggregate taxable value of all property in the school district, including the amount of such merchants’ and manufacturers’ licenses, the total indebtedness does not exceed the constitutional limitation. Merchants’ and manufacturers’ goods and stocks are personal property, subject to an ad valorem tax, and are taxed as such.
    Appeal from Putnam Circuit Court. — Hon. George W. Wcmamaker, Judge.
    Affirmed.

      E. A. Jarman and B. L. Robison for appellants.
    (1) Merchants’ and manufacturers’ statements form no part of the “assessment” and should not be counted in determining the amount of indebtedness a school district should incur. Constitution, art. 10, secs. 11 and 12; R. S. 1909, secs. 11623, 11646; R. S. 1879, sec. 6318; State ex rel. v. Railroad, 116 Mo. 15; Thorn-burg v. School District, 175 Mo. 12; Southworth v. Glasgow, 232 Mo. 108. (2) The amendment to Sec. 6899, R. S. 1889, now Sec. 11623, R. S. 1909, in 1895, has not changed the rule of the cases above cited, because sections 11 and 12 of article 10 of the Constitution prescribe the taxing powers of school districts and must be strictly construed, as must all powers of municipal corporations. 1 Dillon on Mun. Corps. (4 Ed.), 89, 509; 28 Cyc. 1575; 38 Cye. 647; Carthage v. Light Co., 97 Mo. App. 20. And statutory enactments must harmonize with the provisions of the Constitution. Kansas City v. Thornton, 152 Mo. 570.

      N. A. Franklin, J. G. McKinley and Lorenzo Jones for respondents.
    (1) Under the Constitution and laws of Missouri school districts are permitted to incur an indebtedness not exceeding in the aggregate five per cent ‘ of the value of taxable property therein,” to be ascertained by the assessment next before the last assessment for State and county purposes. Constitution, aft. 10, sec. 12; R. S. 1909, sec. 10778. (2) Merchants’ stocks of goods are a part of the taxáble property in the district, as well as a part of the assessment for State and county purposes, and should be taken into accouht in determining the amount of the indebtedness that may be incurred by the school district. R. S. 1909, sec. 11623; Thornburg v. School District, 175 Mo. 28 ; feouthworth v. Glasgow, 232 Mo. 108; Baush v. Cabool, 165 Mo. App. 486.
   RAILEY, O.

The plaintiffs, who are citizens and taxpayers of the city and school district of Unionville, Putnam county, Missouri, on August 25, 1914, filed in the circuit court of Putnam county, their first amended petition against said school district, the members of the board of directors of said district, and J. T. Morgan, clerk of the county court of said county, in which they charge that at the annual election held in said school district on April 7, 1914, there was submitted to the qualified voters thereof a proposition to incur an indebtedness for thirty thousand dollars for the purpose of erecting a new school building. At said election there were cast “For the Loan” 304 ballots, and “‘Against the Loan” 99 ballots, thus giving more than two-thirds of the total vote cast for the incurring of the indebtedness.

It is alleged that defendants composing said board advertised for proposals for the purchase of said bonds, to be -issued pursuant to said election, and have contracted for ,the sale of said bonds with Francis Brothers & Company of St. Louis, Missouri; that Putnam county is organized and governed under what is known as the Township Organization Law of this State. . - . .

It is alleged that the total taxable property In said school district on June 1, 1911, on which.taxes fop 1912 were levied, including merchants’ and manufacturers’ licenses, amounted in the aggregate to $747,-197.62; that the total valuation of said property, excluding that under merchants’ and manufacturers’ licenses, was $678,757.52 for the 1911 assessment, and $686,992.62 for.the year 1912; that five per cent of said amounts, the greatest sum for. which the said, district may become indebted, is $33,937.87 for 1911 assessment, and $34,349.63 for the 1912 assessment.

It is averred that there is already an outstanding indebtedness of said district of $5000, making a total indebtedness for said district, if said bonds for $30,000 áre issued, of $35,000, which is in excess of the indebtedness said school district may lawfully incur.

It is further alleged that said board of directors are preparing to. issue said bonds, to negotiate same, and to levy a tax upon the taxable property situate in said district for the purpose of creating a sinking fund for the payment of said bonds and to pay the interest on said bonds; that said county clerk is about to extend said taxes on the tax books of Putnam county, against the property of plaintiffs and others in said district, and that the . issuing of said bonds would cause a multiplicity of suits.

The above petition, was demurred to by defendants, for the alleged reason that it failed to state a cause of action. The demurrer was sustained; plaintiffs refused to plead further, stood upon said petition, and a final judgment was entered in due form in favor of said defendants. The cause was duly appealed to this court, and wé are called upon to determine whether said petition state's a cause of action.

Appellants contend that merchants’ and manufacturers’ statements form no part of the “assessment” and should not be counted in determining the amount of indebtedness a school district might incur.. On the other hand, respondents concede that if the merchants’ and manufacturers’ licenses are to be excluded in determining the value of taxable property in the school district, then the proposed bond issue is in excess of the constitutional limit of indebtedness, as prescribed in sections 11 and 12 of article 10 of the Constitution of Missouri, and the cause will have to be reversed.

In State ex rel. Kidder School District v. Kinney, 48 Mo. l. c. 375, this court, in construing the law as it stood in 1868, speaking upon this question, through Judge Bliss, said: “No more comprehensive language could be used than is contained in both acts. The one provides for entering in the merchants ’ tax book the amount of each kind of tax levied upon the goods, and the other provides that boards may levy taxes upon all property within the district, to be collected as state and county taxes. No exception is made, or exemption provided for, in favor of merchandise, either in the'acts under consideration or in the general revenue law; nor can any be implied from the peculiar mode of ascertaining the taxable value of such merchandise.”

So that, as the law existed in 1868, and of course before the present constitution was adopted, meU chants’ and manufacturers’ licenses were subject to taxation, with other property located in the school district. The principle of the foregoing case was upheld in City of Cape Girardeau v. Riley, 72 Mo. l. c. 223, under the law as it stood prior to 1875.

In State ex rel. v. Tracy, 94 Mo. 217, 221, this court followed the ruling in State ex rel. v. Kinney, 48 Mo. l. c. 375, supra. On page 225, Judge Black, referring to the above case, said: ‘ ‘ The merchant’s license tax law was the same as now; and the defense was, that there was no law authorizing these school corporations to tax merchants’ statements.” Then follows the above quotation from the Kinney case, supra. He sustained relator’s right to levy the tax in question upon merchants’ licenses.

In State ex rel. Allen v. K. C. St. J. & C. B. Ry. Co., 116 Mo. 15, and following, the collector of Holt county, Missouri, sued defendant for delinquent taxes for the year 1888. A controversy arose as to whether the merchants’ licenses should be considered in fixing the value of the property in said county for taxation. If included, it made the value of taxable property in said county in excess of six million dollars, and under the provisions of our Constitution only forty cents on the one hundred dollars’ valuation could be levied. If the total value of said property were less than six million dollars, then fifty cents on the one hundred dollars ’ valuation could be levied.

In view of the subsequent change in the statutes upon this subject, we will set out section 6896, Revised Statutes 1889, which reads as follows:

“Merchants shall pay an ad valorem tax equal to that which is levied upon real estate, on the highest amount of all goods, wares and merchandise which they may have in their possession or under their control, whether owned by them or consigned to them for sale, at any time between the first Monday of March and the first Monday in June in each year . . .”

As section 6899, Revised Statutes 1889, was repealed (Laws 1895, p. 223, and following), we simply quote what Judge Burgess said in reference to same, at page 22 of above volume: ‘‘ The merchant is required to file a sworn statement with the county clerk, on the first Monday in June in each year, of the greatest amount of goods on hand at any time between the first Monday in March and the first Monday in June next preceding; and upon this statement the fax is directly levied. [R. S. 1889, secs. 6896, 6899, 6900.] The merchant’s goods and stock in trade never go on the assessor’s books at all, nor has the assessor anything whatever to do with it. Neither the assessor nor the board of equalization ever act upon it in any manner. ’ ’

Judge Burgess, on page 23 of above volume, disposed of the question under consideration, as follows: “The tax of merchants and dramshop keepers, although they are required to pay an ad valorem tax on their stock in trade, is in the nature of a license tax, and the property upon which the taxes are thus paid does not go into and form a part of the general wealth of tbe county witbin the meaning of the revenue laws upon which taxes are levied for revenue purposes. No such property is listed by the assessor. The county court is required to fix the rate of taxation and make the levy at the May term (R. S. 1889, sec. 7663), while merchants’ statements are not to be filed until the first Monday in June of each year. The tax on merchants constitutes a separate and distinct class of itself.”

He held that the merchants’ licenses should not be considered in fixing the rate of taxation, etc. It does not appear from the above opinion that either of the other Missouri cases referred to above were considered or distinguished. As the law, however, has been materially changed since the above case was decided by Judge Burgess, we deem it unnecessary to undertake to review the conclusions reached in that case, except in a general way.

In 1896, this court, in City of Aurora v. McUannon, 138 Mo. 45, in discussing an ordinance' of said city relating to taxation, said: “The ad valorem tax which they pay under this system is not a license or occupation tax, but a personal property tax, authority to levy which is expressly given by section 1588, Revised Statutes 1889. [State ex rel. v. Tracy, 94 Mo. 217.] ” See Sec. 1588, art. 5, R. S. 1889. We simply call attention to this quotation for the purpose of showing that merchants’ licenses are considered for the purposes of taxation as personal property.

The case of Thornburg v. School District No. 3, 175 Mo. 12, and following, relied on by plaintiffs, when carefully considered, sustains the action of the court below, and is opposed to the views maintained by appellants. On pages 30 and 31, Judge Valliant, in discussing this question, said: “It has also been decided that the value of merchants ’ stocks was not to be taken into account in estimating the taxable value of property in the county. [State ex rel. v. Railroad, 116 Mo. 15.] Yet merchants’ stocks were included in the estimate on which the directors relied when they issued those bonds. Deducting, as we must, from $74,889 (the assessment of 1882), the railroad property, $27,292, and the merchants’ stocks, $9180, only the-sum of $38,417 remains as the basis on which the board, of directors, if they had been so authorized by the assent of the voters, could have predicated a bond issue,, five per cent on which basis would have been $1920.85. For this reason, even if the assent of the voters had been obtained, the issue of bonds to the amount of $3500 was in violation of the clause of the Constitution above quoted, and the bonds were invalid.”

It will be observed from the concluding portion ®f said opinion, that Brace, P. J., and Marshall, J., dissented from paragraph three which included the above quotation. Judge Rorinson was absent, and hence the language above quoted simply represented the individual opinion of Valliant, J., and in which no other member of the court concurred. This opinion, like the others, was construing the law as it existed prior to 1895. The Legislature of this State, by an act approved March 2, 1895, Laws 1895, pp. 223, 224, repealed section 6899 of chapter 111, Revised Statutes-1889, heretofore referred to, and re-enacted a new section with the same number. As this act was soon-, after amended, we shall not pause to discuss the same..

The Legislature of Missouri, by an act approved March 24, 1897, amended the Act of 1895, supra, by inserting after the words “1889,” and before the word “provided,” in .the 57th line of said act, the words: “and the sum of the valuation of the statements as equalized by the county board of equalization shall be included in and made a part of the total valuation of property taxable for all purposes.” (Italics are ours.)

The above acts of 1895 and 1897 were carried into the Revision of 1899', and are there known as section '8546. Said section 8546, without change, was carried into the Revision of 1909, and is there known as section 11623, and the significant language used in the Act of 1897, heretofore quoted, still appears as the law of this State. It is evident that this amendment was made in 1897 to obviate the inconsistencies which appeared from the adverse rulings of the court in respect to this subject. The Legislature evidently intended to settle the controversy, by placing merchants’ and manufacturers’ licenses on the same footing with other property in the school district, when it became necessary to ascertain the value of all taxable property in said district. We can see no good reason for having this class of property excluded, when it represents value, any more than any other property located within the jurisdiction of the district.

Since the amendment of 1897, supra, the Court in Banc, in the case of State ex rel. Carleton Dry Goods Company v. Louis Alt, License Collector, 224 Mo. 493, and following, reviewed to some extent the question under consideration here, but the Act of 1897, above mentioned, was not referred to in said opinion. Judge G-antt, in speaking for the Court in Banc, on pages 506-507, said: “The taxation of merchants and manufacturers in this State, though nominally and in form a license tax, is, in fact, as often held by this court, ■a property tax, and not merely an occupation or license tax, cmd the merchants’ statements furnish a basis alike for State, school and «mmicipal taxation. [State ex rel. v. Kinney, 48 Mo. 374; State ex rel. v. Tracy, 94 Mo. 217; Cape Girardeau v. Riley, 72 Mo. 220; Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Ashbrook, 154 Mo. 375.] ... In this State merchandise is not listed for taxation as other personal property, but instead the merchant must apply for a license to trade as such, and without which he subjects himself to a forfeiture to be recovered by indictment. He must give bond conditioned for the payment of the tax. It is, however, provided that merchants shall pay an ad valorem tax equal to that which is levied upon real estate, on the highest amount of goods, wares and merchandise which they may have in their possession at any time between the first Monday •of March and the first Monday of June in each year. It is this amount, furnished by a sworn statement of the merchant, that forms the basis upon which the various .state, county, school and mmdcipal taxes are levied.”

The language used by Judge Gantt in the above ■case, without any reference to the amendment of 1897, •sustains the action of the trial court in holding that merchants ’ and manufacturers ’ licenses should be taken into account in determining the valuation of property in the school district for the purposes of taxation.

In the recent ease of Bauch v. Cabool, 165 Mo. App. 486, Judge Gray, of the Springfield Court of Appeals, discussed the question under consideration here in a very clear and forceful manner, and reached the same conclusion as the trial court. It is insisted by appellants that Judge Gray predicates his opinion upon section 11623 as amended in 1895,.and that the author of said opinion had no authority as judge of said court to pass upon the construction of the revenue laws of oiir State, under the Constitution. Counsel for appellants seem to have overlooked the fact that the law of 1895 was materially amended in 1897, as heretofore suggested. We do not deem it necessary to discus's tlie proposition as to ’whether the Springfield Court of Appeals had, or had not, jurisdiction over the matter referred to in above opinion. The reasoning, however, indulged by Judge Gray is very persuasive, and meets with our approval.

In the case of Southworth v. Glasgow, 232 Mo. 108, the question under review here was before the Court in Banc, and Judge Graves, concluding paragraph five of said opinion, said: “Under these circumstances it becomes unnecessary to discuss the question as to the merchants ’ assessment. ’ ’ The case was disposed of upon other grounds.

We are clearly of the opinion that the merchants’ and manufacturers’ licenses set out in the petition were properly considered by the trial court in determining the value of the property in said school district liable for taxation. The action of the trial court in sustaining the demurrer to appellants’ petition was correct, and is hereby sustained.

The judgment of the court below is accordingly affirmed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bailey, C., is adopted as the opinion of the court.

All the judges concur.


text:
    ELIZABETH CURRAN, Appellant, v. CITY OF ST. JOSEPH.
    Division One,
    April 1, 1915.
    1. STREET: Recognition By City.: Duty to Repair. The mere act. of the dedication of a street, and the approval thereof by the municipality, do not, without more, impose on the city the duties as to maintenance and repair which are cast upon it by law whenever it appropriates a street to public use. But these-obligations do arise the moment the city, with or without such formalities, devotes the highway to the uses of the public by recognizing it as open for travel, or invites the public to use it as a street; and such recognition by it' may be shown either-by direct or by circumstantial evidence.

      2. -: -: -: Facts Showing Recognition. Where there was evidence tending to show that, prior to plaintiffs injuries resulting from a fall into a hole or gully in the street, the street had been dedicated to the city and the city authorities had thereafter caused rolling machines to he run over the roadway part of the street in both directions ¡therefrom; that there were telephone poles on each side of the street, and an electric light was suspended across it; that the .sidewalk space on one side had been planked over by the abutting property-owners, and on the other side was marked a pathway covered with cinders, and that said sidewalk spaces were used by the neighboring residents and the public generally, though not improved by the city; and that notice of the hole or gully in the cinder path had been given to the city authorities prior to the accident, and they had promised to mend it, there was sufficient evidence of a recognition of the street by the city as a public highway to carry to the jury the question of the duty of the city to repair the hole or gully and to maintain the path in a condition, of safety for pedestrians.
    3. -: -: Injury to Pedestrian: Demurrer. Where there is substantial evidence of the recognition of the street as a highway open for public travel, and that plaintiff, in the exercise of proper care, in walking along a cinder path in the sidewalk space, about six or seven o’clock of a December evening, fell into an oblique wash or gully running across the cinder path out into the street, which was about eighteen inches wide and a foot deep, and sustained a fracture of her thigh, it is error to sustain a demurrer to the evidence in her suit against the city for damages.
    Appeal from Buchanan Circuit Court. — Now. W. K. Amick, Judge.
    Reversed and remanded (with directions).

      Mytton & Parkinson for appellant.
    (1) The court erred in sustaining and giving, at the request of the defendant city, the instruction “to find for defendant.” Benton v. St. Louis, 217 Mo. 687; Drimmel v. Kansas City, 180 Mo. App. 351. (2) The decision in the case of Curran y. St. Joseph, 143 Mo. App. 618, is in direct conflict with the law as given in the case of Benton v. St. Louis, 217 Mo. 687. (3) The law as applied and given in an opinion by tbe Court ■of Appeals does not become tbe law of tbe case on an appeal to the Supreme Court, where the opinion is in direct conflict with a former opinion of the Supreme Court, and where manifest and far-reaching error has been committed. Hamilton v. Marks, 63 Mo. 172; Wilson v. Beckwith, 140 Mo. 369.

      Frank B. Fulkerson, L. E. Thompson and Hermann Hess for respondent.
    The trial court did not commit error in sustaining ■defendant’s demurrer, because: That part of Harvard street on which plaintiff fell had never been improved by the city of St. Joseph, or thrown open by it for use by the public, either expressly or impliedly. Hunter v. Weston, 111 Mo. 184; Kassman v. St. Louis, 153 Mo. 299; Downend v. Kansas City, 156 Mo. 60; Ely v. 'St. Louis, 181 Mo. 723; Curran v. St. Joseph, 143 Mo. App. 618; Benton v. St. Louis, 217 Mo. 687. The mere ■dedication and acceptance of Harvard street as a public street did not cast upon the city the duty of keeping it in repair. Downend v. Kansas City, 156 Mo. 60.
    STATEMENT.
    This suit was tried in 1909, and resulted in a verdict for plaintiff for personal injuries sustained in falling into a hole or gully in front of a residence known as No. 204 Harvard street, St. Joseph, Missouri. The ■circuit court sustained a motion for a new trial, from which ruling plaintiff appealed, the amount being within its jurisdiction, to the Kansas City Court of Appeals, which tribunal affirmed the ruling of the trial court .and remanded the cause to the circuit court of Buch.anan county. On the re-trial, that court gave a peremptory direction to the jury to return a verdict for defendant. From a judgment in accordance plaintiff has appealed to this court, for the reason that the .amount claimed in her petition exceeds the pecuniary limit of the jurisdiction of the Kansas City Court of Appeals. The only question presented is whether plaintiff made a case for the jury on the second trial. So much of the evidence as is material to its consideration will be stated and reviewed later.
   OPINION.

BOND, J.

(After stating the facts as above.) — While the mere act of the dedication of a street and approval thereof, by a municipality, does not, without more, impose upon it the duties as to maintenance and repair which are cast upon a city by law whenever it appropriates a street to the use of the public, yet these obligations do arise the instant a city, with or without such formalities, devotes a highway to the uses of the public by recognizing it as open for travel, or invites the public to use it as a street. And such acts on its part may be shown either by direct or circumstantial evidence. [1 Elliott on Roads and Streets (3 Ed.), secs. 167, 168, 170; Benton v. City of St. Louis, 217 Mo. l. c. 703, and cases cited; Ely v. St. Louis, 181 Mo. l. c. 729; Drimmel v. Kansas City, 180 Mo. App. l. c. 351.]

In the case at bar, the testimony for plaintiff tended to show that prior to her injuries, Harvard street had been dedicated to the city of St. Joseph and the city authorities thereafter had caused rolling machines to be run over the roadway part of said street extending on both sides of the residence on the south side of said street, where she resided at the time of the accident; that there were telephone poles and electric light poles on each side of the street, and an electric light suspended across the street west of the house in which plaintiff lived; that the sidewalk space on the north side of the street had been planked over by the property holders who resided there; that the sidewalk space on the south side of the street, where the plaintiff lived, was marked by a pathway in front of her house and two other adjoining houses which was covered with cinders. While there was no evidence that the city improved either of the sidewalk spaces in question, yet there was evidence tending to show that the sidewalk spaces on both sides of the street were used not only by the residents but by the public generally, including children on their way to school, and persons making deliveries to the houses situated there. The evidence further tended to show that plaintiff was injured about sis or seven o’clock on the evening of December 17, 1907. She had crossed the street to make some inquiries about the time a Burlington train would go to Omaha, Nebraska. After completing the errand she returned, and after having* crossed the street and mounted the cinder path she fell into an oblique wash or gulley running across-the cinder path out in the street, which was about eighteen inches wide and a foot deep, and sustained a fracture of her thigh; there was evidence tending to show that notice of this hole in the sidewalk and street had been given to the city authorities prior to the accident, and they had promised to mend the same. These and other circumstances fully set forth in the record in this case, afforded the basis of an admissible inference that the city after its acceptance of the dedication of the street had instructed its officers to appropriate it as a public highway by the constructive work done there,on and had permitted the residents on both sides of the street and the public generally to make use of the sidewalk spaces for the purpose of travel and ingress and egress to the houses bordering the sidewalks. The dedication plat shows that the street was laid off to a width of fifty feet, which was marked by the building lines enclosing houses on both sides.

It follows under the rule above stated that the learned trial court erred in sustaining a demurrer to the case made on behalf of plaintiff and directing a verdiet for the defendant. The judgment herein is therefore reversed and the cause remanded, with directions to proceed in a maimer not inconsistent with this opinion.

All concur.