text:
    LEWIS, Appellant, v. CENTER CREEK MINING COMPANY et al.
    Division One,
    November 21, 1906.
    1. NONSUIT: When Voluntary. The taking of a nonsuit by plaintiff upon the announcement of the court that it intended to give a demurrer to the evidence, no such instruction being in fact given, is voluntary, from which no appeal lies. And the fact that appellant excepted to the ruling of the trial court in overruling the motion to set aside the nonsuit by him taken, does not alter the case. That was not “settling” the instruction in the sense contemplated by the statute. Until an adverse instruction is actually given, there is no adverse ruling of the court which finally precludes a recovery, and even then ’ an exception must be saved.
    2. -Failure to Except. Even where the trial court gives a demurrer to the evidence, if appellant fails to save an exception, that ruling is not reviewable on appeal.
    Transferred froin Kansas City Court of Appeals.
    Affirmed.

      Hoivard Gray for appellant.

      W. R. Robertson for respondents.
    The record in this case discloses a voluntary non-suit from which no appeal lies. McClure v. Campbell, 148 Mo. Ill; Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo. App. 100; State v. Ragsdale, 59 Mo. App. 590; Shannon v. Railroad, 54 Mo. App. 223; Waller v. Railroad, 83 Mo. 608; Dosier v. Jerman, 30 Mo. 216.
   GRAVES, J.

For the purpose of determining the vital question in this case, which determination must be against appellant, an extended statement of facts is not required. Appellant correctly and concisely summarizes the petition in this language:

“This suit was commenced in the circuit court of Jasper county, Missouri, on November 13, 1901. The petition is in two counts as follows: The first count alleging that defendants had sunk a shaft on lot fifty-eight in a certain addition to the city of Webb City, Missouri, and had cut drifts therefrom, and were engaged in taking zinc and lead ores from said drifts; that the plaintiff was the owner of lot sixty in said addition to said city, and that the defendants drove drifts from their said lot onto the lot of plaintiff and took and carried away therefrom a large quantity of zinc and lead ore of a certain value, for which he asks judgment. The second count alleging the same facts about the two lots and the taking of the ore therefrom, and prayed for damages on account of injury to- the property of plaintiff. ’ ’

Answer was a general denial.

Plaintiff, now appellant, offered oral and documentary evidence, all of which was- admitted. Singular to say, but in the whole record, but one objection was made and exception saved to the introduction of evidence. This objection was made by the defendant and overruled by the court and plaintiff had the benefit of the evidence.

At the close of plaintiff’s evidence, the record recites :

“Thereupon, the plaintiff rested his case and the defendant asked the court to give an instruction to the jury in the nature of a demurrer to plaintiff’s case, and upon the court declaring his intention to give said instruction, the plaintiff took a -nonsuit with leave to set the same aside.
“And thereafter, on the same day, the court caused the following judgment to be entered of record as follows (caption omitted), to-wit:
“Now on this day this cause comes on for trial, the plaintiff appearing by Howard Gray, his attorney, and the defendants appearing by H. W. Curry, their attorney, and both sides announce ready for trial and thereupon come the following jury: . . . , twelve good and lawful citizens of Jasper county, qualified by law to serve as a jury in this cause, and thereupon the trial is begun, and after hearing a part of the evidence the plaintiff takes a nonsuit with leave to file a motion to set the same aside.
“And afterwards, during said regular term of court and within four days after the judgment aforesaid, the plaintiff filed his motion to set aside nonsuit in said cause as follows (caption omitted):
“Now on this day comes the plaintiff in the above-entitled cause and moves the court to reinstate this cause and to set the same for hearing for the following reasons, to-wit:
“Because the court erred in compelling the plaintiff to take a nonsuit in order to save the court directing the jury to find a verdict for the defendants.
“Which said motion to set aside nonsuit was by the court on the 24th day of May, 1902, during said regular term, overruled: to which action, ruling and refusal of the court to grant • plaintiff a new hearing herein, the plaintiff at the time fully excepted and still excepts.
“Thereupon the plaintiff filed his affidavit for an appeal and appeal was allowed by the court to the Kansas City Court of Appeals and plaintiff given until on or before the first day of the next regular term of court within which to file his bill of exceptions in said cause.
“And now on this 25th day of November, 1902, within the time SO’ allowed and extended by the court for the plaintiff to file herein his bill of exceptions, comes the plaintiff and prays the court that the same may be signed, sealed and made a part of the record herein.
“Which is accordingly done the day and year last above written.”

We have omitted the several orders extending the time for filing bill of exceptions. The case was certified to this court by the Kansas City Court of Appeals on account of the amount claimed in. the petition, said amount being in excess of five thousand dollars. Hence, the necessity for an adjudication here.

On the foregoing state of the record the respondent contends that the nonsuit taken by plaintiff, now appellant, was voluntary, and for that reason there is nothing here for this court to review. Respondent contends, and the record shows, that the first exception taken and preserved by the appellant was to the action of the trial court in overruling his motion to set aside the nonsuit by him taken; that the record fails to show the giving of any instruction directing a verdict against appellant, or the sustaining of a demurrer to his testimony.. Under the record in this case we are of opinion that respondent’s contention should be sustained. [Greene County Bank v. Gray, 146 Mo. 568; McClure v. Campbell, 148 Mo. l. c. 112; Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo. App. l. c. 100; Carter v. O’Neill, 102 Mo. App. 391.]

It will be observed that this record does not show that the court did in fact sustain a demurrer to the testimony, or did in fact give an instruction in the nature of a demurrer. The most that can be said for the record is, that the court had declared his intention so to do. This has been expressly condemned by this court in ease of McClure v. Campbell, 148 Mo. l. c. 112, where Marshall, J., says:

“It is insisted, however, that saving an exception to the ruling on the motion for a new trial is all that is necessary, and that the court had ‘settled’ the instruction, although it had'not actually given it, and therefore the nonsuit was involuntary. The case of Greene County Bank v. Gray, 146 Mo. 568, involved a record which was in all respects indentical with the record in this case, and after a full examination of the question, Brace, P. J., in speaking for the court, held that a non-suit taken under such circumstances was voluntary, and ■ hence there was nothing for this court to review. That case meets our views and we adopt it here and reaffirm the principles it announces. It does not alter the case that the court had ‘settled’ the instructions. Until the instructions are given there is no adverse ruling of the court which finally precludes a recovery by plaintiff, for the court is required by section 2188, Revised Statutes 18891, to ‘give’ or ‘refuse’ the instructions in writing asked by the parties or may give instructions of its own motion. Until the court so acts there has been no ruling or action of the court, with respect to instructions, no matter what announcements the court may have made of its intention.”

In Greene County Bank v. Gray, supra, Brace, P. J., said: “So that while there now may be an involuntary nonsuit in equity cases from a refusal to set aside which appeal may be taken or writ of error will lie, as in actions at law, yet the nonsuit must be involuntary. To simply call it by that name will not make it involuntary. The plaintiff must be constrained to take his nonsuit by some adverse ruling of the court on the trial, which precludes a recovery in the case. No such adverse ruling was made in this case, but on a mere expression of opinion by the court that the law of the case was with the defendant and an intimation that if the case was submitted the finding would be for the defendant upon both counts of the petition, the plaintiff declined to permit the case to go to adjudication and took a nonsuit. Such a nonsuit is necessarily voluntary and the court committed no error in refusing to set it aside. The whole burden of plaintiff’s complaint here is that if the court had ruled as it intimated it would rule if the case was submitted, the . court would have committed error. The plaintiff prevented the court from committing the very error of which it complains, by taking a nonsuit, and now asks us to convict the court of an error which it never committed. This of course we cannot do. We are here, not for the purpose of trying hypothetical eases or reviewing the opinions of circuit judges, hut their actual rulings as courts in given cases. The judgment of the circuit court is affirmed. ’ ’

In the McClure case, supra, Valliant, J., dissented from the parts of the opinion we have quoted, hut had concurred in the remarks of Bbace, P. J., in the Greene County Bank case.

A distinction, which, however, avails this appellant nothing, is drawn hy Ellison, J., in Kelly-Good, fellow Shoe Co. v. Prickett, 84 Mo: App. l. c. 100, where it is said:

“It is claimed hy plaintiff that interpleader is not entitled to an appeal, since, as he claims, the nonsuit was voluntary. If this was shown hy the record we would dismiss the1 appeal. [Bank v. Gray, 146 Mo. 568.] But the record shows here that the nonsuit was taken in consequence of an adverse ruling of the court which destroyed interpleader’s case. The record shows that counsel for interpleader announced that the evidence was all in. ‘Counsel for plaintiff presents demurrer to the court, and the court announced to counsel for interpleader that he would sustain the same. To which ruling of the court interpleader objected and excepted at the time and still excepts.’ Whereupon, ‘the interpleader takes a nonsuit with leave.’
“This shows an involuntary nonsuit from which an appeal will lie. We interpret this question from the record to mean that the court did actually pass on the demurrer. The court announced the ruling in the words ‘that he would sustain the same.’ That means not that he would in the future sustain it, but that he did then sustain it. Such was the evident understanding of counsel, for he excepted to the ruling, and such was the understanding of the court, for it allowed such exception. We think, therefore, this case is to he distinguished from McClure v. Campbell, 148 Mo. 96.”

But the record in the case at bar fails to show any objection or exception to the intimation of the trial court that he would give an instruction in the nature of a demurrer. This is fatal. Suppose that the court had in fact given the instruction and the record failed, as it does now, to show an exception, could it be said in the face of our holdings for many years, that the instruction or the questions raised thereby could be here for review? ¥e think not.. Then certainly where there is a failure to except to the threatened action of the court the litigant would be in no better standing.

The record in the case of Carter v. O’Neill, 102 Mo. App. 391, is very similar to the one at bar, and Broaddus, J., after holding the record insufficient to show an involuntary nonsuit, upon the other question of a failure to' except at the time, aptly used this language : “Furthermore, all the authorities in this State are to the effect that a party, in order to have adverse rulings reviewed in an appellate court, must except to such rulings. For his failure below in that respect plaintiff is not entitled to an appeal. [See McClure v. Campbell, supra.]

So that we conclude that the record in the case at bar is not sufficient to show an involuntary nonsuit, and further that there is no exception in the record, made and saved at the proper time to save the point for review here. This conclusion makes further consideration unnecessary, and the judgment will be affirmed.

All concur.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    THE STATE ex rel. DEMOCRAT PRINTING COMPANY v. WILDER, State Auditor.
    In Banc,
    November 22, 1906.
    1. PUBLIC PRINTING: Insurance Department: Not Controlled by Printing Act. The Insurance Department is a separate and distinct department of the State government, and the disbursements of the funds belonging to that department appropriated to be used in paying its expenses, including its expenses for printing, are under the exclusive control of the Superintendent of Insurance, and accounts for printing for that department are not required to be approved by the Commissioners of Printing. Section 9028, R. S. 1899, which says that “all printing for the executive departments shall be ordered through the Commissioners of Printing,” and section 90S 1, which says that “all accounts” for printing done under the provisions of the printing act “shall be carefully examined -by the Commissioners of Printing, and when the account is corrected and adjusted and approved by said commissioners, the State Auditor shall draw a warrant upon the Treasury for the amount thereof, payable out of any moneys appropriated for that purpose,” do not apply to the printing for the Insurance Department. But chapter 119, R. S. 1899, creating the Insurance Department, conferred upon the superintendent the right to contract for printing connected . with his office, and to pay for the same out of the department funds.
    2. -: -: -: General Appropriations Act of 1905. Nor does the fact that section 31 of the General Appropriations Act of 1905, appropriating money for printing for the Insurance Department, and section 58 of the same act, providing that “all printing provided for in this act shall be done by the authority and under the direction of the State Printing Commission,” mean that the printing for the Insurance Department shall be done under the direction of the Printing Commission under the contracts entered into by the commissioners on behalf of the State for the public printing, for said section 31 also provides that “the receipts of the Insurance Department shall be paid out only on the warrant of the State Auditor, which shall be drawn only on the requisition of the Superintendent of Insurance, duly made out and approved by him,” thus bringing that act, as to the Insurance Department, into harmony with chapter 119, by section 7841 of which it is provided that the necessary expenses of the department are to be paid “on warrants drawn upon the Insurance Department fund by the State Auditor on vouchers approved by the superintendent.”

      Mandamus.
    Peremptory writ awarded.

      W. 8. Pope for relator.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry} Assistant Attorney-General, for respondent; Perry 8. Rader of counsel.
   FOX, J.

This is an original proceeding begun in this court by which it is sought to compel the State Auditor, the iespondent herein, to issue his warrant to the relator in payment of a certain claim for printing. It is unnecessary to reproduce in full the petition upon which this proceeding is predicated; it is sufficient to briefly refer to it.

On June 26, 1906, the relator, the Democrat Printing Company, filed its petition in this court asking for a writ of mandamus to' issue to the respondent, the State Auditor, directing him to issue his warrant to the relator in payment of an account for $20.75 for printing done for the Insurance Department of the State of Missouri, which account had been approved by the superintendent of that department, and for stationery, including both the paper and the printing, said printing having been done during the months of February and March, 1906. The printing for which it is sought to compel the State Auditor to draw' his warrant in payment of is set forth in“Exhibit A” as follows:

Exhibit A.
Insurance Department, State of Missouri.
To the Democrat Printing Company, for printing; 1906. Dr.
Feb. 10 To printing 400 circular letters...... $5 00
Feb. 20 To printing 100 additional lines on blanks.............................. 1 50
March 1 To 150 postal cards and printing notices thereon........................ 3 00
March 1 To 250 postal cards and printing no- > tices thereon........................ 4 00
March 1 To 100 postal cards and printing notices thereon....................... 2 50
March 9 To printing 150 additional lines on blanks............................ 175
March 15’ To printing 350 circular letters...... 3 00
$20 75
Approved this 22nd day of June, 1906, for $20.75.
. W. D. Vandiver,
Superintendent.

And on the back of said exhibit appears the following:

“Hon. W. W. Wilder, State Auditor,
“I have approved the bill on the reverse side hereof and respectfully request you to draw a warrant for $20.75 on the State Treasurer in favor of Democrat Printing Company to pay the same. I hereby certify that the bill is for printing done and materials furnished1 necessary for the transaction of the business of the Insurance Department of this State.
“W. D. Vandiver, Superintendent.”

An alternative writ was ordered by the court to issue, and was made returnable at the October term, 1906. It is not essential to reproduce .the alternative writ issued in this proceeding, nor the return of the respondent; it is sufficient to state that relator rests its right to the aid of this court upon the provisions of chapter 119, Revised Statutes 1899, and respondent in his, return justifies his action in refusing to draw his warrant for the payment of the account for printing upon the provisions of chapter 145, Eevised Statutes 1899. The contentions of the respective parties, as well as the statutes upon which such contentions are predicated, will he fully presented in the course of the opinion. Eelator interposed a demurrer to the return of the respondent and prayed for judgment upon the pleadings. The record in this proceeding consists of the pleadings, and they are now before ns for consideration.

OPINION.

The record in this proceeding sharply presents two conflicting contentions. First, it is insisted by the relator that the printing pertaining to the Insurance Department is governed and controlled by chapter 119, article 1, Eevised Statutes 1899; on the other hand, it is insisted by the respondent that the printing of such department can only be done under the authority and direction of the Commissioners of Public Printing, and is therefore governed by chapter 145, Eevised Statutes 1899. The correct solution of the propositions arising upon these two opposing contentions must be sought by a fair and reasonable construction of the various provisions of the statute applicable to the subject in hand.

The Insurance Department was created by the act of March 4,1869. Sections 1 and 2 of that act created the department and provided that the chief officer of such department should be designated as the Superintendent of the Insurance Department. Following those sections provisions were made by section 7, that the superintendent should have his office in the city of St. Louis, and it was also provided that he should procure rooms necessary for his office at a rent not. to exceed a specified sum per annum, and that he might provide a suitable safe, furniture, stationery, fuel, printing and such other things as may be necessary for the transaction of the business of his office. Section 8 of said act also provided that all of the expenses of the department should be paid out of the fees and allowances provided for in the act, and that the State should not become in any manner liable for any expenses growing out of this department or any charges connected therewith. Section 16 of that act provided for the collection of fees and assessments by the superintendent and for the payment of such fees and assessments into the State Treasury, except he was authorized to retain’ the monthly expenses by filing vouchers for the same. Section 7 of the act of 1869 was amended in the revisions of ’79 and ’89; however, such changes .do not in any way affect the proposition involved; therefore, it is unneccessary to set out in detail the changes so. made. In 1897 section 5799, Revised Statutes 1889', was repealed and a new section enacted in lieu thereof, which' is now section 7840, Revised Statutes 1899. This section provides :

“The said superintendent shall have his office in the City of Jefferson, and shall keep the same open for business from 8 a. m. to 5 p. m. every day except Sundays and public holidays; He shall have his office in the capitol building and be provided with suitable rooms therein and be furnished with a suitable safe, furniture, stationery, printing and such other things as may be necessary for the transaction of the business of his office. He shall also have one clerk at a salary of one thousand five hundred dollars per annum, and if it becomes necessary for the proper dispatch of the business of the department, said superintendent may employ additional clerical help at an expense not exceeding one thousand dollars per annum, and also to employ such actuarial work to be done as. may be necessary, all of which expense shall be paid as provided for by section 7841 out of the amount appropriated by law from the fees collected by the insurance department. The Attorney-General shall be his legal adviser, but the superintendent may, with the approval of the Governor, employ other counsel for the purpose of enforcing the insurance laws, except in criminal prosecutions. He may also employ suitable persons to make examinations as to the solvency of companies when he deems it necessary: Provided, however, that he shall not employ any person in any capacity who is an officer, agent or employee of any insurance company or association. Said office shall be deemed a public office, and the records, books and papers thereof, or on file therein, shall be deemed public records of the State. In the management of the assets of the dissolved companies, he shall employ only such clerical and other assistance as the courts having charge of the same may, in the first instance, direct.”

Section 7841, Revised Statutes 1899, referred to in the section last cited, provides: “All the expenses of the Insurance Department now or hereafter incurred and unpaid, or that may be hereafter incurred, including the salaries of the superintendent and deputy superintendent, except the expenses of examinations, valuations or proceedings, against any company, and for winding up, dissolving or settling the affairs of companies, which expenses are to. be paid by the company, or as provided by this law, shall be paid monthly out of the amount appropriated by law from the fees collected by the Insurance Department, on warrants drawn upon such fund by the State Auditor on vouchers approved by the superintendent; and all the fees received by the superintendent under the provisions of this chapter shall, immediately on receipt thereof, be paid into the state treasury by the superintendent, and shall be placed to the credit of the Insurance Department fund. The State shall not be responsible in any manner for the payment of any such expense, or of any expenses of this department, or any charges connected therewith. ’ ’

In addition to the foregoing sections we have, sections 7843 and 7844, Revised Statutes 1899, applicable to this subject, which provide:

Sec. 7843. ‘ ‘ The Superintendent of the Insurance Department shall cause to be prepared, and furnish to every insurance company doing business in this State, printed forms of the statements required by him from said companies, and he may make such changes and additions, from time to time, in the same, and in any statements required, as shall seem to him best adapted to elicit from said companies a true exhibit of their condition and management.”
Sec. 7844. “He shall also make, on or before the second Monday in February in each year, or as soon thereafter as may be practicable, to the Legislature, if the same be in session, otherwise to the Governor, to be forwarded by him to the Legislature within ten days after the next meeting thereof, a report of the affairs of the Insurance Department; which report shall contain a tabular statement, and synopsis of the annual statements, as accepted by the superintendent, of all the insurance companies doing business in this State, and such other matters as in his opinion may be for the benefit of the public; and shall make such recommendations as he shall deem proper in regard to the insurance laws of this State. Copies of the annual statements, with the deductions made by the superintendent, of all the insurance companies doing business in the State, shall be published in an appendix to the annual report therein provided, for. Not exceeding two thousand copies of such report shall be published by and subject to the order of the superintendent, at the expense of the department.”

This brings us to section 31 of the general appropriation bill for the years 1965 and 1966, page 7, Laws of 1965. This section provides: “There is hereby appropriated ,out of the State Treasury, chargeable to the ‘Insurance Department Fund,’ for the years 1965-1966, for pay of the salary of the superintendent, six thou-. sand dollars. ($6,000); for pay of the salary of the deputy superintendent, four thousand dollars ($4,000); for •actuarial services, clerk hire, including pay for one clerk at a salary not to exceed eighteen hundred dollars ($1,800) per annum, as a result of the approval of an act placing the fraternal insurance companies under the supervision of the Insurance Department, stationery, fuel, postage, printing and codifying the insurance laws of the State of Missouri, and for such other things, as may be necessary for the transaction of the business of the said department (except the expenses of examination, valuation or proceedings against any company for winding up, dissolving or settling the affairs of any insurance company), the sum of thirty thousand dollars ($30,000); for costs of litigation and expenses of collecting delinquent taxes, fees and costs* one thousand dollars ($1,000); in all, forty-one thousand dollars ($41,000). The sums herein appropriated shall be paid out of the fees and earnings of the department of insurance and the receipts of the said office. The receipts of the Insurance Department shall be paid into the State Treasury monthly, not later than the fifth day of each month, and paid out only on the warrant of the State Auditor, which shall be drawn only on the requisition of the Superintendent of Insurance, duly made out and approved by him, stating specifically the purpose for which the money is to be applied.”

These are substantially the provisions of the statute upon which relator predicates its right to the writ sought in this proceeding.

We will note the provisions of chapter 145, Revised Statutes 1899, upon which respondent bases the contention that the printing pertaining to thelnsurance Department of this State is under the supervision of the Commissioners of Public Printing. Section 9011, Revised Statutes 1899, of this chapter, provides that “the Secretary of State, State Auditor and State Treasurer shall be ex officio commissioners of the public printing during their terms of office, respectively. ’ ’

The printing contemplated by this chapter is thus classified by section 9012, Revised Statutes 1899, which provides: “The printing for the State shall be divided into three classes, to be let in separate contracts, as follows: The printing of all bills in bill form for the two houses of the General Assembly, together with such resolutions and other matters as may be ordered by the two houses, or either of them, to be printed in bill form, the printing of all reports and all communications, and other documents ordered by the General Assembly, or either branch thereof, other than such as shall be printed in pamphlet form, shall constitute the first class, and shall be let in one contract. The printing of the journals of the Senate and 'House of Representatives, and of such reports, communications and other documents as enter into and make a part of the journals of the appendixes thereto, all reports and communications and other documents ordered by the General Assembly, or either branch thereof, or by the executive departments, to be printed in pamphlet form, together with the volumes of public documents, the printing of the general and local laws and joint resolutions, shall constitute the second class, and shall be let in one contract. The printing of all blanks, circulars and other work necessary for the use of the executive departments, other than such as shall be printed in pamphlet form, shall constitute the third class, and be let in one contract: Provided, that the General Assembly or either house thereof may, by resolution, change the form of any printing that may be ordered by such house, and the class to which such form of printing shall belong shall determine the price to be paid therefor.”

Following those sections are numerous sections providing for the letting of the contract for such printing by the Commissioners of Public Printing and the manner and character of performing the work; however, as they throw no light upon the proposition involved in this proceeding it is unnecessary to reproduce them.

The duties of the commissioners in respect to the printing contemplated by this chapter are embraced in the following sections:

Sec. 9028. ‘ ‘ The Commissioners of Printing shall examine the proof-sheets of all work executed under the provisions of this chapter, and see that they are correctly printed, and that all such work is executed in a suitable manner and in accordance with the requirements of this chapter. Said commissioners shall keep an accurate account of all papers delivered to the public printer or printers and see that it is used properly and without unnecessary waste. All work to be executed for the executive departments shall be ordered through the Commissioners of Printing, and it Shall be their duty to see that the full number of copies of each job ordered is received from the printer and delivered to the proper department. They shall audit all accounts for printing and binding executed under the provisions of this chapter, and they shall keep a record of the cost of printing and binding, the amount of paper used, and the entire expense of each document or item, and a copy of each document shall be duly filed and preserved by them with the cost indorsed upon it.”

Sec. 9029. “Each contractor for any class of the public printing shall file and preserve one copy of each document or other matter by him printed for the State, which he shall deliver to the Commissioners of Printing, with his account for the same, in which account shall be specifically stated the various jobs performed, the number of copies of each job, the number of ems composition in each, the extra charge, if any, for rule or figure or rule and figure work, the number of tokens or quires of press-work in each, designating whether ordered by the Senate, the House; or jointly by both, or by other officers or agents of the State, together with the kind and quality of paper used for each job.”

Sec. 9030'. “Each contractor for the folding, stitching, covering and binding shall file and preserve one copy of every document or other matter by him folded, stitched or bound, which he shall deliver, together with his account for the same, to the Commissioners of Printing, which account shall specifically state each item, as provided for in section 9023, and the number of copies of each bill, pamphlet, resolution or document folded, stitched or covered, and the number of copies of laws, journals and documents bound.”

Sec. 9031. “All accounts filed under the two preceding sections shall be carefully examined by the Commissioners of Printing, and compared with the voucher therefor and the order for the same. If any error be found in such account by said commissioners, they shall correct the same and return it to the contractor who rendered it, and when the account is corrected and adjusted and indorsed by said commissioners, or any two of them, the State Auditor shall draw a. warrant upon the treasury for the amount thereof, payable out of any moneys appropriated for that purpose.”

These are substantially the provisions of chapter 145 applicable to the question presented for our consideration. We have thus pointed out the various provisions of the statute both in chapter 119 and 145, which in any way tend to serve the purpose .of reaching a correct solution of the propositions now under consideration, and it now remains, after a careful consideration of the various provisions of the statute, as herein indicated, to briefly announce the conclusions reached, as well as the reasons therefor, upon the question now before us.

The insurance business in this, as well as in other States, both as to life and property insurance, has grown to immense proportions, and for the purpose of protecting the people of this State who sought to deal - with insurance companies for insurance, either upon their lives or property, it was deemed advisable to create a separate and distinct department of State government applicable alone to the insurance business; therefore, in 1869 this department of State government was created and it is known in the law as the “Insurance Department;” and every line of legislation relating to this department ever since its creation up to the present time, indicates plainly that the lawmakers intended it as a separate and distinct department >of State government, which should be made self-sustaining by the collection of fees, and that the disbursement of funds belonging to such department in payment of expenses, should be under the immediate supervision of the chief officer of such department and only with his approval. After most careful consideration of this subject and the numerous provisions of the statute applicable to it we see no escape from the conclusion that the payment of the claim involved in this proceeding, for printing connected with the Insurance Department, is governed and controlled exclusively by the provisions of chapter 119 of the Revised Statutes of 1899, and that the printing pertaining to the Insurance Department is not embraced nor contemplated in the provisions of chapter 145 of the Revised Statutes of 1899, governing and controlling the Commissioners of Public Printing. It is manifest that the lawmaking power treated them as separate and distinct acts applicable to different subjects. The law creating the Insurance Department was enacted in 1869, and the Board of Commissioners for Public Printing was created in 1870; and with the exception of certain amendments to both acts they have been carried along in the different revisions of ’79; ’89 and ’99, as separate and distinct laws, embracing and covering separate and distinct subjects.

Section 7840 expressly provides that “the Superintendent of Insurance shall he furnished with a suitable safe, furniture, stationery, printing, and such other things as may be necessary for the transaction of the business of his office.” Then it further provides that all of such expenses shall be paid as provided for by section 7841. This section provides that the expenses as embraced in section 7840 shall be paid monthly out of the amount appropriated by law from the fees collected from the Insurance Department, on warrants drawn upon such funds by the State Auditor on vouchers approved by the superintendent. This section further provides that the superintendent shall immediately, upon the receipt of fees, pay the same into the State Treasury, and that such fees shall be placed to the credit of the Insurance Department fund; and to- emphasize the intention of the lawmakers to make the Insurance Department a separate and distinct branch of State government it was expressly provided that the State shall not be responsible in any manner for the payment of any of the expenses of this department, or any charges connected therewith.

As further indicating that so far as the printing of the Insurance Department was. concerned the law contemplated that it should be under the supervision of the superintendent, section 7843 provides that “the Superintendent of the Insurance Department shall cause to be prepared, and furnished to every insurance company doing business in this State, printed form of the statements required by him from said companies, and he may make such changes and additions, from time to time, in the same, and in any statements required, as shall seem to him best adapted to elicit from said companies a true exhibit of their condition and management.” Again, section 7844 provides that the reports of the Superintendent of Insurance shall be published by and subject to the order of the superintendent, at the expense of the department. Section 7849 fully recognizes the right of the superintendent to disburse, in payment of expenses, funds belonging to that department, for it is provided by that section that in his annual report, as required by section 7844, he shall set forth in his statement, verified by oath, the various sums received and disbursed by him, and from and to whom and for what purpose:

The correctness of the conclusion reached that the printing involved in this proceeding is not contemplated by the provisions of chapter 145, relative to printing by the Commissioners of Public Printing, is made manifest by the provisions of section 31 of the General Appropriations act for the years 1905 and 1906. It will be observed by that section that no part of the State’s funds are appropriated to the payment of the expenses of the Insurance Department. While the State may eventually become the beneficiary of the remainder of the funds belonging to such Insurance Department, after the payment of all expenses of such department, yet so long as. it remains in the State Treasury, credited to the Insurance Department fund, it is there for the purpose of answering the demands of expenses of the Insurance Department; and it will be further observed by this section that the appropriation for the payment of the expenses of the- Insurance Department was specially made chargeable to the Insurance Department fund for the years 1905 and 1906. It will also be noted that expenses for printing and other things necessary for the transaction of the business of such department, included in this appropriation, are made chargeable to the Insurance Department fund, and the language employed in concluding the provision of section 31 removes all doubts as to the manner in which such funds are to be disbursed connected with the Insurance Department. It is there provided that “the sums herein appropriated shall be paid out of the fees and earnings of the Department of Insurance and the receipts of the said office. The receipts of the Insurance Department shall be paid into the State Treasury monthly, not later than the fifth day of each month, and paid ont only on the warrant of the State Auditor, which shall be drawn only on the requisition of the Superintendent of .Insurance, duly made out and approved by him, stating specifically the purpose for which the money is to be applied. ’ ’

We are of the opinion that the provisions of chapter 119, heretofore referred to, creating the Insurance Department, fully indicate that it was the intention of the Legislature to confer upon the chief officer of that department the supervision of all the details connected with it, the right to contract for printing connected with his office and for such other things as may be necessary for the transaction of the business of the Insurance Department, and to pay for the same out of the Insurance Department fund, as indicated in the provisions of the statute. Such has been, ever since the creation of the Insurance Department, up to' this time, the practical construction placed upon the law by officers whose duties required them to deal with the subject, and it seems that, if the Superintendent of Insurance has nothing to do with the contracting for the printing in connection with his department, the provisions of the statute as to how he shall pay for such printing are entirely out of place in dealing with the subject by the Legislature.

It is earnestly insisted and very ably argued on the part of learned counsel for respondent that the printing involved in this proceeding connected with the Insurance Department, is governed by the provisions of chapter 145, which provides for the contracting of certain classes of printing by the Commissioners of Public Printing. It is insisted that the Insurance Department should be classed as one of the executive departments of the State and therefore the printing for such Insurance Department falls within the provisions of the third class for the executive departments as provided by section 9012, supra.

Treating the provisions of chapter 145 as a whole, we are unable to give our assent to this insistence. While it is true that the Insurance Department of the State government is dealing with the proper administration and enforcement of the insurance laws, yet we are unwilling to believe that the lawmaking power, when treating of a subject of public printing for the executive departments, had in mind the printing pertaining to the Insurance Department; nor did they regard it as one of the executive departments of the State government within the proper meaning of such terms.

While it is true that under the Constitution ■ of 1865, there was no express provision indicating as to what officers the executive department should consist, it did provide that the supreme executive power should be vested in a Chief Magistrate who should be styled the Governor of the State of Missouri; then followed the provision of the Constitution providing for a Secretary of State, a State Auditor, State Treasurer and Attorney-General, who should be elected.

We are now dealing with the law governing the subject in controversy, which presumably is in harmony with the Constitution of 1875, and when we reach that instrument, section 1, article 5, expressly provides that “the executive department shall consist of a Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General and Superintendent of Public Schools, all .of whom, except the Lieutenant-Governor, shall reside, at the seat of government during their term of office, and keep the public records., books and papers there, and shall perform such duties as may be prescribed by law.” Chapter 145 as it appears in the revision of 1899 is a revised bill, and is, therefore, for all purposes, in all respects and in every clause a new law; and it is significant in the revision of that law, the Insurance Department under the Constitution of ’75 not being one of the executive departments of State government, that there should be an absolute failure to indicate any legislative will and intent to embrace the printing pertaining to the Insurance Department within some of the classes of printing designated by section 9012. But aside from this the provision of chapter 145 indicates very clearly that the printing connected with- the Insurance Department was never contemplated by any of the provisions of that chapter.

We have heretofore pointed out the provisions of chapter 1191 which authorized the disbursement of the funds of the Insurance Department in payment of certain expenses, embracing printing, etc., only upon the requisition and approval of the Superintendent of Insurance. Now, when we come to consider the printing contemplated by chapter 145, we find under the provisions of section 9028, that it is the duty of the commissioners to audit all accounts for printing executed under the provisions of that chapter, and section 9031 substantially provides that the accounts shall be carefully examined by the commissioners of printing, and if any errors be found in such accounts by such commissioners, they shall correct the same and return it to the contractor who rendered it, and when the account is corrected and adjusted and indorsed by said commissioners, or any two of them, the State Auditor shall draw a warrant upon the treasury for the amount thereof payable out of any moneys appropriated for that purpose. These provisions make it manifest, unless they be construed as repealing the provisions of chapter 119 in reference to the payment of printing connected with the Insurance Department, that the printing connected with the Insurance Department is not embraced or in any way contemplated under the provisions of chapter 145.

It is argued that the printing connected with the Insurance Department required both the approval of the Superintendent of Insurance and the Commissioners of Public Printing. We'are unable to agree with counsel for respondent upon that proposition. The provisions of the statute are not susceptible of such construction; in fact, it is apparent that the Legislature has kept the necessary printing pertaining to the Insurance Department separate and distinct fr,om that class of printing required to be done under the direction and supervision of the Commissioners of Public Printing. In the one, the State Auditor draws his warrant at the instance of the Superintendent of Insurance ; in the other, at the instance of the Commissioners of Public Printing; and there is no provision of the statute in any way pointing to the requirements insisted upon by respondent, that the printing done for the Insurance Department shall have, in addition to the approval of the Superintendent of Insurance, that of the Commissioners of Public Printing. The provisions of chapter 145 contain no section repealing any of the provisions of chapter 119; nor are any of the provisions of chapter 119 repealed by implication. Repeals by implication are not favored-; however, it is not contended by respondent that the provisions of chapter 119 are repealed by the provisions of chapter 145; hence there is no necessity of discussing that subject.

Here we have two statutes applicable to the "government and control of separate and distinct classes of subjects, and it is the duty of this court, unless they are irreconcilably in conflict, if it can be done by a reasonable and fair construction, to give both of them force and vitality. The provisions of chapter 119, governing and controlling the Insurance Department, and that of chapter 145 in reference to public printing, are entirely consistent and have been so treated and regarded by the lawmaking power ever since their first appearance in the statutes of this State. This is clearly indicated in the carrying .of them without any substantial change into the revision of 1879, ’89 and ’99.

We are unable to attach the significance to the slight changes in the phraseology of section 5799; Revised Statutes of 1889, by tbe act of 1897, contended for by tbe respondent. Tbe act of 1897 changed tbe location of tbe office of tbe Superintendent of the Insurance Department from St. Louis to tbe City of Jefferson. Under tbe provisions of tbe statute of 1889, prior to tbe change in 1897, when tbe office was kept in the city of St. Louis, it was provided that tbe superintendent should procure rooms necessary for bis office and provide a suitable safe and furniture therefor, also provide stationery, fuel, printing and such other things as may be necessary for tbe transaction of tbe business of bis office. Tbe change made by tbe act of 1897 is that tbe superintendent shall have bis office in tbe Capitol building and be provided with suitable rooms therein and be furnished with suitable safe, furniture, stationery, printing and such other things as may be necessary for tbe transaction of tbe business of bis office. There is no material change in tbe other provisions of tbe statute as to tbe disbursements of tbe funds of tbe Insurance Department in payment of all tbe expenses connected with tbe office. The change in tbe phraseology in tbe act of ’97 manifestly was simply made to conform to tbe change of tbe place of keeping tbe office, from tbe city of St. Louis to tbe city of Jefferson; and it is clear that this slight change in tbe phraseology was never intended by tbe Legislature to entirely change the manner of procuring tbe necessary things for tbe conduct of tbe business of the office of tbe Insurance Department upon its removal to Jefferson City. This is clearly indicated from tbe fact that there were no changes made in tbe legislation in any way tending to effect sueh purpose.

It is finally contended by respondent that tbe provisions of section 58 of tbe General Appropriation act of 1905, in which act section 31 heretofore referred to, is.included, requires tbe printing connected with tbe Insurance Department to be done by tbe authority and under tbe directions of tbe State Printing Commission. This section provides that all printing provided for. in this act shall be done by the authority and under the direction of the State Printing Commission. A careful analysis of that act makes it clear that such is not the purpose or effect of section 58, to which our attention has been directed by respondent. Sec. 1 of that act starts out with the provision that “there is hereby appropriated out of the State Treasury, chargeable to the State Revenue fund, for the contingent expenses and other incidental expenses of the several departments of the State Government for the years 1905-1906, commencing on the first day of January, 1905, and ending on the thirty-first day of December, 1906. ’ ’ Following this section are numerous sections designating the subjects to which the provisions of section 1 should apply. "When we reach section 31 the distinction between the public printing under the supervision of the Commissioners and the printing connected with the Insurance Department is clearly kept in view. In that section the appropriation is made out of the funds, of the Insurance Department, and it is clear that the legislative mind, in the provisions of that section, were not directed specifically to the subject of printing. They were dealing with all the expenses of the Insurance Department, and the subject of fuel, postage, printing and such other things as may be necessary for the transaction of the business of the department were mere incidents connected with the expenses of that department. The correctness of this conclusion is emphasized by the concluding part of that section, which substantially provides that the expenses of the Insurance Department shall be paid only on the warrant of the State Auditor, which shall be drawn only on the requisition of the Superintendent of Insurance, duly made out and approved by him, stating specifically the purpose for which the money is to be applied. A fair and reasonable construction of section 58 makes it manifest that it was not intended to embrace the printing necessary for the transaction of the business connected with the Insurance Department.

We have thus indicated our views upon the propositions disclosed in the record before us, and we repeat, after a full and fair consideration of all the provisions of the statute applicable to the subject in hand, there is no escape from the conclusion that the provisions of chapter 119, Revised Statutes of 1899, governs and controls the necessary printing in the transactions of the business connected with the Insurance Department, and that such printing is not embraced in, nor is it in any way contemplated by, the provisions of chapter 145, which governs and controls certain classes of public printing for the State. Whether the provisions of law which distinguish the printing necessary for the transactions of the business of the Insurance Department from other classes of public printing is wise or not is not for this court to determine. We have simply undertaken to declare the law as it exists. If public interests demands a change in the statute applicable to this subject, such changes must be sought in another separate and distinct branch of State government.

The demurrer to respondent’s return to the alternative writ should be sustained, and it is ordered that the peremptory writ of mandamus as prayed for by the relator, should be awarded.

All concur.


author: GEAYES, J.

text:
    SPRATT, Appellant, v. EARLY et al.
    In Banc,
    November 22, 1906.
    1. FRAUDULENT CONVEYANCE: Res Adjudicata: Homestead: Subsequent Execution as to Excess. A wife and her husband conveyed a city lot to another of the defendants, and plaintiff, being the owner of a judgment against them, caused execution to be issued and levied on the lot and the lot sold and at the sale bought it and obtained a sheriff’s deed thereto, and then brought suit to have their deed set aside as being in fraud of creditors. To his suit they set up a defense that the lot was her homestead. The trial court held that their deed was fraudulent and that she did not have a homestead therein, but had abandoned the same, but on appeal the Supreme Court held that she did have a homestead therein and reversed the judgment. In that suit plaintiff contended that the deed was fraudulent as a whole and as to the entire lot, and made no request, in the trial court or in the Supreme Court, that, if the court should find that the wife had a homestead in the lot, the deed be held to be fraudulent as to the excess and set aside as to such excess. Thereafter he caused another execution to issue, the homestead to be set off, and levy to be made on the excess, and on the sale of the excess bought it and received a sheriff’s deed thereto, and now brings this suit to have the deed attacked in the former suit as fraudulent set aside for the same reasons set up then. Meld, that the plea of res adjudicata was good, and that the trial court properly gave judgment for defendants on the pleadings.
    2. -: -: Issues Settled. Whatever issues might have been settled in the former suit, if they had been timely brought forward, but were not, are as conclusively settled by the adjudication as were those specially and specifically adjudicated.
    Appeal from. Buchanan Circuit Court. — Row. R. M. Barney, Judge.
    Affirmed.

      J. F. Woodson and John A. Connett for appellant.
    (1) A motion for judgment on the pleadings, like a demurrer, admits all facts that are well pleaded by the opposite party. Sternberg v. Levy, 159 Mo. 629. (2) There is no conclusive presumption that every issue which might have been tried under the pleadings in a given case actually were tried, and have therefore become res adjudicata; but only the matters that were actually considered by court are settled by the judgment. This rule is thoroughly established in this State. Tootle v. Buckingham, 190 Mo. 183; Spradling v. Conway, 51 Mo. 51; Hickerson v. City, 58 Mo. 61; Baker v. Lane, 137 Mo. 682; Snodgrass v. Moore, 30 Mo. App. 232; Warden v. Busbee, 89 Mo. App; 117. (3) That a voluntary conveyance of property which is subject to execution by a person who is insolvent for the purpose of delaying, etc., his creditors is void, is elementary law. That the excess of any tract of land in which there is a homestead, over and above the homestead, is subject to execution, appears from section 3617, Revised Statutes 1899. It is immaterial that certain preliminary steps must be taken before actually making a sale of the excess under the execution. Such excess is clearly subject to execution and can be reached by the creditors. Surely a court of equity will not permit an insolvent debtor to deprive his creditors of the right to have this excess applied to the payment of their claims —the right to levy execution and have such excess sold —by his voluntary fraudulent conveyance of it along with his homestead. The conveyance attacked in this ease was voluntary and made for a fraudulent purpose. Spratt v. Early, 169 Mo. 357.

      James Moran for respondents.
    (1) The former case of Spratt v. Early, 169 Mo. 357, having been by bill in equity and having been submitted to the Supreme Court for review on its merits, the decision thereon, and judgment dismissing his bill and rendering judgment for defendants, was a final adjudication of the land in controversy, and was, therefore, res judicata as to all matters in issue in this action. Donnell v. Wright, 147 Mo. 639; Hamilton v. McLean, 1691 Mo. 72; Bank v. Tracy 141 Mo. 252; 21 Am. and Eng. Ency. Law, 216, 217. The former suit of Spratt vs. these same defendants was an action to set aside the same deed for the same identical reasons as in the action at bar, and, therefore, this action comes under the general rule that “where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest,, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case.” Donnell v. Wright, Hamilton v. McLean, and Bank v. Tracy, supra; Chouteau v. Gibson, 76 Mo. 38; Preston v. Eickets, 91 Mo. 200'; Caldwell v.. White, 77 Mo. 471; Nave v. Adams, 107 Mo. 415; Shelbina Hotel Co. v. Parker, 58 Mo. 327; Eailroad v. Traube, 59 Mo. 355. (2) It is 'a well-settled rule in this court that where a case has been decided by the Supreme Court and is again taken up by appeal, only such questions will be noticed as were not determined in the previous decision. Whatever was passed upon will be deemed res judicata, and no longer open to' dispute. Baker v. Eailroad, 147 Mo. 1501; Chapman v. Eailroad, 146 Mo-. 494; Given v. Wagoner, 116 Mo. 151; Keith v. Keith, 97 Mo. 231; Bank v. Taylor, 62 Mo. 339; Overall v. Ellis, 38 Mo'. 209.
   GEAYES, J.

After an examination of the record, we find that the facts in this case are fully stated by Marshall, J., in the opinion filed in Division No. 1, and we adopt said statement of facts as follows:

‘ ‘ This is a bill in equity to set aside a conveyance, dated September 8th, 1898, from the defendants, Daniel H. Duffy and Elizabeth Duffy, his wife, to Daniel H. Early, for a portion of lot 9 in Mock 28 in Patee’s Addition to the city of St. Joseph, the portion aforesaid being the excess in area of said lot over and above the eighteen square rods of ground exempt, under section 3616, Revised Statutes 1899', as a homestead of the defendant Elizabeth. There was a judgment for the defendant on the pleadings, without a trial of the merits of the case further than as stated in the pleadings, in the trial court, and the plaintiff appealed.
“The petition charges that at the September term,, 1898, of the circuit court of Buchanan county, the plaintiff obtained a judgment against the defendants, Daniel H. Duffy and Elizabeth Duffy, for the sum of $695.53, on a promissory note executed by them on the 16th of April, 1894, to one John Vahey, or order, and by him transferred to. the plaintiff; that on the 8th of September, 1898, the defendants Duffy were the owners in fee simple of all of lot 9, in block 28 in Patee’s Addition to St. Joseph, and that on that day, they, with intent and design to defeat the collection of said judgment, and to1 cheat, defeat, hinder and delay their creditors, and especially the plaintiff, executed a warranty deed to all of said lot, to the defendant, Daniel H. Early, but that said conveyance was without consideration and voluntary and' fraudulent for the reasons stated; and at all times mentioned, the defendants Duffy were insolvent, and had no property out of which said judgment could have been made; that on the-day of----- 1902, the plaintiff caused an execution to be issued on said judgment against said Duffys, and that under said execution the sheriff levied on a certain part of said lot, particularly described in the petition, and being the excess in area of said lot over and above the eighteen square rods exempted for homestead purposes, under section 3616, Revised Statutes 1899, and after complying with the laws with respect to the sale of real estate, under execution, the sheriff sold that part of said lot, on the 17th of November, 1902, to the plaintiff as the highest and best bidder therefor, and executed and delivered to the plaintiff a sheriff’s deed therefor. The prayer of the petition is that the deed from the Duffys to Early be set aside, as to said portion of said lot. The answer of the defendants Duffy is a general denial, coupled with a special plea of tes adjudicaba, in which special plea it is stated that the subject-matter of this action was heretofore adjudicated in a suit between the same parties hereto; that on the 18th of October, 1898, the plaintiff instituted an action against these defendants' upon “the same identical causes, as is alleged in his petition in this action;” that the ease was heard before the circuit court and judgment entered in favor of the plaintiff; that the defendants appealed to this Supreme Court, where the judgment of the circuit court was reversd, and a judgment entered in favor of the defendants. [That case is the case of William E. Spratt v. Daniel H. Early et al., 169 Mo. 357.]
‘ ‘ The answer of the defendant Early is a general denial, with special pleas as follows:
“First. That on the 29th of August, 1895, he purchased the property described in the petition, from the plaintiff, and paid him $2,500' therefor; that he continued to own the property until the 31st of January, 1896, when he sold the same to the defendant Elizabeth Duffy in consideration of the sum of $2,500 to be paid by her in the future, and that in the event of her failure SO' to do she was to re-convey the property to him; that Mrs. Duffy continued to own the naked legal title to the property until the 8th of September, 1898, when, beingunable to pay any part of the purchase price, she re-conveyed the property back to the defendant Early, under the agreement aforesaid; that Mrs. Duffy never paid any part of the purchase price, and that at the time she re-conveyed it to the defendant Early she had no interest or title in the property other than a mere naked legal title, and that the property was not subject to any indebtedness of Mrs. Duffy that was in existence on September 8th, 1896, the day she conveyed to the defendant Early aforesaid.
“ Second. A plea of res ad judicata setting up the prior suit by this plaintiff against these defendants, above referred to, including the pleas and judgments of the trial court and the Supreme Court, and in the trial court entered pursuant to the judgment of the Supreme Court.
“The reply to the separate answers is a general denial of all matters not specifically admitted, coupled with an admission as to the prosecution of the prior suit, and an averment that in the prior suit the plaintiff sought to subject the whole of lot 91 aforesaid to the payment of his judgment and in that suit contended that the whole conveyance of the whole lot was fraudulent and void; that the defendants in this suit denied that the conveyance to Early was fraudulent, but alleged that even if there was no consideration therefor, nevertheless, as the property had been acquired with money which Mrs. Duffy had derived from the sale of her homestead, she could transfer said lot without any wrong to the plaintiff, that the trial court found that the conveyance was without any consideration and was void, and that the lot was not the homestead of Mrs. Duffy, but that she had abandoned the same and therefore said lot was subject to plaintiff’s judgment; that the defendants appealed from that judgment to the Supreme Court, which court reversed the judgment of the trial court on the ground solely that the property was the homestead of Mrs. Duffy, and therefore was not subject to sale to satisfy the plaintiff’s judgment; that the Supreme Court said that if the property was not thé homestead of Mrs. Duffy, it would have been subject to the plaintiff’s judgment; that in the former suit no point was made, or attempted to be made, as to the area of the lot in question, and that the Supreme Court only adjudicated that Mrs. Duffy had a homestead; that said, lot contains more than eighteen square rods óf ground, and was located in a city then and now having more than 40,000 inhabitants; that after the decision of this court, in the former .case,, to-wit, on the 20th day of June, 1902, the plaintiff- caused an execution to be issued on said judgment, and levied upon the whole of lot 9 aforesaid; that Mrs. Duffy claimed her homestead in said lot, and refused to designate and choose the part thereof which she would take as exempt, and the sheriff proceeded in accordance with the provisions of section 3617, Eevised Statutes 1899', and appointed disinterested hppraise-rs, who, being duly sworn, set apart to Mrs. Duffy a homestead of the area allowed by statute as a homestead, and then the sheriff proceeded with the levy of the execution upon the residue of said lot, which is the property described in this suit, and that the same was sold and the'plaintiff became the purchaser thereof, as stated in the petition; that in view of the fact that it was adjudicated in the prior suit that the conveyance by Mrs. Duffy and her husband to Early was made without consideration, and was fraudulent and void, except as to- her homestead interest therein, and in view of the fact that her homestead in said lot has been set off to- her, the plaintiff claimed that he was entitled to the relief ashed in the petition.
“On the 25th of June, 1903, the cause came on for hearing, and the defendants filed a motion for judgment on the pleadings for the reason that the pleadings conclusively showed, on their face, that the matters in issue had been formerly adjudicated by the judgment of the Supreme Court of Missouri. The trial court sustained the motion, and entered judgment for the defendants, and the plaintiff appealed.”

To summarize the facts in the foregoing statement, it appears, that the plaintiff in this action had judgment'against Daniel Duffy and wife; that as a judgment creditor he brought suit to set aside a certain conveyance of date September 8, 1898, executed by Daniel H. and Elizabeth Duffy to Daniel H. Early, conveying lot 9 of block 28 in Patee’s Addition to the city of St. Joseph, Missouri. This suit was founded upon the ground that said deed had been made for the purpose of defrauding the plaintiff therein and the plaintiff herein as well as the other creditors of the said Daniel H. Duffy and wife. This suit was tried in the circuit court and judgment rendered in favor of the plaintiff finding such conveyance to be fraudulent and setting the same aside. Defendants took an appeal to this court, the result of which is found reported in 169 Mo. 357. In the trial of this case below the defendants showed and this court found that the property involved was impressed with the homestead right of Mrs. Elizabeth Duffy. In the trial of that case which attacked the identical conveyance attacked in this case, there was alleged the same fraud alleged in this case, and the defendants showed the homestead rights of Mrs. Duffy and the plaintiff attempted to show that she had no homestead rights, by reason of the fact that she had abandoned a prior homestead, the proceeds of which the court found were invested in the property herein in dispute. In the former trial, the plaintiff therein, and the plaintiff herein, insisted that the conveyance was fraudulent as to the whole lot, lot' 9, as aforesaid. He so insisted, notwithstanding the fact that the defendants in that action urged and introduced evidence upon the question of the homestead right of Mrs. Duffy. Plaintiff then had evidently made up his mind to recover the whole or no part of the lot in question. When it appeared' that a homestead interest was claimed by defendants in that action, plaintiff there and plaintiff here could have easily said to the court, if such was found to be a fact then, “I ask that the conveyance be set aside as to the surplus or excess' over and above the homestead,” and introduced evidence of there being a surplus. But this he did not do. He chose to take issue upon the question of homestead and cast his die to recover the whole or no part of the lot. He didn’t even suggest that, in the event there was a homestead, there might be a. surplus, and he wanted such surplus, but chose to plant himself on the broad ground that there had been a fraudulent conveyance, and'he, as a judgment creditor, was entitled to have the same set aside and have the whole property subjected to his judgment lien. He could have shown in that action that there was a surplus over and above the homestead interest of Mrs. Duffy and could have asked the court to say that such surplus or excess be subjected to his claim. But this he did not choose to do and placed the case before this court upon the theory that the conveyance of this lot was fraudulent as a whole and as to all parts thereof.

Without any suggestion in the record that he might be entitled to any part of the lot, he left it to this court to pass upon the character of the conveyance made by Duffy and wife to defendant Early, This court, in 169 Mo. 357, did pass upon the question and adversely to the contention of the plaintiff therein and the plaintiff herein. The court said that the conveyance was not fraudulent because of the homestead right of Mrs. Duffy. Had the plaintiff therein seen fit to have enlightened this court, and the trial court, to the effect that the property involved was in excess of the homestead rights, if any there should be found, the opinion of this court would have been modified to have conformed to the facts. This, the plaintiff therein and the plaintiff herein, did not choose to do. Shylock-like, he chose the whole pound of flesh or none. By the opinion and judgment of Gantt, J., he got none.

After the judgment of this court, gathering the fragments of himself together, he, the same judgment creditor, and upon the same judgment involved in the other proceeding, proceeds to have an execution issued upon this judgment, and under the execution to have the homestead rights of Mrs. Duffy admeasured and set apart in the property in question and to have the surplus sold under said execution. Upon said sale of the surplus as aforesaid he becomes- the purchaser and in this action asked the trial court to- set aside the same deed to the same property, or at least a part thereof, involved in the former action, and upon the same ground as involved in the former action. Defendants interposed former adjudication, pleading the facts as hereinabove set out. The replication filed by the plaintiff herein in substance admitted the facts as in this statement contained. Motion was filed for judgment on the pleadings and the trial court sustained the same.

The sole question for us to determine is .as to whether or not under the admitted facts in the former suit and the adjudication thereon, this plaintiff herein and the plaintiff therein, can further question this conveyance of date September 8, 1898, and the title to the property as therein expressed. We think not. What is urged in the present action could have been urged in the former action. The first action involved the whole lot, and this a part of the lot. The parties are identical; and the exact contention made in this suit could have been made in the other. Plaintiff did not deem it proper, for reasons perhaps best known to himself, to make the contention! That he could have presented the matter, goes without question. When evidence was introduced as to the homestead rights of Mrs. Duffy, for the purpose of disrobing the conveyance of the alleged fraud, the plaintiff could have shown and should have shown that there was an excess over and above the homestead interest, which could be impressed with the fraud. Had he done so this court-would have so said in the former opinion. Parties cannot be permitted to try their cases' by piecemeal. Whatever should have been in the first case, for the purpose of passing upon the question of former adjudication, will be considered to have been there. The whole doctrine is so thoroughly stated by Brace, J., in case of Donnell v. Wright, 147 Mo. l. c. 647, that we content ourselves with a short quotation therefrom, without further quotations from the textbooks and cases. Judge Brace’s conclusions are in accord with the great weight of authority. He says: . >

“The plea of res adjudicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every' point which properly belonged to' the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [Henderson v. Henderson, 3 Hare, l. c. 114.] Or, as expressed in the language of Philips, P. J., in Railroad v. Levy, 17 Mo. App. 507: ‘When the merits of the controversy were at issue in the first suit, every objection urged in the second suit having been open to the party within the legitimate scope of the pleadings of the first action, and the whole defense might have been presented in that trial, the matter is res adjudicata and must be considered as concluded by the former judgment. ’ And this is in harmony with all our rulings on this subject. [Shelbina Hotel Ass’n v. Parker, 58 Mo. 327; Railroad v. Traube, 59 Mo. 355; Comstock v. Davis, 51 Mo. 569; Greenabaum v. Elliott, 60 Mo. 250; Caldwell v. White, 77 Mo. 471.]
“This is not only the English rule and the rule in this State, but generally ‘the tendency of the American cases is to regard all the issues which might have been raised and litigated in any case to be as completely barred as if they had been directly adjudicated and included in the verdict.’' [21 Am. and Eng. Ency. of Law (1 Ed.), 216 and 217, and notes.] ”

To the same effect is the doctrine expressed by Lamm, J., in the recent opinion in case of Donnell v. Wright, 199 Mo. 304.

That the question involved in this-case could have been litigated in the other is beyond doubt. In fact, the defendant invited the litigation thereof by the evidence offered as to the homestead rights of Mrs. Duffy. Plaintiff seems to have been so intent upon securing the whole loaf as to fail to make the point that he was entitled to a part of the loáf, and this, too, after the 'defendants had invited him to* make the claim by the character , of their evidence. Courts cannot be trifled with in this manner. When a case is presented, the whole ease should be presented. Suppose the defendants had failed to show the homestead right of Mrs. Duffy in this property, and judgment had gone against them for that reason, which would have been the situation under the opinion of this court at the former hearing, would it be said that they could in another action raise the question omitted and profit thereby? Certainly not. Their failure to make the defense would have been as conclusive upon them as if made and adjudicated against them. It was a matter which could have been raised and adjudicated and such are considered as adjudicated. What is sauce for the goose is likewise sauce for the gander. Plaintiff could have had an adjudication of his right to a surplus, if any there was, in the former suit, but he failed so to do. He sought to take the whole lot rather than a part. We are of the opinion that the plea of former adjudication was good, and the trial court has committed no error. The judgment of the circuit court is affirmed.

All concur.


text:
    THE STATE ex rel. MORGAN COUNTY et al. v. WILDER, State Auditor.
    In Banc,
    November 22, 1906.
    COUNTY RAILROAD BONDS: Reimbursement of County: Unconstitutional. The act of the General Assembly of March 23, 1868, entitled, "“An act to facilitate the construction of railroads in the State of Missouri,” being unconstitutional and void, a subsequent act to reimburse a county out of the State revenues in the amount paid by the county in liquidation of the bonds issued by the county in pursuance of the act of 1868, is also unconstitutional and void.
    Mandamus.
    Peremptory writ denied-.

      H. E. Neville, W. I. 8. Agee, B. E. Glalm and E. W. Nelson for relators.
    Section 5 of the act of 1868 provides that in all cases where railroads are built under thé provisions •contained in said act, the proceeds of all state taxes levied upon such railroad shall be paid into the treasury of the county where collected and apportioned to the payment of the bonds issued by such county for the construction of such railroad. Morgan county having erroneously paid the taxes so raised and collected into the State Treasury, the Legislature in 1905 directed the State Auditor to draw his warrant on the State Treasurer for said sums of money payable to the county treasurer of Morgan county. ■ (1) The act of 1868 is constitutional. State ex rel. v. Linn Co. Court, 44 Mo. 504; Cass Co', v. Johnson, 95 U. S. 360; Cass Co. v. Jordan, 95 U. S. 373; Daviess Co. v. Huidekoper, 98 U. S. 102; Douglass v. Pike Co., 101 U. S. 677; Knox Co. v. Bank, 147 U. S. 91. (2) Some weight should be given to the legislative construction of the act. Webb' v. LaFayette Co., 67 Mo. 369; secs. 9257, 9386, R. S. 1899; Laws 1899, p. 30. (3) The act of 1905 does not contravene section 53, article 4, Constitution of 1875, providing that “the General Assembly shall not pass any local or special law . . . remitting fines, penalties and forfeitures or refunding moneys legally paid-into the treasury.” (b) Neither is it violation ,of section 46, article 4, Constitution of 1875, prohibiting the Legislature from “making any grant, or authorizing the making of any grant of public money or thing of value to any individual, association of individuals, municipal or other corporations whatsoever . . . except incase of public calamity,” for the reason that this act does not make any grant, or authorize the making of any grant of public money. This money is not public money, but Morgan county’s money inadvertently and illegally and erroneously paid into the State Treasury, and this act simply provides for the taking from the State Treasury money that does not belong to the State but to Morgan county, (c) Neither does this act contravene sections 45 and 47 of article 4, Constitution 1875. The credit of the State or township is not loaned; they act in the capacity of ágents. State ex rel. v. Linn Co. Court, 44 Mo. 504. The court is respectfully and earnestly requested to reconsider its opinion in State ex rel. v. Walker, 85' Mo. 41, which announces to the contrary. The constitutionality of the act of 1868 was affirmed by this court very soon after its passage. State ex rel. v. Linn Co. Court, 44 Mo. 504. This case was decided at the October term, 1869. This court decided the act to be constitutional, and granted the writ compelling the' issuance of the bonds. Other counties relying on that opinion of this ■ court, among them Morgan county, issued bonds under the provisions of said act of 1868, and this court will hesitate to interfere with previous adjudications where, on the faith of such- decisions, property has been acquired or money invested. State ex rel. v. Sutterfield, 54 Mo. 391; State ex rel. v. Woodson, 67 Mo. 338; Douglas v. Pike Co., 101 U. S. 687; Ralls Co. v. Douglas, 105 IT. S. 728. When these bonds were issued they had the sanction of (a) the Legislature; (b) the judiciary as announced in the case of State ex rel. v. Linn County Court, 44 Mo. 504. (c) Since that time bonds issued under the same law have been upheld' in many cases in the Federal'circuit courts, and in the United States Supreme Court. They continued to receive the sanction of the courts of this State until the United States Supreme Court, in Horshman v. Bates County, 92 U. S. 469, held the law of 1868 unconstitutional, and notwithstanding the fact that that eminent tribunal at the earliest opportunity, in Cass County v. Johnson, 95 U. S. 360, about one year later, expressly overruled its. former opinion, this court has never adopted the latest ruling of the United States Supreme Court.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The act approved April 12, 1905, is void and unconstitutional. State ex rel. v. Walker, State Auditor, 85 Mo. 41; secs. 46, 47, 48 and 53, art. 4, Const. 1875; Webb v. Lafayette County, 67 Mo. 353.
   FOX, J.

This is an original proceeding in; this court instituted by Morgan county in the State of Missouri, and J. W. Johnson, treasurer of Morgan county, by which it is sought to obtain a peremptory writ of mandamus to compel the respondent, as State Auditor, to issue two warrants in favor of relator, J. W. Johnson, Treasurer of Morgan county, one for the sum of $2,139.80, and the other for the sum of $1,933.25, according to the provisions of an act of the General Assembly, approved April 12, 1905.

The provisions of said act are as follows:

It is entitled, “An act for the reimbursement of Morgan' county, out of the State revenue and State interest funds, for moneys heretofore paid into the State treasury belonging to said county.”

Section 1 provides: “That there shall be and is hereby appropriated out of the State revenue fund the sum of two thousand one hundred and thirty-nine dollars and eighty cents to reimburse Morgan county for moneys paid into the State Treasury by said county for the benefit of said State revenue fund between the , years 1880 and 1902, inclusive, on account of proceeds of tax paid by the Osage Valley and Southern Kansas Railroad, now called the Boonville, St. Louis, and Southern Railway, and which, under the provisions of section 5 of an act entitled, ‘An act to facilitate the construction of railroads in' the State of Missouri,’ approved March 23rd, 1868, said county was entitled to and should have retained.

‘ ‘ Sec. 2. That there be and is hereby appropriated1 out of the State interest fund the sum of one thousand nine hundred and thirty-three dollars and twenty-five cents, to reimburse Morgan county for moneys paid into the State Treasury by said county for the benefit of said State interest fund between the years 1880 and 1902, inclusive, on account of proceeds of tax paid by the Osage Valley and Southern Kansas Railroad, now called the Boonville, St. Louis and Southern Railway, and which under the provisions of section 5 of an act entitled, ‘An act to facilitate the construction of railroads in the State of Missouri,’ approved March 23, 1868, said county was entitled to and should have retained.

“Sec. 3. The State auditor is hereby authorized and directed to draw warrants on the State treasurer for the respective amounts as specified and provided in sections 1 and 2 of this act, in favor of the treasurer of Morgan county, and the State treasurer is hereby authorized and directed to pay the same upon presentation.”

The State Auditor having refused to issue the warrants as provided by the act as herein indicated, upon application of relators this court on the 4th day of June, 1906, issued its alternative writ of mandamus, directed to the State Auditor, the respondent in this proceeding. The respondent filed the following return to the.alternative writ:

“Comes now the respondent and for his return to the alternative writ of mandamus herein, says that he admits that the respondent is the duly elected, qualified and acting auditor of the State of Missouri; admits that the relator, J. W. Johnson, is the .duly elected qualified and- acting treasurer of Morgan county, Missouri; admits that the General Assembly of the State of Missouri passed the act of Mach 23, 1868, referred to in the alternative writ of mandamus; admits that the General Assembly of the State of Missouri passed the act of April 12, 1905, referred to in the alternative writ of mandamus, and admits that Morgan county paid into the State Treasury of Missouri the amount of money and at the time as stated in the alternative writ of mandamus.
“And for his other and further return respondent says that said act of the General Assembly, passed and approved April 12, 1905, is unconstitutional and void, because in conflict with and in violation of section 46 and section 53 of article IY of the Constitution of Missouri.
“Wherefore the respondent prays the court that no peremptory writ of mandamus issue, and that he may be discharged and go hence without day.”

This constitutes the record in this proceeding, and it is now before us for consideration.

OPINION.

The proposition presented for consideration by the record in this proceeding is by no means a new one. For more than a quarter of a century the question now presented by relators bas been regarded as settled by tbe former adjudications of tbis court.- Tbe act of tbe Legislature approved April 12, 1905, bas for its foundation tbe act of tbe General Assembly approved March 23, 1868, entitled^ “An’ act to facilitate- tbe construction of railroads in the State of Missouri, ’ ’ and it is manifest tbat if tbe act of 1868 is unconstitutional and void it logically follows tbat tbe act of 1905, upon which tbis proceeding is predicated, is without force or vitality. Tbe foundation having fallen tbe structure upon which it rests must necessarily fall with it.

Tbe first time tbat tbe act of 1868 was brought to tbe attention of tbis court was in tbe case of State ex rel. v. Linn County Court, 44 Mo. 504. The conclusions reached in tbat case were predicated upon substantially tbe following state of facts: In 1869 Linn county, in pursuance of the provisions of tbe act of 1868, voted a subscription to tbe North Missouri Central Railroad Company, but tbe county court refused to issue and deliver tbe bonds to tbe said company, contending tbat tbe act of 1868 was unconstitutional for tbe reason tbat it was obnoxious to section 14 of tbe Constitution of tbis State. A mandamus proceeding was instituted in tbe Supreme Court to compel tbe Linn county court to issue tbe bonds, and tbis court made tbe alternative writ peremptory and ordered tbe county court to issue and deliver tbe bonds to tbe railroad company.

Again, tbis court in 1878, in the case of Webb v. Lafayette County, 67 Mo. 353, bad in judgment tbe constitutionality of tbe act of 1868. Norton, J., speaking for tbis court, held tbe act of 1868 unconstitutional and void'. In tbat case tbe opposing parties were represented by able counsel, and all of tbe authorities applicable to tbe question of tbe constitutionality of tbe act in judgment were carefuly and fully reviewed by tbe learned judge delivering tbe opinion in tbat case. Judge Norton, after reviewing all of tbe authorities upon tbe subject, finally reviews tbe Linn county case, upon which, relators in this proceeding chiefly rely for support of their contentions. He thus made reference to that case: “In the Linn county case the point was made that the bonds, for the issuance of which the proceeding was instituted, would be, if issued, the bonds of the county, and not of the townships, and' therefore obnoxious to section 14 of the Constitution, and the question of power was not raised. It is insisted that this court, by its former adjudications, is precluded from a consideration of the validity of the act of 1868, and the doctrine of stare decisis has been invoked and pressed on our attention. If the constitutionality of this act had been heretofore fully presented and considered and declared valid, thereby establishing a rule of property, we would hesitate long before overturning or unsettling it in any degree. We think this has not been done, and the case on which the claim is based is that of State ex rel. v. Linn County Court, 44 Mo. 504, in which the points now before us were neither made nor considered and all that it decided was that a bond issued under the terms of the act would not, in any sense, be a county, but to all intents and purposes a township bond. The question before us was neither made nor considered in that or any other case, and this is conceded by the court in the case of Cass County v. Johnston, 95 U. S. 360, in which it is said that' ‘it is true that the objection now made to the law was in no case presented or considered.’ ”

In State ex rel. Stamper v. Holladay, 72 Mo. 499, the case of Webb v. Lafayette County, supra, was expressly approved, and it was again approved; in Hays v. Dowis, 75 Mo. 250.

It is conceded that in the case of State ex rel. Prairie Township v. Walker, 85 Mo. 41, substantially the same question was involved as in the case at bar. The proceeding in that case was predicated upon an act of the Legislature approved March 19, 1881, requiring the State Auditor, on a proper and sufficient showing, to refund certain taxes, by drawing his warrant for the amount of the same, which had been collected from the railroad under the provisions of the act of 1868 and paid into the State Treasury. The auditor in that case, as in the case at bar, declined to issue the warrant in obedience to the provisions of the act of 1881, on the ground that the act of 1868, as well as the act of 1881 predicated upon it, were unconstitutional and void; whereupon the relator, as in this case, sought by application to this court a writ of mandamus to compel him to comply with the provisions of the act of 1881. These two cases being so clearly identical and the contentions of the relators in the case at bar being so fully answered in the Prairie Township case, it becomes important to know precisely what this court said in adjudicating that case; therefore, we feel warranted in quoting briefly from the discussion of the proposition in that case as well as the conclusion reached. In treating this question it was there said:

“It may be conceded that if the acts of March 23, 1868, and March 19, 1881, are constitutional and valid enactments, then, upon a proper and sufficient showing, as indicated in the act of 1881, it was the plain duty of the auditor to comply with the demand made upon him, and his refusal to do so would authorize the award of the writ called for. But if said acts are not valid and constitutional enactments, then it was equally his plain duty to refuse, as he did. Under repeated decisions of this court, the question of the constitutionality of the act of 1868 has been settled, and is no longer an open question with this court. [Webb v. Lafayette County, 67 Mo. 353; State ex rel. Woodson v. Brassfield, 67 Mo. 331; Hays v. Dowis, 75 Mo. 250.] In the case of State ex rel. Stamper v. Holladay, 72 Mo. 499, and State ex rel. Wilson v. Rainey, 74 Mo. 229, the former rulings of this court are in no proper sense departed from, but expressly recognized and approved. The correctness of the reasoning in the case of Webb v. Lafayette County, supra, is so accurate and comprehensive, and so logical and conclusive, that any effort to add to or improve the same is wholy useless, if not out of place.
“For the reasons there stated we may confidently rely on the correctness of the rulings in that case and those that follow, and concur therein, and we need not at length here reiterate or restate them. The fact that in suits, at the instance of bondholders, against said township, a different ruling had been made, and said act of 1868 held valid and constitutional in another tribunal, having jurisdiction and competent authority to pass upon the question, is no reason why, in a proceeding in this court, like the present, we should now depart from our former rulings heretofore made, or grant the relief here prayed for. The fact, also, that the people of Prairie township, Bates county, may have been induced, as alleged, by the seeming authority of the act of 1868, to make said subscription and enter into said contract, while it may be the occasion of much regret and hardship, still, if unconstitutional, as repeatedly held, it furnished no constitutional authority for enforcing its otherwise unauthorized provisions, or for the subsequent act of 1881, which is equally invalid as that of 1868, and for the same reasons, and, also, for like reasons under sections, 45, 46 and 47, of the fourth article of the Constitution of 1875.”

We have thus pointed out the views of this court as expressed in the former adjudications upon this subject, and they must be regarded as decisive of the question presented in this proceeding.

Our attention is directed to the case of Cass County v. Johnston, 95 U. S. 360, which overruled the case of Harshman v. Bates County, 92 U. S. 569, and other subsequent cases adhering to the Cass county ease, and upon the strength of those cases we are asked to reconsider the former adjudications by this court. The proposition involved in this proceeding was most exhaustively treated in the Lafayette county case in the 67 Mo., which was followed and approved in the 72, 75 and 85 Mo., in all. of which cases this' court had confronting it the ruling in the Cass county case by the Supreme Court of the United States, yet it declined to change in any way the conclusions reached as announced in those cases.

' We regard the question before us as no longer an open question in this State. It has long since been settled by repeated adjudications of this court, and after a most careful consideration of all the authorities to which our attention has been directed, we see no substantial legal reason for departing from the rules announced upon this subject in the former decisions of this court.

The peremptory writ of mandamus should be denied, and it is so ordered.

All concur, except Lamm, J., who dissents.