author: RAILEY, C.

text:
    R. H. O’BANNON v. A. A. WYDICK et al., Appellants.
    Division Two,
    March 13, 1920.
    PROFESSIONAL SERVICES: Mechano-Therapist: No License. A mechano-therapist, having no license to practice, cannot recover for his services as “a practitioner of drugless healing” and of “the chiropractic method.” [Approving and adopting opinion of Springfield Court of Appeals in O’Bannon v. Wydick, 197 S. W. Rep., 432.]
    Appeal from Howell Circuit Court. — lion. E. P. Dorris, Judge.
    Reversed.
    -7. G. Dyott for appellants.
    (1) The verdict should have been for the defendant rather than the plaintiff. His petition alleges that the defendants are indebted for “medical services,” while the evidence shows that he is not a physician as specified by the statute, nor never has been, and is therefore suing for a debt contracted under false pretense, and in the practice of medicine against the positive mandate of the statute. Secs. 8311 and 8313, R. S. 1909',• State v. Smith, 233 Mo. 242. (2) Plaintiff’s petition does not state a cause of action. If the plaintiff had not the legal capacity to sue and had no standing in court, his complaint being based upon the charge for professional medical service, and he failed to allege and prove that he was licensed by the State for that purpose, he did not state a cause of action. Swift v. Kelley, 133i S. W. (Ark.) 90L (3) The plaintiff has not the legal capacity to sue and recover. The practice of mechano-therapy or any other forms of medicine by any person who has failed to comply with the authorizing statutes for any unlawful practice and any contract based upon such services rendered, has for its object void consideration. Chitty on Contracts, 230; Rothwell v. Gibson, 121 Mo. App. 284; Bishop on Contracts (Ed. 1887), sec. 471, citing Friend v. Porter, 50 Mb. App. 89!, 9 Cyc. 475'; Down v. Ringer, 7 Mo. 585. “The cases in this country are uniform in holding that a contract forbidden by statute is void.” Live Stock Assn. v. L. & C. Co., 138 Mo. 394; Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404. (4) An expressed or implied, contract of the nature as herein indicated should not be upheld on the ground of the public policy. Oit v. Meek, 111 Iud. 40; Thompson v. Hazen,'25 Me. 104; Bailey v. Mogg,- 4 Ben. (N. Y.) 60; Alcott y. Barber, 1 Wend (N. Y.) 526; Puckett v. Alexander, 102 N. 0. 95, 3- L. R. A. 43.

      L. P. Main and O. F. Wayland for respondents.
    (1) Dues the statement set forth a cause of action? It does in any view of the case for this court cannot take judicial notice that meckano-therapy is a school of med,cine, and even if it is, and the court could take judicial notice of that fact it is held in Des Mond v. Kelly, 163 Mo. App. 205, that it is not necessary in an action for medical services to allege the possession of a license but that the want thereof, if a defense at all, must be affirmatively pleaded. In that case the'court specifically declined to pass upon the question a,s to whether the defense would be good. (2) The real question at issue in this case is the right of a person treating any kind of bodily disorder to recover for his services in the absence of a license to practice medicine. In discussing, this question we will admit for the sake of the argument that mechano-therapy is a school of medicine within the meaning of the statute, but we insist that in this State the possession of a license is not a condition 'precedent to the recovery' of t>av for services. Smvthe v. Hanson, 61 Mo. App1. 285. (31 It will be observed that regardless of the history of the act the court in the Smvthe case sav that in this State unless the contract itself prohibited, recovery can be had for services rendered under it. The latest amplication of this rule is the case of McOonnon v. Haskins, 180 S. W. 21. Counsel for appellant says in his brief that this case is not applicable because the Peddler Act is a revenue act, but in the case of State v. Webber, 214 Mo. 272, the Supreme , Court held that it was an exercise of the police power and for that reason constitutional.
   RAILEY, C.

On April 17, 1916, plaintiff filed before R. F. Holloway, a justice of the peace, at Willow Springs, Howell County, Missouri, a suit against above defendants. Tbe petition, without caption and signature, reads as follows:

“The plaintiff states that-the defendants are husband and wife and are indebted to him in the sum of .$109.35 for professional services as a meehano-therapist rendered by him to defendants and their family at their request.”

A jury found the issues for defendants in the court’ of the justice of the peace, and judgment was entered accordingly. The ease was appealed by plaintiff to the Circuit Court of Howell County. Defendants filed, in the latter, a general denial. The case was tried before the court without a jury, and judgment rendered in favor of plaintiff for $104.50 and costs. Defendants, in due time, filed their motion for a new trial, which was overruled and the cause duly appealed by them to the Springfield Court of Appeals..

The evidence is sufficient to warrant a finding in favor of plaintiff, if he was authorized by law to perform the services rendered and charge for same.

Plaintiff admitted at the trial that his demand was for services rendered in the treatment of ailments and diseases of the human body; that he had "no license as a physician or surgeon which authorized him to render the services sued for. He testified as follows:

“Q-. What profession or line, are you following?. A. Well, sir, I am covering the field as a practitioner of drugless healing and take the general field of diatetics, scientific food, the adjustment of the spine and a correspondence course in osteopathy in Cincinnati, two years in the practice and study of medicine 28 years ago. It is what is called mechano-therapy.

“Q1. You have also stated you are practicing what is known as the chiropractic method? A. Yes, except the medicine: I use food and scientific work.”

The Spring-field Court of Appeals, in an able and exhaustive opinion by Judge .Farrington, concurred in by all the jndge.s of that court, held that plaintiff, without a license to practice, could not recover, under the circumstances aforesaid, and reversed the case. The cause-was transferred here on account of the conflict between the above opinion and that in Smythe v. Hanson, 61 Mo. App. 285, decided by the St. Louis Court of Appeals. Upon a careful consideration of the questions presented, we are of the opinion that the decision of the Springfield Court of Appeals, which is reported in full in 198 S. W. 432 and following, properly declares the law of the case, and is hereby adopted as the opinion of this court.

In 8 Elliott on Contracts (1913-1918' Supplement), pages 126 et seq., sections 646 and following, Judge Farrington’s opinion supra, is strongly approved, and a number of recent decisions from other jurisdictions are cited in support of same.

The judgment of the circuit court is accordingly reversed.

White and Mosley, GG., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    MINNIE E. NORTON et al.; JOHN R. JOHNSON, Intervener, Appellant, v. ISAAC F. REED et al.; IDA HARLICK et al., Interveners.
    Division Two,
    March 13, 1920.
    1. ASSIGNMENT: Cause of Action: Stipulation as to Settlement: Substitution. An action in ejectment pending in the proper court, with a stipulation on file between all the parties agreeing to a final disposition of the case, is assignable, and a conveyance by quit-claim deed, executed by plaintiffs, in which they convey to a named grantee all their right, title and interest in the land and to the damages for rents and profits, is such an assignment, and entitles the grantee to be substituted as plaintiff, Unless the cause of action had already been lost for some other reason.

      2. -: Dismissal. Where a cause of action is pending on a stipulation for judgment and is assigned by the plaintiffs, together with all their interests in the property in suit, the court should not permit plaintiffs, upon the payment of costs, to dismiss the action, without the consent of the assignee.
    3. -: -: Reinstatement: JWrit Coram Nobis. After the adjournment of the term, a case wrongfully dismissed cannot be reinstated by motion under Secs. 2119-2121, R. S. 1909, if there is nothing on the face of the record indicating that error had been committed. But if the motion is in the nature of a writ of error coram nobis, and points out a mistake made by the court, without the fault of movement, based upon a misapprehension of the actual facts, which, if known to the court at the time, would have precluded a dismissal, the cause may be reinstated in response thereto; for the purpose.of a writ of error coram nobis is to enable the court to correct some error of fact, which did not appear in the record and which was unknown to the court when the order was made.
    4. -: Unsigned and Amended Petition: Conveyance by Defendant: Stipulation for Judgment. The filing of an unsigned petition is the commencement of a suit, and the filing of an amended petition at the return term relates back to the filing of the original petition; and a suit in ejectment is properly brought against the owner and his tenant in possession; and if, after such amended petition is filed, the attorneys who sign it and the attorneys for defendants enter into and file in the case a stipulation for judgment in accordance with a final adjudication in another pending cause resting upon the validity of the same administrator’s deed, such stipulation is binding on all the parties and their assignees, although one day before the suit was brought the defendant, by a deed not recorded until one day thereafter, had conveyed to intervener; and intervener is in no better position than he would be had the original petition been properly signed.
    5. —-: Ejectment Against Grantor: Stipulation for Judgment. The purchaser from the defendant in ejectment, by deed executed one day before suit is filed but not recorded until one day after, is, under the statute (Sec. 1732, R. S. 1909), entitled to be joined as codefendant and to defend his title, or to have it defended in the name of the original defendants. And if a stipulation is signed by the attorney for the original defendants that the action shall remain on the docket and abide the result in another pending suit, he and his grantee are bound by the stipulation.
    Appeal from Butler Circuit Court. — Hon. J. P. Foard. Judge.

      Reversed and remanded (with directions).

      Arthu-r T. Brewster, Buford S Chitwood, and J. B. Daniel for appellant.
    (1) The suit having been brought against the person in actual possession it is immaterial that the grant- or of interveners who claimed title to the land through an unrecorded deed was not made a party thereto. R. S. 1909, sec. 2385. (2) It being admitted by the pleadings that at the date of the order of dismissal the plaintiffs had parted with all their interest in the subject-matter of the suit and that said interest had passed by conveyance to the intervener at the date of the filing of the motion herein by him;, the motion should have been sustained. (3)' A motion In the nature of a writ of error coram nobis is the correct procedure to correct an error lin a judgment, after the lapse of a term at which the judgment is rendered where the error is riot patent on the record, but must be shown by evidence dehors the record. State ex rel. v. Riley, 219 Mo. 667; Hadley v. Bernero, 103: Mb. App. 549; Cross v. Gould, 131 Mo. App. 585; State v. Stanley, 225 Mo. 525; 5 Ency. Pleading & Practice, 27. (4) One not a part}' to an action, i. e. a stranger to the record, may file a motion in the nature of a writ of ebror coram nobis, if he is privy to the record or injured thereby. .State ex rel. v. Riley, 2191 Mo. 684; 5 Ency. Pleading & Practice, 3!1; Dugan v. Scott, 37 Mo. App. 663; State ex rel. v. Heinrich, 14 Mo. App'. 146. (5) Even if it were shown, beyond question that the original petition was1 not signed by counsel, such, error was waived by answering over to an amended petition and could not be successfully raised thereafter. Brook-shier v. Mutual Fire Ins.. Co., 91 Mo. App. 599;. (6) Error in failing to sign a pleading, if objected to- in due time, can be cured by amendment when attacked. Reamer V; Morrison Express Co., 93 Mb. App. 510.

      R. I. January and J. II. K.eith for respondents.
    (1) All actions must be prosecuted in the name of the real party in interest, and to recover possession of real estate must be brought against the person in possession of the premises. Secs. 1/729, 2585, R. S. 1999. (2) All pleadings' shall be signed by the pleader or his attorney. R. S. 1909, sec. 1822; • Oxley Stain Co. v. Whitson, 34 Mo. App. 624. (3) To entitle plaintiff: in ejectment to judgment, it is necessary to show that defendant in the suit, at the date of the commencement or filing of the suit, was in the possession of the premises. Sec. 2389, R. S. 1909; Haden v. Goodwin, 217 Mo. 662; Philips v. Philips, 187 Mo. 360. (4) A voluntary non-suit will not be reviewed. Koger et al. v. Hlays, Admr., 57 Mo. 329; Greene County Bank v. Gray, 146 Mo. 568; Sec. 1980, R. S. 1909. (5) Nonsuit abandons original suit. Karnes v. American Eire Ins. Co., 53 Mo. App., 440; Wiethaup v. City of St. Louis, 158 Mb. 655. (6i) Stipulation could not affect rights of those not party. Barber Asphalt P’avingi Co. v. Young, 94 Mo*. App. 214. (7) A judgment dismissing a cause cannot be set aside on motion, after the end of the term at which it was rendered. Jameson v. Kinsey, 85 Mo. App. 301; State ex rel. Ozark County v. Tate, 109' Mb. 265; Peak v. Redd, 14 Mo. 79.
   RAILEY, C.

On October' 23, 1907, Minnie A. Norton, Catherine Dougherty, John C. Vandyke and James T. Vandyke, as plaintiffs,, filed, in the Circuit Court of Reynolds County, Missouri, a petition in ejectment, against Isaac P. Reed and Mlartin Burnham, as defendants, to recover possession of an undivided four-fifths of the following described real estate located in said county, to-wit:

“All of the west half of the east half of Lot 21 of the northwest quarter of Section 5*. in Township 201 of Range 1 east, except a strip one hundred and five feet wide off of the south end thereof.”

Five suits in ejectment were filed by the same plaintiffs, on the same day, in the same court, against separate and distinct defendants. The title of the several defendants to the several tracts of land involved in said several suits depended, in each case, upon the sufficiency of a certain administrator's deed, purporting to convey all of the land involved in said five suits, to a common grantor of all the defendants in said five actions. In the present action, the defendants were served with process on October 23, 1907, and thereafter1 answered in said cause. It is admitted by counsel in the present controversy, that Benjamin C. Vandyke, the father of plaintiffs, was the common source of title.

Benjamin C. Vandyke died in said county, on July 14, 1884, intestate, and left, as his only heirs at law, the above named plaintiffs and the minor children of his deceased daughter, Bertie E. Cooper, namely, Bessie Cooper, Morey Cooper, Carter Cooper, Charles Taylor and Clarence Taylor. The plaintiffs herein claimed to be the owners of the undivided four-fifths of said real estate, as tenants in common with the children of said Bertie E. Cooper, deceased, who claim to have owned an undivided one-fifth of same.

The date of ouster is named as August 4, 1901.

On December 5, 199(7, during the November Term, 1907, of the Reynolds Circuit Court, and after the above named defendants herein had been served with process and answered in said cause, a stipulation was filed therein, by the respective parties thereto, which without caption and signatures, reads as follows:

“It is stipulated and agdeed by and between the parties, plaintiffs and defendants, in the above entitled cause, that this cause shall stand continued in this court until a final judgment is entered, either in this or in the Supreme Court, in the ejectment ease of the same plaintiffs against Joseph A. Reed, tried in this court and involving the same title.

“Upon the entry of a final judgment in said case of Minnie A. Norton et al. against Joseph A. Reed, either in this court or in the Supreme Court, then ■either party to this suit may move for judgment in this court, in this case, and shall be entitled to a judgment for either the plaintiffs or the defendants, as may have been determined in said suit against Joseph A. Reed, but in ease the judgment so entered is for plaintiff for possession the parties >nay give evidence as to the rents and profits in this case, but all other issues shall be determined by such final judgment in said case against Joseph A. Reed.”

Said stipulation was signed by attorneys, J. B. Daniel, John EL Raney and R. L. MoLaran, in behalf of said plaintiffs, and by S. L. Clark and R. I. January, as attorneys for defendants herein.

After one of said five suits had been tried in the Circuit Court of Reynolds County, to-wit, that of Minnie A. Norton et al. v. Joseph A. Reed, the stipulation aforesaid was filed herein. The above named case against Joseph'A. Reed was decided by the circuit court, in favor of plaintiffs, and defendants duly appealed said cause to the supreme Court of Missouri, where it will be found reported in 253 Mo. 236-7 (161 S. W. 842). The supreme Court, on December 6, 1913, affirmed the judgment of the Reynolds Circuit Court in the above cause.

Thereafter, before the next term of the Reynolds Circuit Court, plaintiffs in the present suit sold all their interest in the subject-matter of this action, to said defendant, Joseph A. Reed, who thereafter executed a deed, conveying to the intervener herein, John R. Johnson, all of the land involved in this suit. Said deed from Joseph A. Reed to said John R. Johnson was duly recorded in Reynolds County, on September 5, 1914. By the terms of said sale between plaintiffs and said Joseph A. Reed, it was agreed that said Reed should, and he did, pay all the costs in this suit. Thereafter, on November 25, 1914, an order was entered of record in this cause in the Circuit Court of Reynolds County,' reciting, after the caption, the follow|ing: “Dismissed by plaintiffs, all costs having been paid.”

Thereafter, on November 29, 1916', John R. Johnson, as intervener herein, filed in this cause, a motion in the nature of a writ of error coram nobis, setting out the facts aforesaid, and praying to he substituted as plaintiff herein, instead of the plaintiffs, who had, after suit filed, and before judgment rendered, parted with their interest in the subject-matter of this suit, averring, that said order of dismissal was erroneously made and praying that the same be set aside, and judgment rendered herein upon the stipulation aforesaid. Said Johnson, for convenience, will hereafter be designated as appellant.

At the time of the institution of this suit, the defendant, Isaac F. Reed, appeared by the- records of Reynolds County, Missouri, to- be the record owner of the lands in controversy, if said administrator’s deed passed any title thereto, and the said defendant, with Martin Burnham, were in the actual possession thereof.

. As above indicated, this suit was filed October 23, 1907. A like suit involving' the same subject-matter for. the same plaintiffs, and against the same defendants, had theretofore been filed, plaintiffs had suffered a nonsuit, and thereafter, within one year after said nonsuit, filed the present action. The defendant, Isaac F. Reed, on October 22, 1907, one day before the filing of this suit, had executed a deed to one J. C. Webb, purporting to convey to him the lands in‘dispute, but the deed was not filed for record until the day after the filing of this suit. Thereafter, the said J. 0. Webb, executed a deed purporting to convey these lands to his then wife, now Ida M. Herlick, who thereafter executed a mortgage purporting to convey said lands to F. Louis Zimmerman, to secure a note for $600. After the filing of said motion by appellant, John R. Johnson, the said Ida M. Herlick and F. Louis Zimmerman, were, by the Reynolds Circuit Court, permitted to .intervene, as parties defendant, in IIeu of their remote grantor, Isaac-Reed, and filed objections to the setting aside of said nonsuit. The last named interveners will be designated hereafter as respondents. .

The venue was changed and the above cause, between appellant and respondents, was sent to the Circuit Court of Butler County, Missouri, where it was heard on the 27th day of April, 1917, and judgment rendered, denying to said John R. Johnson the right to he substituted as a plaintiff herein.

Appellant, in due time, filed his motion for a new-trial, which was overruled and the cause duly appealed by him to the Springfield Court of Appeals. The latter court, on account of title to real estate being involved, transferred the cause to this court.

■ I. The case of Minnie A. Norton et al. v. Isaac F. Reed et al. was pending in the Circuit Court of Reynolds County, Missouri, on November 25; 1914, with the stipulation aforesaid on file therein, between all the parties to said action, as to the final disposition of this . cauga pr;jor £0 the above' date, said plaintiffs, on May 27, 1914, by quit-claim deed, conveyed to Joseph A. Reed all their right, title and interest in the land in question, and to any damages for rents and profits thereon. On December 27, 1913, plaintiff, James T. Vandyke, conveyed, by quit-claim deed,' to said Joseph A. Reed, all his interest in the lands aforesaid, and in the damages due him for rents and profits thereon. On September 7, 1914, Joseph A. Reed conveyed by deed to appellant, John R. Johnson, all his right, title and interest in the lands aforesaid, which last described deed was duly recorded in Reynolds County on said September 7, 1914. It is contended by respondents, in their brief, that the conveyances, supra, did not convey to said Johnson the right to be substituted as plaintiff in this action and to enforce the provisions of said stipulation. In other words, it is asserted in respondents’ brief, page 8>, that:

“Some causes of action may be assigned, but our statute, Section 1729, Revised Statutes 1909, prohibits an assignment of a thing in action not arising out of contract. ’ ’

This contention is without merit. [Wiehtuechter v. Miller, 208 S. W. l. c. 41; McGinnis v. McGinnis, 274 Mo. l. c. 296-7, 202 S. W. l. c. 1090 ; Remmers v. Remmers, 217 Mo. l. c. 561; Choteau v. Boughton, 100 Mo. l. c. 410; Snyder v. Railroad Co., 86 Mo. 613; Coffman v. Railroad, 183 Mo. App. 622; Brown v. Railroad Co., 198 Mo. App. l. c. 76, 199 S. W. 708.] The rights of appellant, Johnson, must, therefore, be determined on the theory that he was entitled to be substituted as plaintiff in this case, in lieu of the original plaintiffs, whose interests in said land he had acquired by the conveyances aforesaid, unless he has lost such right by virtue of the nonsuit relied on by respondents.

II. This brings us ‘to the question as to whether or not the Circuit Court-of Reynolds County was justified in entering of record in this case, on November 25, the following entry:

/‘Dismissed. • by plaintiffs,, all costs having been paid. ’ ’

The costs were not paid! at the date of said dismissal, but were previously paid by Joseph A. Reed, when he acquired the interests of plaintiffs, and under an agreement made with them. Appellant, John R. Johnson, testified as follows:

“On November 25, 1914, I was not represented by any attorney in this case. I was not consulted and did not consent to, or participate in, the order of dismissal made herein. I did not dismiss it, authorize any one to dismiss it, or have anything to do with the dismissal of it. I bought the land before said order of dismissal.”

On cross-examination, he further testified:

“I was admitted to the bar, in December, 1912. C. M.- Buford did not represent me in the purchase of this land. I examined the stipulation pleaded herein before I bought the land. I was not a party to this suit at that time. ’ ’

At the date of said dismissal, both the plaintiffs and Joseph A. Reed, had parted with their interests in said land, the same having passed to appellant, Johnson, by virtue of the conveyances aforesaid.’ We find from the evidence that no one present, at the time of said dismissal, was authorized to represent J, R. Johnson. We are satisfied from the record that the trial court was misled by the remarks of some one present, when tbe dismissal was entered, who tbe court thought at the time was authorized to speak for the plaintiffs in said cause, but who, as a matter of fact, had no such authority. We think it manifest from the testimony that had the trial judge known at the .time of said dismissal that John R. Johnson was then the owner of plaintiffs’ interest in said land, and that he was not represented by any one present, he would not have entered the order of dismissal, and thereby deprived Johnson of the rights given him by his purohase, under the stipulation aforesaid.

The question still arises, as to whether Johnson, by virtue of his motion, as intervener in this cause, is en-entitled to have the record entry aforesaid cancelled, and an order made substituting him as plaintiff, in lieu of the original plaintiffs.

III. Is appellant entitled to the relief asked for in his motion? The latter could not be successfully sustained under Sections 2119, 2120 and 2121, Revised Statutes 1909, because there is nothing on the face of tbe circuit court record which indicates that any . , . , ,. T , . error had been committed. [Jeude v. Sims, 258 Mo. l. c. 39, and cases cited.] The motion before us contains all the facts necessary to constitute it a writ of error coram nobis. It points out a mistake made by the court, without the fault of appellant, based upon misapprehension of the actual facts, which if known to the court at the time, would have precluded it from dismissing the cause.

In Jeude v. Sims, supra, at page 40, Judge Walker, speaking for the Court in Banc, in respect to this subject, said:

“At common law writs of error coram nobis were writs granted by the court rendering the judgment for the purpose of correcting some error of fact. . [2 Tidd’s Practice, p. 1136.] The fact must be such a fact that, had it been known at the time of the rendition of the judgment, such, judgment would not have been entered. It must be a fact directly connected with the case in which the judgment was entered, and a fact wrongly considered in the entry of the judgment which is sought to be corrected by the writ of error .coram nobis.”

This writ is usually brought into requisition to correct some error of fact which did not appear in the record, and which was unknown to the court. The principles above announced are sustained by other authorities in this State, some of which are as follows: State v. Stanley, 225 Mo. l. c. 531 and following; State ex rel. v. Riley, 219 Mo. 667; Karicofe v. Schwaner, 196 Mo. App. l. c. 572, 196 S. W. 46; Hadley v. Bernero, 103 Mo. App. 549; Dugan v. Scott, 37 Mo. App. 663; 5 Encyclopedia of Pl. & Practice, 31. Appellant’s motion, therefore, entitled him to a writ of error aoram nobis on the facts before us.

IV. The trial court had before it, in passing upon appellant’s motion, and respondents’ objections thereto, all the parties claiming any interest in the lands involved in this litigation. John R. Johnson, by virtue of the conveyances aforesaid, had succeeded to the rights of plaintiffs in this cause, and the respondents were defending, by virtue of the deed from Isaac F. Reed to J. C. Webb, etc. R. I. January appeared as counsel for defendants, Isaac F. Reed and Martin Burnham, and signed the stipulation aforesaid, as their counsel. He was served with a copy of appellant’s motion, and appeared for respondents in resisting same.

V. It is conceded that at the time of the institution of this suit, on October 23, 1907, the defendants were in the possession of the real estate in controversy, and that both were duly served with process in said cause, on the date last aforesaid. On October 22, 1907, defen(jan^ Isaac F. Reed, executed and delivered to J. C. Webb a warranty deed, for the expressed consideration of $1200, for the above land. This deed was not recorded until October 24, 1907. The evidence tends to show that the original petition herein was not signed by either counsel or plaintiffs, but,, during the November Term 1907, of the Reynolds Circuit Court, an amended petition was filed in said cause, duly: signed by the same counsel, whose names were appended as attorneys for plaintiffs in the execution of said stipulation. Thereafter said defendants answered in said cause, and their attorneys of record, S. L. Clark and R. I. January, signed the stipulation aforesaid in behalf of said defendants. The suit was properly brought against said defendants, who were then in possession of said real estate. [Sec. 2385 R. S. 1909; Realty and Development Co. v. Norman, 259 Mo. l. c. 636 ; Mann v. Doerr, 222 Mo. p. 2, par. 5; Hunter v. Wethington, 205 Mo. 284, 103 S. W. 543; Houghton v. Pierce, 203 Mo. 723.] The filing of the petition on October 23,1907, although unsigned, was the commencement of said suit. [Sec. 1756, R. S. 1909; Knisely v. Leathe, 256 Mo. l. c. 364-5; State ex rel. v. Wilson, 216 Mo. 292; McGrath v. Railroad Co., 128 Mo. 1; South Missouri Lumber Co. v. Wright, 114 Mo. 326; Koch v. Shepard, 193 S. W. l. c. 602; Matthews v. Stephenson, 172 Mo. App. l. c. 228-9.]

Conceding that the original petition was not signed, it was clearly an oversight, that might have been corrected at any time, either before or after final judgment. [Secs. 1848, 1850, 1851, 1852, R. S. 1909; Cochran v. Thomas, 131 Mo. l. c. 274-5; Rosenheim v. Hartsock, 90 Mo. l. c. 365; Reamer v. Morrison Ex. Co., 93 Mo. App. l. c. 510.] Plaintiffs filed an amended petition at the November Term, 1907, which was answered by. defendants and the stipulation aforesaid duly filed. The filing of the amended petition, under the circumstances of this case, dates back by relation, to the filing of the original petition on October 23, 1907. [Land & Lumber Co. v. Franks, 156 Mo. l. c. 689, and cases cited; Lumber Co. v. Realty Co., 171 Mo. App. 629, and cases cited.]

We therefore hold, that respondents, as interveners in this case, are in no better position than they would have been had the original petition been duly signed.

YI. The original suit was properly brought against Isaac F. Reed and Martin Burnham, as landlord and tenant under Sections 1732, 2385, 2386, Revised Statutes 1909. When J. C. Webb purchased the interest of Isaac F. Reed, on October 22, 1907, and failed to file his deed for record until October 24,1907, he had the right, under Section 1732 supra, to be joined as a co-defendant, and defend his title, or to have it defended in the names of the original defendants.

It is conceded that S. L. Clark was attorney for defendants in this action, and signed the stipulation aforesaid as such attorney. We find upon examination of the record in Minnie A. Norton et al. v. Joseph A. Reed, 253 Mo. 237, that S. L. Clark appeared as counsel for Joseph A,. Reed, in defense of the latter’s title, in this court, after he had signed the stipulation aforesaid, providing that whatever judgment was finally rendered in the Joseph A. Reed, case, supra, should determine the rights of the parties in this litigation. In the above ca.se, reported in 253 Mo. 252, the other Division held that the administrator’s deed, under which Joseph A. Reed claimed title, was void, and the judgment below in favor of plaintiffs was affirmed. In this ejectment suit, the title of Isaac F. Reed depended upon the validity of the administrator’s deed declared void by the other Division in the Joseph A. Reed case. Respondent, Ida M. Her-lick, asserts title through her husband, J. 0. Webb, who claimed to have acquired the title of Isaac F. Reed, which was dependent upon the void administrator’s deed aforesaid.

We accordingly hold, that as against Ida M. Herlick, leaving out of consideration for the present the equities, if any, of F. Louis Zimmerman, appellant, John R. Johnson, was entitled, in the lower court, to have the order of the Reynolds Circuit Court, made in this cause on November 25, 1914, set aside and cancelled; and to be substituted as plaintiff in this cause, in lieu of the original plaintiffs. He is further entitled to a judgment, by the terms of the stipulation aforesaid, subject to such equities, if .any, as said intervener, F. Louis Zimmerman, may be able to present, after appellant Johnson has been substituted as plaintiff herein.

We accordingly reverse and remand this cause with directions to the trial court to set aside and cancel said order of dismissal; to substitute appellant, John R. Johnson, as plaintiff, in lieu of the original plaintiffs; to determine the equities, if any, of intervener Zimmerman; and to dispose of the issues in the cause in conformity to the views herein expressed..

White and Mosley, G.G., concur.

PER CURIAM: — The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMSON, J.

text:
    GEORGE BEALMER and WILLIAM L. BEALMER, Partners, Doing Business as BEALMER & SONS, v. HARTFORD FIRE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellant.
    Division Two,
    March 13, 1920.
    1. JURISDICTION: Not Contested by Either Party. Notwithstanding neither party has questioned the jurisdiction of a court, the first question to be raised and decided by any court in any case is whether it has jurisdiction in point of fact.
    2. -: Constitutional Question: Timely Raised. If the only ground" upon which the Supreme Court can have appellate jurisdiction of a case appealed to it is that the constitutionality of a certain statute is involved, the court must decide, although its jurisdiction is not questioned, whether such question was timely lodged in the case.
    3. -: -: -: Wrong Section. If the constitutionality of a certain section was not called in question in the trial court, that question, to be available as determining appellate jurisdiction, cannot be raised by assignment in the appellate court. If, by objections to the introduction of evidence and to the giving of certain instructions and by grounds stated in the motion for a new trial, appellant in the trial court challenged the cnnstitutionality of Section 7047 of the Revised Statutes, it cannot on appeal shift those objections to Section 7052, and have the Supreme Court assume jurisdiction on the ground, first assigned" in its brief, that said Section 7052 is unconstitutional for the reasons on which the validity of Section 7047 was challenged in the trial court.
    4. -: -: Construing Statute: Due Process. A wrongful construction merely state that the section is not ¡unconstitutional and mitted that such construction renders the statute unconstitutional, does not deprive appellant of its property without due process of law, or deny to it the equal protection of the laws, or introduce into the case a constitutional question in such wise as to confer appellate jurisdiction on the Supreme Court. A wrongful construction does not involve the validity of the statute, but tha validity of the court’s construction, and a wrongful construction amounts to no more than an erroneous judicial decision.
    5. -: -: Mere Assertion. A mere assertion that a certain section is unconstitutional is not sufficient to confer appellate jurisdiction on the Supreme Court. It is not enough that the instruction merely state that the section is unconstitutional and void because in conflict with named sections of the Constitution, without any statement, either, in the instruction or the brief, of the facts which create the conflict.
    Appeal from Macon Circuit Court. — Hon. Vernon L. Drain, Judge.
    Transferred to Kansas City Court of Appeals.

      Barger £ Hicks and Barker £ Jones, for appellant; Bates, Hicks £ Folonie, of counsel.
    (1) Sec. 7047, R. S. 1909, denies foreign insurance companies equal protection of the law. This section is violative of Section 1 of the Fourteenth Amendment to the Federal Constitution, and is unconstitutional and void. Said section conflicts with Sub-section 26, Section 53, Article 4, Constitution of Missouri, and with Article 2 of Section 30 of Constitution of Missouri. Southern Railway Co. v. E-reene, 216 U. S. 400. ('2) Defendant having been authorized to do business in Missouri was, after such authorization, entitled to be treated the same as a domestic insurance company and entitled to equal protection of the law. The imposition of conditions preceding entry into the State have no bearing on the question, as the point goes to the equal rights of the defendant after being admitted. Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U. S. 150. (3) To effectuate an assignment of a policy of fire insurance so as^ to create liability from the insuring company to the assignee, there must be (a.) a valid assignment by the owner of the policy to the assignee and (b) the consent of the insurance company to the assignment. If the minds of the seller of the property and the purchaser have not met as to assigning the insurance or the expressed consent of the insurance company has not been secured, then in either event it is ineffectual. 2 Joyce on Insurance (2 Ed.), sec. 1120. (4) The court should have directed a verdict as a matter of law, because no valid assignment of the policy was proven, nor any consent of the insurance company requested or given respecting same. Unexecuted intention to assign a policy does not amount to an actual assignment. Meadows ’ Guardian v. Meadows ’ Administrator, 13 Ky. Law Report, 495'. Fire insurance policies cannot be assigned without consent of the insurer. 4 Joyce on Insurance (2 Ed.), p. 2304. Assignment and consent thereto is a tripartite contract and must in every sense be a novation to have any legal effect. Swaine v. Teutonia Fire Insurance Co., 222 Mass. 108. (’5) Insurance agents, even though designated “general agents,” are not substitutes for their employer with authority to do anything whatsoever but must act within the apparent scope of their authority. Continental Insurance Company v. Schulmán, 205 S. W. 315.

      Ban R. Hughes and John R. Hughes for respondents.
    (1) The defendant’s agent countersigned the policies and followed the usual course of business he had pursued for years with the consent of the company. This made their agent a general agent and his agreements and knowledge was binding- upon the company. The company is estopped from disputing) the authority of its agent. Sheets v. Ins. Go., 153 Mo. App. 020; Rogers v.. Eire Ins. Co., 157 Mo. App. 671; Deland & Sons v. Ins. Co., 68 Mo. App. 282; Bealmer et al. v. Hartford Eire Ins. Co.,. 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W-. 627; Prichard, v. Conn. Fire Ins. C'o., 203 S. W. 223. (2) The extent and character of the agent’s authority is determined by the powers granted and the general course of dealing, and not the name by which the agent is designated by the company. Sheets v. Ins. Co., 153 Mo. App; G20; Nickell V. Ins. Co., 144 Mo. 420; Bealmer v. Hartford Fire Ins. Co., 193 S. W. 847. (3) The general agent has authority to bind the company and his agreements or knowledge will be imputed to the company. A local agent having the power to make contracts of insurance has authority to make assignments of policies. Nickell v. Ins. Co., 144 Mo. 420'; Sheets y. Ins. Co., 153 Mb. App. 620’; Bealmer v. Hartford Fire Ins. Co., 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 203 S. W. 223. (4) When the agent knows the exact conditions and the premium is accepted or not returned, the company will be held liable for the loss. Gray v. Ins. Co., 155 N. Y. 184; Rogers v. Ins. Co., 157 Mo. App; 671; Manning v. Ins. Co., 176 Mo. App. 678; Rosecrans v. Ins. Co., 66 Mo. App. 352; Bealmer v. Hartford. Fire Ins. Co., 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 203 S. W. 223. (5)1 Contracts of insurance need not be in writing. If the agent had authority his agreement for insurance or assignment of policies will bind the company. R. S. 1909', sec. 2993; Baile v. Ins. Co., 73 Mb. 371; Real Estate Saving Inst, v. Collonious, 63 Mo. 290; King v. Ins. Co., 195 Mo. 290; State v. Lincoln Trust Co., 144 Mo. 592; 15 Am. & Eng. Ency. Law (2 Ed.), 852; 1 Joyce on Insurance, sec. 525; Richards on Insurance, sec. 41; Vining v. Ins. Co., 80 Mo. App. 311; Bealmer v. Hartford Fire Ins. Co., 103 S. W. 847; Woolf oik v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 2Ó3 S. W. 223. (6) Sec. 7047, 1909, is constitutional. It is a general and not a special law. State v. Bishop, 128 Mo.. 373; State ex inf. v. Aetna Ins. Co., 150 Mo. 113; Hamman v. Central Coal & Coke Co., 156 Mo. 232; Ex Parte Berger, 193 Mo. 16-; Phillips v. Mo. Pac. Ry. Co., 86¡ Mb. '5401.
   WILLIAMSON, J.

This is a suit upon a fire insurance policy. The plaintiff recovered judgment below in the sum of $1417.60. A motion for a new trial having proved unavailing, this appeal is taken. The essential facts are as follows:

Appellant insured the church building of the Baptist Church of Atlanta, Missouri, against fire, in the sum of fifteen hundred dollars. W. J. Dearing was the “surveying agent” for appellant in Atlanta, and as such countersigned all policies issued by it in that city, including the one here in question. Appellant was duly authorized to transact the business of insurance in this State, and Bearing was a duly licensed agent. Thereafter, the trustees of the church sold the building thus insured to plaintiffs, including in the sale the unexpired insurance, which was to be transferred to the purchasers. Later, and before the policy had expired by lapse of time, the building was totally destroyed by fire. The contract between plaintiffs and the trustees was never reduced to writing.

There was evidence that appellant’s agent was informed, by plaintiffs, of their purchase of the building and unexpired insurance, and of the terms upon which it was made, very shortly after the purchase was made, and that he consented to the assignment of the insurance policy to plaintiffs and agreed to attend to the details necessary or usual in such cases, to-vest the title to the policy in plaintiffs. The policy was at that time in the agent’s possession. No written assignment of the policy to plaintiffs was ever made.

"W|. J. Dealing, testifying in behalf of defendant, stated that he represented the defendant as its agent at Atlanta; that his duties as such agent were to solicit insurance, take the application and send it in to the company, whereupon, if approved, it would be returned to him and he would look it over, and if conditions remained the same, would then collect the premium, countersign the policy and deliver it to the assured; that he had solicited the insurance here involved, and had countersigned the policy here in question, after receiving the premium; that no part of -the premium had ever been iefunded to the insured, or to plaintiffs, nor had defendant ever offered to refund any part of it, and that shortly after the sale, and before the fire occurred, he was informed that the trustees had agreed to assign the insurance to plaintiffs. Dealing, further testified that none of the trustees of the church said anything to him about assigning the policy, nor did any member of the building committee say anything to him about it, although the chairman of the board of trustees-told him of the sale of the building to plaintiffs; that he was never requested by anybody to assign the policy of insurance nor to have it assigned; that though he had represented the company for twenty years, he had never assigned a policy of insurance.

The, petition was sufficient in form. The answer admitted the issuance and delivery of the insurance policy, and the sale of the building, but denied the assignment of the policy, and denied that the defendant or its said agent had ever consented to the assignment. The reply was a general denial.

The assignments of error are that the court erred in refusing to direct a verdict for defendant as a matter of law; that instructions numbered one, two and four, given in behalf of plaintiffs, are erroneous; that instructions numbered one and two, requested by defendant, were improperly refused; that the court erred in admitting incompetent evidence; that “the court by rulings upon evidence and instructions, did so construe Section 7017, Revised Statutes 1909, as to deny defendant equal protection of the law, and said section so construed violates the constitutional rights and guarantees of the defendant,” and that the court erred in overruling the motion for a new trial, on the ground, among others, of the alleged unconstitutionality of Section 7017, supra. No question was made in the trial court as to the constitutionality of any other section of the statutes.

The plaintiffs below contended that the consent by defendant’s agent, Dealing, to the transfer of the insurance policy, and his knowledge of the sale and its conditions, bound the defendant company as effectively as if the policy had in fact been assigned. The trial court, in effect, so instructed the jury. Defendant’s instruction number two, which the court refused to give, was a declaration that Section 7017, supra, was unconstitutional and void because in conflict with the constitutional provisions hereinafter named. In the view we take of this matter, no further statement of the facts is necessary.

This appeal comes to this court because of the constitutional question alleged to be involved.

It is obvious from the foregoing statement of facts that if we have jurisdiction of this case it is because, and, solely because, a constitutional question is thought to be involved. Neither party has questioned óur jurisdiction, but the first question to be decided by any court in any case is whether or not it has jurisdiction in point of fact. It is as essential to the orderly administration of justice that we should decline to proceed in any case where jurisdiction is absent, as that we should unhesitatingly adjudicate when jurisdiction appears. We are thus confronted with the vital question: Is a constitutional question involved in this cause? No constitutional question was made by the pleadings. The first suggestion of a constitutional question 'appears in an objection to the introduction of certain evidence, and the objection then made, in plain terms, is that Section 7017, of the Revised Statutes of Missouri of 1909, is unconstitutional and void under Subsection 26, Section! 53, Article 4, of the Constitution .of Missouri, and under Section 1 of Article 14 of the amendments to the Federal Constitution, and also under Article 2 of Section 30 of the Constitution of Missouri.

Sub-section 26 of Section 53 of Article 4 of the Constitution of Missouri, forbids the passage of any law “granting to any corporation, association or individual any special or exclusive right, privilege or immunity, or to any' corporation, association or individual the right to lay down a railroad track.” We assume that by reference to Article 2 of Section 30 of our Constitution, Section 30 of Article 2 is meant. That section and Section One of the Fourteenth Amendment to the Constitution of the' United States, are the familiar sections of those constitutions relating to “due process of law.”

Similar objections are made to the introduction of other evidence from time to time “on constitutional grounds for the reasons heretofore stated.’’’ Upon the conclusion of the evidence appellant asked an instruction to the effect that that section, to-wit,, Section 7047, supra, was void because in conflict with the various constitutional provisions above named. This instruction was refused and an exception was duly saved. Appellant also objected to each instruction given in’ behalf of respondents on the ground-that each was “contrary to Section One of Article Fourteen of the Amendments of the Constitution of the United States, and unconstitutional and void under the terms and conditions” of the various provisions above named of the Constitution of Missouri.

In its motion for a new trial, appellant assigned as one ground that “the court erred in failing to hold Section 7047” supra to be unconstitutional and void because contrary to the várious constitutional provisions above enumerated. This was the only reason, touching upon constitutional questions, assigned in that motion. The motion and all of the objections above mentioned were overruled, and exceptions were duly saved.

Under the heading of “Argument,” appellant in its brief states its understanding of plaintiff’s position; quotes from Section 7052 of the Revised Statutes of Missouri of 19091, and states its contention on the constitutional questions claimed to be involved, in the following language:

“It was the contention of the plaintiffs in the trial court that, by virtue of the statutes of Missouri respecting agents of foreign insurance companies, the effect of such statute was to make the agent, licensed to do business for such company, the agent of the insurance company in every particular so that he was, to all intents and purposes, the insurance company. The section (Sec. 7052, R. S. 1909) reads as follows:

“ ‘Any person or persons in this State who shall . . . make or cause to be made directly or indirectly, any contract of insurance for such company or association, shall be deemed to all intents and purposes an agent of such company or association. ’

“This section, if interpreted to mean that one who makes an insurance contract shall be deemed the agent of the company and not the agent of the assured in every act entering into the making of the contract, is logical and constitutional. If construed to mean that one who issues or delivers a policy forever after is the agent of the insurance company for every purpose, world without end, it becomes an unconstitutional, unjust and oppressive act.”

The entire argument under this point is directed to the alleged invalidity of Section 7052 supra. In Paragraph Y of the argument, the following occurs:

“(c) The third instruction given on the part of the plaintiff is to the effect that if Dearing was permitted to countersign policies, then he had authority to agree to the assignment of the policy. We respectfully insist that such a construction of the statute makes the same violative of the constitutional rights of the defendant.”

The statute here casually mentioned is, from the context, Section 7052 supra. The first reference made in the argument to Section 7047 is found on a succeeding page. It is apparent at a glance that there is no constitutional question involved in this case so far as Section. 7052 supra, is concerned, for the plain reason that the constitutionality of that section was never called in question in the court below, as the record shows. It is the settled law of this State, declared in numerous decisions, that a constitutional question, to be available on appeal, must be made at the earliest opportunity that orderly procedure affords, and must thereafter be kept alive by appropriate steps., It cannot be raised for the first time in an appellate court, if it could properly have been raised in earlier stages of the proceeding. “This rule has been stated time and again-until it should be considered no longer a matter of debate.” [Strother v. Railroad, 274 Mo. 272, l. c. 277; Lohmeyer v. Cordage Co., 214 Mo. 685, l. c. 689; Miller v. Connor, 250 Mo. 677, l. c. 684.] It follows that there is no constitutional question here as to Section 7052 supra.

A slightly different situation exists, so far as a constitutional question is concerned, as to Section 7047 supra. It will be noted that the only constitutional question preserved in the motion for a new trial is that relating to the alleged invalidity of Section 7047 supra. The pertinent portion of this section is as follows.:

“Foreign companies admitted to do business in this State shall make contracts of insurance upon property or interests therein only by lawfully constituted and licensed resident agents, who shall countersign all policies so issued.” [Sec. 7047, R. S. 1909.]

Turning to appellant’s brief, we find one, and but one, assignment of error relating to constitutional questions, and that one is in these words: “The court, by rulings upon evidence and instructions, did so construe Section 7047, Revised Statutes 1909, as to deny defendant equal protection of the law, and said section, so construed, violates the constitutional rights and guarantees of the defendant.” It thu® appears that it is not the validity of the statute, but the validity of the trial court’s construction of the statute, which is attacked on the grounds of unconstitutionality. Granting (without deciding) that the trial court’s construction was wrong', and granting (also without deciding) that, as thus wrongly construed, that section would be unconstitutional, does that state of affairs so introduce a constitutional question into this case as to bestow upon this court a jurisdiction which it would not otherwise have? We do not think so. ■ We have decided many times that it does not.

“If the circuit court misconstrued the statutes and its ruling is permitted to stand, plaintiff will be deprived of his property when he ought not to be; but it by no means follows that he will- be deprived of it without due process of law or in denial of the equal protection of the law. He will be deprived of it by an erroneous judicial decision, given after he had notice and his day. in court. Such a mistake has been held time and again to constitute no denial of due process or of the equal protection of the law.” [McManus v. Burrows, 217 S. W. 512, l. c. 514. See, also, Stegall v. Pigment & Chemical Co., 263 Mo. 719, l. c. 723, 173 S. W. 674; Sublette v. Railroad, 198 Mo. 190, 95 S. W. 430.]

The only other references to a constitutional question pertaining to Section 7047 supra which appear in appellant’s brief are as follows:

Under “Points and Authorities,” appellant asserts that Section 7047 supra is in violation of the constitutional provisions above named, and denies foreign insurance companies equal protection of the law; and under the head of “Argument,” under Point Five, appellant says:

“The second instruction of the defendant refused by the court squarely raised the question of the constitutionality of Section 7047, Revised Statutes 1909. We respectfully submit that the same should have been given by the court.” ,

This is not sufficient. A mere assertion of the existence‘of a constitutional question is not sufficient to confer jurisdiction. Questions of so grave a nature cannot thus lightly be raised. We think the assignment merely colorable and without merit. [Botts v. Railroad, 248 Mo. 56, l. c. 59 et seq.; Moore v. United Rys., 256 Mo. 165, l. c. 166; Stegall v. Pigment Co., 263 Mo. 719, l. c. 722; McManus v. Burrows (In re Gerhart), 217 S. W. 512.] We reach this conclusion the more readily from the fact that a mere reading of the statute in question is strongly persuasive that it is not subject to attack on constitutional grounds, under the facts in this case. It seems to be a reasonable regulation, applicable alike to all foreign insurance companies doing business in this State, and not open in any wise to the questions here attempted to be made concerning it, but we do not wish to be understood as now passing upon the constitutionality of Section 7047, supra. It is not before us. What is here said is by way of argument only. ‘ ‘ There must at • least be some substance to the' constitutional question before it possesses the vitality to force jurisdiction here. ’ ’ [Carson v. Ry. Co., 184 S. W. 1039, l. c. 1041; State ex rel. v. Woodman, 193 S. W. 570.] The rule is the same in the United States Supreme Court. • “It is settled that not every mere allegation of a Federal question will suffice to give jurisdiction. There must be a real, substantive question on which the case may be made to turn; that is, ‘a real and not a merely formal Federal question is essential to the jurisdiction of this court.’ ” [White, J., in Equitable Life Assurance Society v. Brown, 187 U. S. 311.] To the same effect, see Shiras, J., in St. Joseph Railroad Co. v. Steele, 167 U. S. 662, and Brewer, J., in Hamblin v. Western Land Co., 147 U. S. 532. We think counsel for appellant correctly stated his grievance, if any he has, concerning Section 7047 supra, as well as Section 70521 supra, when he complained of the trial court’s construction of those sections. But, as we have shown, an erroneous construction of a statute does not give this court jurisdiction of the case on appeal, when it would not otherwise have it. And we are not to be understood as intimating that the trial court’s construction of these statutes was erroneous.

For the reasons above stated, we hold that we have no jurisdiction of this cause. It therefore should he transferred to the Kansas City 'Court of Appeals for1 decision upon the merits. It is so ordered.

All concur.


author: MOZLEY, C.

text:
    WILLIAM MAZE, Appellant, v. ERNEST BOEHM, et al.
    Division Two,
    March 13, 1920.
    1. DEED: Mutual Mistake: Intention: Reformation. A deed is presumed to express the final agreements of the parties only when it in fact expresses their intention. "Where the intention of the parties is not expressed, hut the deed recites mutual mistakes, a court of equity can reform it to 'express their intention.
    2. -: ^-. Character of Proof. The burden of proof is on the party asserting that the deed did not express the intention of the parties, to establish the mistake and'its mutuality, hut such proof need not reach the high standard of beyond a reasonable doubt, hut is sufficient if cogent, clear and convincing.
    3. LIMITATION'S: Possession: Pertinent to Good Faith. Although , a suit to quiet title does not turn on the question of adverse possession, hut on the issue of mutual mistake in the description of the land in the deeds under which defendants claim, testimony regarding their possession is pertinent for consideration, as showing their good faith and intention in the transaction out of which their claim originated.
    Appeal from Greene Circuit Court. — Hon. Arch A. Johnson, Judge.
    Affirmed.

      Collins, Holloday S Stough and Hamlin & Hamlin, for appellants.
    (1) The deeds offered by the plaintiff established a complete chain of title in him, and a prima-facie presumption is indulged that they contain the ultimate intention of the parties. Griffin v. Miller, 188 M'o. 334. The burden is upon the party asserting a mistake. And the mistake must have been mutual. Parker v. Vanhoozer, 142 Mo. 6-27. Courts of equity do. not grant the remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of error. Brown v. Gwin, 197 Mo. 506-. (2) The possession of the bank, Bucheit and Boehm was not adverse, and did not put the Statute of Limitations in operation, because each only claimed to the true line, and did not know they were occupying land called for by plaintiff’s deed. Tamm v. Kellogg, 49' Mo. 118; Jacobs v. Moseley, 91 M!o. 46-2. They did not claim to the line as fixed by the building, but claimed to own the land described in their deed. In order to have held adversely théy must have known they were occupying plaintiff’s land and claimed to own same. McWilliams v. Samuel, 123 Mo. 662.

      Levi Engle and T. J. Murray for respondent.
    (1) “Equity has power to” and “will reform a written contract, which by reason of a mutual mistake of fact, fails, in a material particular, correctly to express an actual previous oral agreement. ’ ’ Henley v. Sullivant, 248 Mo. 672; Whittaker v. Lewis, 264 Mo. 208. (2) “If a deed is drawn by accident or mistake to embrace property not intended by the parties, equity will construe the grantee to be a trustee, and will execute the trust by reforming the deed or by ordering a reconveyance. It would be against natural right to .allow a person to.hold property which he never intended to buy, and which has come to him by such mistake.” Perry on Trusts, sec. 186; Beach on Trusts and Trustees, sec. Ill; Smith v. Walser, 491 Mlo. 250; Neefe v. Seeley, 49 Mo. 2091; Pitch v. Gosser, 54 Mo. 267; Leitensdorfer v. Delphy, 15 Mo. 160. (3) Visible possession is notice of the possessor’s right and title. Squires v. Kimball, 208 Mo. 119; D'avies v. Briscoe, 81 Mo. 27; Shafer v. Detie, 191 Mo. 391. (4)-“The unquestioned possesssion of the respective parties measured the claim of each, and was for that reason evidence of their intention in the transaction which was the origin of that claim.” Fischer-v. Dent, 259 Mb. 91.
   MOZLEY, C.

'This is an action brought by plaintiff against defendants to recover possession of, and quiet title to, the following described real estate at Fair Grove, in Greene County, Missouri, to-wit: Beginning 70' links east and 434.9* feet south of the southwest corner of the northeast quarter of the northeast quarter of Section 29, Township1 31, Range 20, thence west 124 feet, thence south 60 feet, thence east 124 feet, thence north 60 feet to the place of besinning. This description includes the particular land in controversy in the present action. It is described in the decree of the court below as follows: “Beginning 70' links east and 445.44 feet south of the southwest corner of the northeast quarter of the northeast quarter of Section 29, Township' 31, Range 20, thence west 124 feet, thence south 10 feet, thence east 124 feet, thence north. 10 feet to the place of beginning1;. ”

The petition contains two counts at law. The first alleges ownership in the plaintiff and demands judgment for certain rentals alleged to be due him and for possession of the premises; the second count is an ordinary action to quiet title.

Defendant Boehm filed a separate answer in' two counts, the first admitting that he claimed- to own the land in fee simple and generally denying the other allegations -of the petition. The second count is in equity and sets forth that M. S. Murrell was the orginal owner of all the first described land; that on the 11th day of April, 1906, he and his wife sold said land to the Bank of Fair Grove and executed and delivered to said bank a deed therefor, and said bank, thereupon, went into actual possession thereof. The bank thereafter sold to L. L. Cox the north 20.5 feet, described as beginning at the northeast comer of the land in controversy, but owins1 to a, mistake of- the parties in the description contained in the deed, said land was erroneously described and did not convey the land intended to be conveyed. The bank continued' in the actual possession of the land, claiming to own it, until May 3, 1909, when it’ sold the same, and other land adjoining it on the south, to one John Buchheit, and put him in possession thereof, but in making the deed to said Buchheit the land was mistakenly described and did not convey the premises intended to be conveyed. Buchheit took possession and remained therein until the 6th day of May, 1909, when he sold same and other lands adjoining it to defendant, Boehm, but owing to a mistake in making the deed said premises were not correctly described therein.

In the execution of the deeds in the chain of title which culminated in plaintiff, the same mutual mistake is present. Neither L. L. Cox, nor those claiming title to the land in controversy through or under him, including the plaintiff, ever bought or paid for or intended to buy and pay for said • land in, controversy, neither did they or either of them ever set up any claim or interest therein, except the plaintiff, and he not until the mistakes in the several deeds were discovered in the spring of 1916. . '

The answer also pleads the ten-year Statute of Limitations.

Defendant Sanders filed a separate answer which amounts merely to a general denial.

With the issues thus made up they were tried to the court on the 25th day of November, 1916, with the result that the court decreed the title of the land in suit in defendant Ernest Boehm, and divested all title and interest or apparent title and interest out of plaintiff and invested same in said defendant. The court further decreed the correction of the erroneous descriptions in said deeds so as to make them conform to and express the mutual intention of the parties.

After an unsuccessful encounter with a motion for new trial and a motion to arrest the judgment, plaintiff duly appealed to this court.

. I. Appellant makes five assignments of alleged error of the lower court which he says will justify this court in reversing the judgment. They are:

“1. The court erred in rendering judgment in favor of the defendant, because the same is unsupported by the evidence and is against the law; and because- under the evidence and the law the judgment should have been for plaintiff.

“2. Because the record evidence showed that the fee-simple title is vested in plaintiff and that the court erred in holding the defendant proved an equitable title paramount to plaintiff’s.

“3. Because the court erred in holding that a mistake had been made in the execution of the deed made by Murrell to the bank and by the bank to Buckheit and Cox.

“4. The court erred in allowing a witness to testify about a conversation he had with said Murrell, the plaintiff not being present, and any agreement they may have entered into would constitute no defense after the execution and delivery of the deed from said Murrell to said bank.

“5. Because the judgment was for the wrong party and was wholly against the law and the evidence.”

Appellant, in his brief, includes all of the above assignments, except assignment number 4, under one head.

He first contends “that the deeds offered by .plaintiff established a complete chain of title in him, and a prima-facie presumption is indulged that they contain the ultimate intention of the parties,” and cites in support thereof Griffin v. Miller, 188 Mo. 334.

This could only be true where the conveyance expresses the intention of the parties in fact, but not true where from a mutual mistake made the intention of the parties is not expressed.

In the case cited and relied on by appellant the court, after stating that at the common law where a contract or agreement was committed to writing if complete on its face, it was conclusively presumed that all prior negotiations were merged in the writing and that the terms thereof could not be contradicted or: varied by parol evidence, added further on the same page: “But from time immemorial courts of chancery have exercised the right to correct written instrumients which have been erroneously framed, as where it is admitted or proven that am< instrument intended by both parties to be prepared in one form, has by an undesigned insertion or omission, been prepared or executed in another.” (Italics ours).

That courts of equity have ample power to reform instruments burdened with mutual mistakes of the parties is no longer an open question in this State or any other State whose law we have had occasion to examine in our research upon this question in the instant case. [Horince v. Ins. Co., 201 S. W. 958; Williamson v. Brown, 195 Mo. 313, l. c. 332-333; Parker v. Vanhoozer, 142 Mo. 627; Ins. Co. v. Lead Co., 169 Mo. App. 561; Dougherty v. Dougherty, 204 Mo. 228; Moran Bolt & Nut Mfg. Co. v. St. Louis Car Co., 210 Mo. 729; Brown v. Gwin, 197 Mo. 506; 2 Pomeroy’s Equity Jurisprudence, sec, 845; Thompson v. Phoenix Ins. Co., 136 U. S. 287, l. c. 295; Hartford Fire Ins. Co. v. McCarthy, 77 Pac. 90; Lansing v. Ins. Co., 93 N. W. 756; Corrigan v. Tiernay, 100 Mo. 277; Fischer v. Dent, 259 Mo. 86.]

It is true, as contended by appellant, that the burden of pro'of is on the party asserting the mistake and its mutuality as well This is abundantly established by the authorities cited supra, but such proof need not reach the high requirement of “beyond a reasonable doubt.”

In the case of Williamson v. Brown, supra, and • many other cases, this court granted a decree to reform the instrument where there was a conflict in the evidence, the testimony, however, to establish that the mistake was made and the mutuality of the parties in making it, must be clear, cogent and convincing.

In the insthnt case the mistakes and their mutuality are conceded to have been made and to exist by the parties to the action. The plaintiff testified: “In the latter part of February, 1916, I found that the land described in my deed only took half of my store building and including half of another store building occupied by Mr. Boehm’s tenant.” (Italics ours). This is a positive concession by both sides that the mistake existed and that they were mutually made, and therefore, fully meets the requirement of the rule that the proof must be dear, cogent and convincing, and with more certainty of its correctness.

Under the certainty of the existence of said mistakes and of their mutuality,-the court not. only had the power, as above pointed out, but it was its duty to decree a reformation thereof in accordance with the facts. We rule the point against appellant.

II. Under “Points and Authorities” appellant directs an argument to the effect that the Statute of Limitation has no application to the ease and that the court erred in giving it consideration. Appellant made no °^iecfion the testimony in regard to possession in the course of the trial, nor did he assign it as error either in the motion for new trial or - in. arrest of the judgment, and for this reason the contention might be disregarded under the rules of this court; but we deem it proper to say that the case did not turn on the question of adverse possession in the court below. Such testimony was, however, pertinent to be considered as showing the good faith of defendants and their intention in the transaction which was the origin of their claim. Fischer1 v. Dent, supra. The contention is without merit and will be overruled.

We hold that the judgment of the lower court was correct under the law and, accordingly, affirm it. It is so ordered.

Bailey and White, GG., concur.

PER CURIAM: — The foregoing- opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: RAILET, C.

text:
    THE STATE v. EARNEST HOWARD BARNES, Appellant.
    Division Two,
    March 13, 1920.
    1. INFORMATION: Sufficiency: All Words of Statute. The Constitution declares that in criminal prosecutions the accused shall have the right to “demand the nature and cause of the accusation,” and that means that the information shall specifically bring the accused within all the material words of the statute he is charged with having violated. In criminal pleading it Is - an inflexible rule that, in the indictment or information for a felony, nothing can be left to intendent or implication.
    2. -: Carnal Knowledge: Age of Accused.. Where the statute in force at the time declared that “if any person over the age of seventeen years shall have carnal knowledge of any unmarried female of previous chaste character,” etc., he shall be guilty of a felony, an information charging that the defendant was “then and there over the age of sixteen years,” is fatally defective. To have been a sufficient information it should have specifically alleged that he was at the time over the age of seventeen years. [Distinguishing State v. Allen, 267 Mo. 49, and State v. Volz, 190 S. W. 307.]
    3. -: -: -■ — : .Cured by Evidence. Nor was such fatal defect in the information cured by testimony showing that at the time the offense was committed defendant was over seventeen years of age.
    4. -: -: — : -: Statute of Jeofails. Nor is the fatal defect in the information alleging defendant was over the age of sixteen years of age at the.time the offense was committed, when the statute requires him to have been over seventeen years of age, cured, after verdict of guilty, by the Statute of Jeofails (Sec. 5115, R. S. 1909).
    5. EVIDENCE: Cross-Examination of Own Witness: New ¡Matter. Where a witness for defendant, on his cross-examination by the State, has testified to material new matter, the counsel for defendant, iii re-examining him as to such new matter, is entitled to a'specific answer, and an objection to such re-examination is not to be sustained on the theory that he is defendant’s witness and defendant’s counsel is not entitled to cross-examine him. The new matter having been brought out by the State, defendant is entitled to have the witness state exactly what defendant said to him, and not his mere conclusion.
    6. JUDGMENT: Carnal Knowledge: Seduction. Where defendant is charged with statutory rape, a judgment finding him guilty of seduction is erroneous.
    Appeal from Newton Circuit Court. — Eon Charles Henson, Judge.
    Reversed and remanded.

      M. E. Benton and Horace Ruark for appellant.
    (1) The information is had in that everything- charged in the information may be true and the defendant still not guilty of any offense. He might have been over sixteen and under seventeen years of age at the time of the alleged crime. State v. Wade, 267 Mo. 256; State v. Bengsch, 170 lib. 104; State v. Thieraup, 167 Mo. 429; State v. Hogan, 164 Mo. 654; State v. Buster, 901 Mo. 518; State v. Timeus, 232 Mo. 184; State v. Phelan, 159 Mo. 122; State v. Holden, 48 Mo. 93; State v. Hesseltine, 130 Mo. 468; State v. Evers, 49 Mo. 542;, 2 BishorJ, Criminal Procedure, sec. 818; Schramm v. People, 220 111. 16 ;, Hubert v. State, 74 Neb. 220; It is the cardinal rule of criminal pleading, that in an indictment or information for felony, the information must charge every essential fact constituting the offense with certainty. Nothing can be left to intendment or implication. State v. Timeus, 232 Mo. 177'; 1 Bishop ’s Criminal Procedure, sec. 81; State v. Rector, 126 Mb. 340;. State v. Ferguson, 152 Mo. 92; State v. Hall, 130 Mo. App. 174; State v. Basket, 52 Mo. App. 389; State v. Sparrow, 521 Mo. App. 374; State v. Raymond, 54 Mb. App. 425. This defect in the information is not cured by the Statute of Jeofails. State v. Meek, 70 Mo. 358; State v. Cline, 264 Mo. 416; State v. Woodward, 191 Mo. 631; State v. Blan, 69 Mb. 317; State v. Green, 111 Mo. 588. (2) The court erred in refusing to permit the defendant to re-examine the witness Lee Boydston as to matters brought out by the State in cross-examination. State v. Coats, 174 Mo. 423; 14 Ency. Evidence, 619; 8 Ency. Pleading and Practice, 124-125.

      Frank W. McAllister, Attorney-General, Lewis II. Cook, Special Assistant, for respondent.
    (1) The information follows the approved form of this court in all material matters with one exception. State v. Perrigan, 258 M!o. 233. (2) The information was drawn under Sec. 4472, R. S. 1909, and reads in part that “he, the said Earnest Howard Barnes, being then and there over the age of sixteen years,” etc. The carnal knowledge occurred on February 25,1917. The Laws 1913, p. 219 (approved Mkrch 25, 1913), amend Sec. 4472, R. S. 1909', so that this part of the information should have read “over the age of seventeen' years.” The evidence conclusively shows by the testimony of the mother of the defendant and other witnesses that he was nineteen years old at the time of the carnal intercourse alleged. So this erroneous averment as to the statutory minimum does not prejudice defendant in any wav. State v. Allen, 2:67 Mo. 49; State v. Volz, 190' S. W. 307. (3) The defendant was charged with carnal knowledge of a woman between the ages of fifteen and eighteen years of age and convicted of this charge. The record shows that when sentence was px*onounced defexxdaxxt was sentenced to the pexxitentiary not for the carnal intercourse of which he had béexi convicted, but for seduction. Uxxless it can be said that carnal knowledge, statutoiy rape and seductioxx can be used synoxxymously the case should be reversed and remanded. Ixx the case of State v. Weber, 272 Mo. 475, appellant was charged under Sec. 4472, R. S. 1909, as amended by Laws 1913, p. 219!, with carnally knowing a woman betweexx fifteen and eighteen years of age and a general verdict was returned fixxding defendaxxt guilty as charged, etc. The opinion states' that the ixxfornxation charges statutory. rape. The material elemexxts of the crime are identical and so it is in seduction. While the sentence is not strictly in accord with the verdict the departure is one of language merely. If this contention is not well taken, we concede, by the authority of State v. Duff, 253 Mo. 415, 423, that this is no judgment. If so, we respectfully ask that the court reverse the case and remand it back to the Newton County Circuit Court in order that the defendant may be properly sentenced'.
   RAILET, C.

On October 9, 1918, the prosecuting attorney of Newton County, filed in the circuit court of said county, an information, which, without formal parts, reads as follows:

“Now comes Leo H. Johnson, Prosecuting Attorney within and for the County of Newton in the State of Missouri, under his oath of office and upon his information and belief and upon the duly verified affidavit of Edith J. Cherry, informs the court and presents and charges to the court that:

“Earnest Howard Barnes, on the 25th day of February, A. D. 1917, at the County of Newton and State of Missouri, did unlawfully and feloniously make an assault upon one Edith J. Cherry, he, the said Earnest Howard Barnes, being then and there a person over the age of sixteen years, and she, the said Edith J. Cherry, being then and there an unmarried female of previous chaste character and between the ages of fifteen and eighteen years of age, to-wit, of the age of fifteen years; and her, the said Edith J. Cherry, he, the said Earnest Ploward Barnes, did then and there unlawfully and feloniously have carnal knowledge of abuse contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

On October 14, 1918', defendant waived formal arraignment and entered his plea of not guilty. The case was tried before a jury on February 28, 1919', and on said date the following verdict was returned:

“We, the jury, find the defendant guilty and assess his punishment at 2 years in the penitentiary. ’ ’

Defendant, in dne time,'filed Ms motions for a new trial and in arrest of judgment. Both motions were-overruled, sentence pronounced on defendant, and judgment entered on the verdict1 aforesaid.

In due time and form, defendant was granted an appeal to the Supreme Court.

His counsel have filed a brief in this court, the first page of which, contains the following:

‘ ‘ The evidence- shows the usual contradiction of testimony. The prosecuting witness, Edith Cherry, affirming and the defendant denying the act of intercourse. The evidence is sufficient to sustain the verdict of the jury, and the appellant makes but two contentions upon this appeal. First: That the information is bad; and second, that the court erred in refusing to permit the re-examination of a witness, Lee Boydston. ”

The evidence of the State tends to show that the sexual intercourse complained of occurred in Newton County, Missouri, on February 25, 1917; that Edith J. Cherry, the prosecutrix, was then over fifteen years o-f age and under eighteen years of age; that she had never had sexual intercourse with any one prior to said date; that as a result of the above act of sexual intercourse, the prosecutrix, on November 24, 1917, gave birth to a baby girl; that the defendant was the father of said child; that defendant on said 25th day óf February, 1917, was over the age of seventeen years; that prosecutrix was an unmarried female at the time of trial, and had never been married.-

The evidence of defendant tendedi to contradict that of respondent, except as to defendant’s age. Appellant likewise offered testimony tending to show that prior to February 25, 1917^ the reputation of the prosecutrix in that neighborhood for chastity, was bad. He likewise offered testimony tending to show that on February 25, 1917, he was in Oklahoma, etc.

Appellant, in his abstract of the record, says: “As no question is raised by the defendant as to the giving or refusing of instructions, they are not set out herein. ’ ’

We have examined the instructions given by the court and find that they fairly, correctly and fully cover all the issues in the case.

Such other matters, appearing of record, as may be necessary, -will, be considered in the opinion.

I. Appellant, in his motion in arrest of judgment, as well as in his brief on file here, challenges the sufficiency of the information heretofore sett out. As the act complained of, is said to have occurred on ]j'epriiary 25, 1917, the validity of the information will have to be determined under Section 4472, Revised Statutes 1909, as amended by the Act of 1913, Laws of 1913, at pages 218-9, which reads as follows:

“If any person over the age of seventeen years shall have carnal knowledge of any unmarried female of previous chaste character, between the ages of fifteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term not exceeding five years, or by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than one month nor more than six months, or by both such fine and imprisonment, in the discretion of the court.”

In passing upon the validity of foregoing information, we should keep in mind Section 22 of Article II. of our Constitution, which provides, among other things, that in criminal prosecutions the accused shall have the right, “to demand the nature and cause of the accusation.” In other words, it provides, that the information shall specifically bring the defendant within all the material words of the statute, for it is the inflexible rule in criminal pleading that, in all indictments or informations for felonies, nothing can be left to intendment or implication. [State v. Wade, 267 Mo. l. c. 256; State v. Timeus, 232 Mo. 177; State v. Keating, 202 Mo. l. c. 204; State v. Birks, 199 Mo. l. c. 271; State v. Meysenburg, 171 Mo. 1; State v. Thierauf, 167 Mo. 429; State v. Hagan, 164 Mo. 654; State v. Furgerson, 152 Mo. 92; State v. Evans, 128 Mo. 406; State v. Austin, 113 Mo. l. c. 543; State v. Buster, 90 Mo. l. c. 518; State v. Gabriel, 88 Mo. l. c. 642; State v. Hayward, 83 Mo. l. c. 304 and cases cited; Schramm v. People, 220 Ill. 16; Hubert v. State, 74 Neb. 222; Wharton's Crim Pl. & Prac. (9 Ed.) sec. 220; 1 Bishop’s Crim. Procedure, secs. 81, 86, 88, 519.]

Reverting to the Act of 1913, page 2191, we find that the information must, in order to meet the requirements of the law, specifically show the following: (1) That the person charged, must have been over seventeen years of age| when the alleged offense was committed; ('¿¡ that the person charged had carnal knowledge of an unmarried female of previous chaste character; (3) that the latter, at the time of the offense, was between tfie ages of fifteen and eighteen years. Tested by the authorities heretofore cited, the information before us is fatally defective, in failing to allege that defendant, on February 25,- 1917, was over the age of seventeen years. The averment, tfiat defendant, on said date, was over sixteen years of age, was not equivalent to an allegation, that he was then over seventeen years of age. He may have been over sixteen at said date, and yet less than seventeen years of age. The information would have been as valid, without mentioning defendant’s age, as to have stated it in the language of the complaint. If an information can be upheld without prerequisite number 1 supra, then either of the other two requirements, or both, might be dispensed with for the same reason. The defendant is charged with statutory rape, and has been convicted on an information which does not contain one of the material averments necessary to constitute the offense.

It is suggested in the brief of respondent that the testimony shows defendant was over seventeen years of age on February 25; 1917, and that he was not injured by reason of the failure of the complaint to so allege. In support of the above suggestion, we are dted to State v. Allen, 267 Mo. 49, and State v. Volz, 190 S. W. 307. We do not thinla the facts in either of the above cases are similar to those at bar.

In State v. Allen, the information was filed on February 5, 1914, after Section 4472, Revised Statutes 1909, was amended by the Act of 1913, Laws 1913, pages 218-9. The prosecutrix was assaulted, according to the information, in March, 1913, while Section 4472, supra, was still the law of the State. The information alleged that defendant, at the time of said assault, was over seventeen years of age, while the prosecutrix was then alleged to be between fifteen and eighteen years of age. Now, the information having alleged, and the evidence having disclosed, that defendant in the Allen case was over seventeen years of age at the time of the offense, he was clearly brought, so far as his age is concerned, within the provisions of both Section 4472 supra and the amendatory Act of 1913. The information charged that the prosecutrix, at the date of the assault, was between fifteen and eighteen years of age. This was a sufficient allegation as to her age, under either Section 4472 or the present law. The evidence in above case disclosed that the allegations of the complaint were correct as to the respective ages of defendant and the prosecutrix. It was held that defendant had not been prejudiced by reason of the foregoing allegations in respect to the i*espective ages of defendant and the prosecutrix. In other words, as the information in the Allen case charged that defendant was 'over seventeen years of age, when he committed the assault, it would have been sufficient, as to his age, under either Section 4472: or the Act of 1913. This must necessarily be true, as the allegation of seventeen years, in regard to his a'ge, would cover the sixteen years specified in Section 4472 supra.

In State v. Volz, no question was raised, or considered by the court, as to the sufficiency of the information. The court held in above case that an instruction, which required the jury to find that defendant was over sixteen years of age, was harmless, where the u-ncontradicted evidence fixed his age at twenty-one.

We are of the opinion that neither of the above cases cited deal with the subject now before ns. To sustain the validity of the information a,t bar would not only be in contravention of the constitutional provision heretofore mentioned, but in direct conflict with the well established principles of law enunciated in the long line of well considered cases heretofore cited.

(á) In the case of State v. Allen, 267 Mo. 49, heretofore considered, at page 56, the court cited Section 5115, Revised Statutes 190®, known generally as the Statute of Jeofails, in support of its contention that defendant had not been prejudiced by the- language of the information charging him with having been seventeen years of age, at the time of the alleged assault, when Section 4472, Revised Statutes 1909, authorized his conviction if he was over sixteen years of age. The court, in above case, did' not hold that an information would be good under the present law, which failed to charge that defendant was over seventeen years of age when the assault,was committed. Nor, on the other hand, does the Statute of Jeofails, supra, render valid an information, under the present law, which fails' to aver that defendant, at the time of the assault, is over the age of seventeen years. [State v. Cline, 264 Mo. l. c. 419-20; State v. Woodward, 191 Mo. l. c. 631; State v. Green, 111 Mo. l. c. 588; State v. Meek, 70 Mo. l. c. 358; State v. Blan, 69 Mo. 317; State v. Pemberton, 30 Mo. 376.]

II. Defendant complains of the action of the court in sustaining the State’s objection to a certain inquiry propounded to defendant’s witness, Lee Boydston, on re-examination. In order to pass upon question intelligently, we mil give the whole of the re-examination of said witness by defendant, up- to and including the question at issue, which reads as follows':

“Q. When was this medicine bought, when you were working for him (defendant) ? A. Yes, sir.

“Q. And that was sometime between the 5th or 6th of February and the last of February? You quit the last day of February I believe? A. Yes, sir.

“Q. You wasn’t getting any medicine for an abortion for this girl at this time was you? A. He didn’t tell me whaf he was getting that for anyway.

“Q. Wasn’t it something he got to use on the machine? A. He didn’t tell me what he got it for.

“Q. He was asking you if Mr. Barnes here, Howard, didn’t say something to you about sending him some word. I wish you would just tell us what it was, in your own way, what it was Barnes said to you if you can remember. A. I can’t remember1 the exact words. Something, like I told him.

£ ‘ Q. The substance of it as well as you can remember. I would like to- get your idea? A. I told' Mr. Tad-lock the best I could.

<£Q. Now can’t you tell us just what it was Mr. Barnes said, as well as you, can remember¶

“Mr. Tadlock: If the Court please, this is their witness.. I don’t think they ought to cross-examine.

“The Court: The objection will be sustained.” ' (Italics ours.)

An exception was duly saved as to said ruling.

This witness was introduced by defendant for the purpose of showing that defendant was in Oklahoma on February 25, 1917, when the assault is charged to have occurred. Counsel for the State, as new matter, sought to show by the witness that defendant had bought certain medicine, and told witness, that if anything happened to the little girl to let him know. The witness answered the questions propounded by the State, in a very indefinite and uncertain manner, but left the impression that defendant had bought some medicine, and that he had requested witness to let him know if anything happened to the little girl. Witness was being re-examined by counsel for defendant, as to the new matter brought out by the State, when the above objection was sustained by the court. This evidence, ijf believed by the jury, was very damaging to defendant, as it tended to corroborate the prosecutrix. The appellant had the right, as a part of his legitimate re-examination of his own witness, in respect to the new matter brought ou't by the State, to ask the witness the question ruled out by the court. It was neither leading, suggestive nor improper as to form- On an important matter of this character, he had the right to call upon the witness to state what was actually said, rather than leave the conclusion of the witness to stand as the evidence in the case.

As the cause will have to be re-tried, it is not necessary to consider this question further.

III. The Attorney General, in his brief, has called our attention to the erroneous judgment entered in this ease. Defendant was charged with statutory rape, and according to the judgment was found guilty ^ seduction. Section 4478, Revised Statutes 1909, defines seduction under promise of marriage, but defendant was not charged in the information with any such offense. This would necessitate a reversal of the case in order that a proper judgment might be entered (State v. Duff, 253 Mo. l. c. 423), but as, the case is being reversed and remanded for other reasons, we simply call attention to above, in order that a proper judgment may be entered, should the defendant be found guilty on a re-trial of the case.

IV. On account of errors heretofore mentioned, the case is reversed and remanded.

White and Mosley, GG., concur.

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

All of the judges concur.