text:
    OVERLAND AUTO COMPANY v. C. F. WINTERS et al.; W. B. STRANG, Appellant.
    Division Two,
    March 17, 1919.
    1. NEGOTIABLE NOTE: Signature on Back. Under the Negotiable Instrument Law (Sec. 10033, nR. S. 1909) a person who places his name upon the hack of a negotiable note is deemed to be an in-dorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.
    2. -: -: Parol Evidence. And the words of the statute “unless he clearly indicates by appropriate words his intention to be bound in some other capacity’’ mean words written on the instrument itself, and hence the legal effect of a blank in-dorsement cannot be changed or varied by parol evidence or from any other source.
    3. -:-: Pleading. If the note sued on is set out in full in the petition and shows that the name of one of the defendants appears on the back thereof, it shows him to be an indorser and to be sued as such, and this setting forth of the note .corrects any misrecitation in a prior paragraph of the petition that said defendant was a co-maker.
    4. -: Indorser: Notice. Unless an indorser comes within the exceptions mentioned in the statute (Secs. 10050 and 10085; R. S. 1909), notice of dishonor by non-payment or presentment for payment must be made, or he -will be discharged.
    5. -: -: -: Exception: Party Accommodated. If the mdorser of a negotiable note is the party accommodated by making the instrument, he is not entitled to notice as provided-by Section 10085, nor is it necessary under Section 10050 to show presentment unless he had no reason, to expect the note.would be paid when presented. But “the party accommodated” is the one for whose convenience the paper was made, and that usually means the maker' or drawer, and not the indorser.
    6. -: -: Party Accommodated: Definition. Section 10050 says that “presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for -his accommodation” and Section 10085 says that .“notice of dishonor is not required to be given to an indorser where the instrument was made or accepted for his accommodation.” Held, that the word “accommodation” means a convenience, favor or benefit, or an arrangement or engagement made as a favor to another, not upon a consideration received, and “the party accommodated” is the one for whose convenience the paper is made. The accommodation party is the one who signs the note for the purpose of “lending his name to some other person,” and the other person is necessarily the accommodated party.
    Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
    REVERSED.

      Bowersock & Fizzell for appellant.
    (1) The usual requirements of presentment’ and notice are limited in the case of an accommodated in-dorser by See. 10050 and 10085, R. S. 1909. If, therefore, Winters made the note in question for Strang’s accommodation, Strang, an accommodated indorser, would not he entitled to have the note presented to Winters for payment, if he had reason to expect that the note would not have been paid if presented, and he would not be -entitled to notice of dishonor. Strang was not an accommodated indorser, but occupied the position of an ordinary indorser entitled to the rights of presentment and notice. There is not in the evidence the slightest ground for saying that Winters made the note in question for Strang’s accommodation. The matter of accommodation is carefully dealt with by the Negotiable Instruments Act. Sec. 10000, E. S. 1909. Can it possibly be said that Winters signed this note “without receiving value therefor and for the purpose of lending his name to some other person,” i. e., Strang? The testimony of Dougherty, the payee, is directly to the contrary. Dougherty did not desire Winters’ name on the note in order to make the paper good. He did want Strang’s name on the instrument for that very reason. Winters did not sign as an accommodation maker for Strang, and Strang was not an accommodated indorser. Both Winters and Strang signed the note because they were interested in the deal, but neither signed “without receiving value therefor, and for the purpose of lending his name” to the other. The evidence not only fails to show that Strang was an accommodated indorser, but it is inconsistent wi,th any such showing. Dougherty testifies-with-.particularity that he sold the car to Winters and Strang and received the note in part payment. If' that is a fact, then Strang was not an accommodated party, and evidence that he was would contradict the only testimony introduced by plaintiff on the trial.

      Jas. C. Rieger for respondent.
    (1) The Negotiable Instrument Act excuses both presentment and notice where the indorser is a primary obligor; this was the rule of the Law Merchant, under which law proof of the fact constituting the excuse could be made aliunde the note; the statute having adopted the rule of the law merchant as to the excuse will, in the absence of an expression of a contrary intention, be presumed to have adopted along with the rule the right to make the proof aliunde the note. Story on Promissory Notes (7 Ed.), sec. 268; Edwards on Bills, p. 638; Daniels on Neg. Inst. (6 Ed.), sec. 1085; Randolph on Com. Paper, sec. 1354; Blanderman v.' Price, 50 N. J. L. 296; Donnell v. Lewis County Savings .Bank, 80 Mo. 165; Webster v. Mitchell, 22 Fed. 869; First Natl. Bank v. Ryerson, 23 Iowa, 508; Pulton v. Maccracken, 18 Md. 528; Shriner v. Keller, 25 Pa. St. 61; American Natl. Bank v. Junk Bros., 94 Tenn. 624. The. fact excusing presentment and protest could he shown aliunde the note; it was not necessary for the fact to appear upon the. note. Churchill v. Grocer Co. 164 S. W. (Ark.), 283; Sweetser v. Jordan, 216 Mass. 350; Donnell v. Lewis County Savings Bank, 80 Mo. 165; Webster v. Mitchell, 22 Fed. 869. This statute clearly shows that it contemplated an indorser may be accommodated by the maker as well as accommodating the maker, and it adopts the rule of the Law Merchant excusing presentment and notice where the indorser is himself the accommodated party. Now, in adopting this rule of law, the Legislature also adopted the rule of evidence of the Law Merchant. This uniform Negotiable Instrument Act permits proof outside of the instrument to show the existence of the fact on account of which the statute makes it unnecessary to make presentment and give notice. Such proof' does not show that the indorser was a maker. It simply shows that though indorser and not maker, the note was for his .accommodation. This does not change or alter the note in any particular. It simply shows what kind of an indorser he is. Bank v. Bickel, 143 Ky. 754; In re Alldred’s Estate, 229 Pa. St. 627; Baumeister v. Kuntz, 53 Fla. 340; Hardwick v. Hardwick, 192 N. Y. 499; 19 L. R. A. (N. S.) 136 and note; Cox v. Henry, 184 S. W. 495; Rodgers v. Slavens, 101 Kans. 4; State Bank v. Pangest, 165 N. W. (Minn.) 479, and Lehigh Trust Co. v. Strause, 258 Pa. St. 382; Morgan v. Thompson, 72 N. J. L. 244. (2) The case is still stronger where the maker and indorser are partners and execute the note in the partnership business. 2 Daniels on Neg. Inst. (6 Ed.), sec. 1086; Harwood v. Jarvis, 15 Sneed, 375; Story on Bills (Bennett’s Ed.), 313 (a); Rhett v. Poe, 2 How. 457; Hays v. Citizens Sav. Bank, 101 Ky. 201. Rhett v. Poe, 2 How. (U. S.) 457, 483. (3) The evidence proved that the note was made for the accommodation of Strang. The evidence clearly proved that Winters & Strang together bought the car for their joint nse in their joint’ business, and gave the note in part payment for the car. This made the note for Strang’s accommodation as much as it was for the accommodation of Winters. It was Strang’s debt as much as it was the debt of Winters. It was a partnership transaction. This was the view taken of the facts in the court’s former opinion, and is the correct view. (4) No presentment is required where the indorser and maker are both primary obligors. This appears from the authorities hereinbefore cited. This is expressly declared in the act (R. S. 1909, sec. 10040). This was the rule of the Law Merchant, and this rule has been adopted by the statute.
   WHITE, C.

This suit is on a promissory note. The judgment in the circuit court of Jackson County was for the plaintiff; the case was appealed to the Kansas City Court of Appeals, where the judgment of •the circuit court was reversed in a majority opinion written by Judge Trimble; Judge Ellisox dissented and caused the case to be certified to this court for final determination.

We cannot do better than to adopt the statement of-the facts and in the main the exposition of -the law by the majority opinion of the Kansas City Court of Appeals :

“Plaintiff, as assignee for value before maturity of a negotiable promissory note, brought suit thereon against C. F. Winters and W. B. Strang. While the petition alleged that ‘defendants by their promissory note herewith filed, dated May 1, 1911, for value received, promised to pay,’, etc., yet it also set out the note on the face of the petition in words and figures as follows:
“$460.00 . Kansas City, Mo., May 1, 1911.
“ ‘Ninety days after date we promise to pay to the order of H. A. Dougherty, four hundred sixty and no-100 dollars, at Kansis City, Mo. Value received with interest at eight per cent, per annum.
C. P. WINTERS.
“ ‘¥. B. Strang (on hack)..’ ”
“The petition then alleged the assignment of the note to plaintiff before maturity,- that $50 had been paid thereon February 23, 1912; and that the remainder was due and unpaid, for which judgment was asked. Defendant Winters filed an answer admitting the execution of the note, but denied that there was any consideration therefor between him and the plaintiff. Plaintiff filed a reply to this answer in which the plea of no consideration was denied. Defendant Strang filed a separate answer in which. he denied, under oath, the execution of the note sued on, and also denied generally all the allegations of the petition.
“At the trial a jury was waived. The note was introduced showing Winters’ signature at the bottom, in the usual place for the payor’s name, and the name of W. B. Strang on the back. This was admitted to be Mr. Strang’s signature. The plaintiff then introduced Dougherty, the payee of the note, who testified, without objection from either defendant, that the note was given under the following circumstances: Dough-erty was agent for the Overland Auto Company and was selling automobiles for said company. Winters came to him and said he and Mr. Strang wanted to buy an automobile for use in the land business of Overland Park, and he asked Dougherty if he would take a note for part payment of the machine. Dougherty replied that he would look up the matter and let him know. Dougherty further testified that his company would not allow him to take notes .directly to it in payment of machines, but, owing to Strang’s financial standing, he concluded to take the note himself and give his personal check to the company for that amount. Dougherty then notified Winters that they could buy a machine in the way they proposed if he had one that suited them. Winters and Strang then came to Dougherty’s place of business, where Dougherty told the latter of his decision to accept the note and pay the cash therefor to the company himself in view of Strang’s standing. Strang and Winters then picked out a car, and Dougherty drove it about for them, demonstrating it and otherwise going through the preliminaries necessary to make a sale. Strang at first objected to the color of the car, saying he wanted a gray car, while this was blue. But he finally decided to take it, saying, ‘We will take this one.’ Thereupon Dougherty drew up the note and handed it to them. There were some alterations to be made in the car, so that it was not ready for delivery until the next day. When it was ready, the money due on the car was paid, and the note, signed as above shown, was delivered, and the car turned over to defendants. No understanding was had between Dougherty and Strang as to how the note should be signed, that is, nothing was said about it, though Dougherty wrote the note ‘We promise to pay,’ etc.; but when it was delivered no objection was made to its being signed the way it was.
“The petition did not allege that notice of dishonor was given to Strang, nor did it allege any facts to show that, as an indorser, he was not entitled to notice; and, unless the evidence outlined above presents facts which' relieve the necessity of notice, no showing of the kind was made.
“At the close of plaintiff’s evidence, counsel for Strang offered a demurrer in his behalf, saying as it was presented:
“ ‘We ask a finding in the nature of a demurrer on the part of defendant Strang, on the ground that he is an indorser on the note, and there is no- proof of presentation to the maker and notice to the indorser.’
“The court overruled the demurrer, and the defendants introduced no testimony. Whereupon the court found for plaintiff and rendered judgment against both defendants for the amount due on said note. The defendant Strang alone appealed.
“The principles by which the question of defendant Strang’s liability is to be determined vary according to the interpretation placed upon the petition. If that pleading be considered as charging both defendants with liability as makers of the note, then the question is:' Can parol testimony be permitted to change the written instrument sued on, by showing that Strang is not an indorser as the note says he is, but is in reality a co-maker with Winters? Before the enactment of the Negotiable Instruments Law (approved April 10, 1905, Laws 1905, p. 243, and now forming Chapter 86, Revised Statutes 1909), the rule in this State was that:
“ ‘One who'writes his name on the back of a note of which he is neither the payee nor indorser, becomes prima-facie liable as co-maker and will be held to be such in the absence of extrinsic evidence that it was the contract or understanding of the parties at the time he so indorsed it that he should be liable only as indorser. ’
“See First National Bank v. Guardian Trust Co., 187 Mo. 494, l. c. 518, 70 L. R. A. 79.
“But this rule is changed by Section 63 of the Negotiable Instruments Act (now Sec. 10033, R. S. 1909), which reads as follows:
“'A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.’
“And said rule is also changed by Section 64 of said act (now Sec. 10034, R. S. 1909), which reads as follows:
“ ‘Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser,’ etc.
“See Walker v. Dunham, 135 Mo. App. 396; Thorpe v. White, 188 Mass. 333, l. c. 334; Toole v. Crafts, 193 Mass. 110, 118 Am. St. 455; Gibbs v. Guaraglia, 75 N. J. L. 168; Far Rockaway Bank v. Norton, 186 N. Y. 484; In re Alldred’s Estate, 229 Pa. 627.
“The clause in Section 63 of said act, ‘unless he clearly indicates by appropriate words his intention to be bound in some other capacity,’ undoubtedly means words written upon the instrument itself, and hence this is a statutory command that the legal effect of a blank endorsement cannot be changed or varied by evidence from another source. [Porter v. Moles, 151 Iowa, 279; Neosho Milling Co. v. Farmers’ Co-operative Co., 130 La. 950; Deahy v. Choquet, 28 R. I. 338, 14 L. R. A. (N. S.) 847; Baumeister v. Kuntz, 53 Fla. 340; Rockfield v. First Nat. Bank, 77 Ohio St. 311, 14 L. R. A. (N. S.) 842; First National Bank v. Bickel, 143 Ky. 754.] This last-named case (143 Ky. l. c. 757, 137 S. W. l. c. 791) says:
“ ‘The purpose of the statute is to exclude parol evidence, and to make the written instrument control the rights of the parties. The statute fixing the legal effect of the instrument, parol evidence may not be received to give it a different effect.’
“So that if the petition sued Strang as a co-maker with Winters,. plaintiff cannot recover, even though there was no objection to the evidence showing him to be such, since the statute says what legal effect shall be given to such "an instrument and the court is not at liberty to give, it any other effect.
“But the petition does not charge Stiang as comaker. The note is set out in full on the face of the petition, and it shows Winters to be maker and Strang to be indorser, since it shows Strang’s name appears on the back thereof. This fixes the capacity in which Strang is sued as that of indorser and corrects any misrecitation in the prior paragraphs of the petition, that he was a co-maker. [Burroughs v. Wilson, 59 Ind. 536.] Moreover, the record clearly shows that defendant Strang, in presenting his demurrer to the evidence, recognized that the petition sued him ‘as an indorser on the note.’ Hence there ought to he no question hut that the case must he decided upon the theory that Strang is sued as an indorser.
“Taking up the question of Strang’s liability on this theory, what is the result? Section 89 of said act (now Sec. 10059, R. S. 1909), provides that:
“ ‘Except as herein otherwise provided when a negotiable instrument has been dishonored by . . . nonpayment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or in-dorser to whom such notice is not given is discharged.’
“So that, unless Strang comes within the exceptions otherwise provided in the act, he is discharged from liability on the note-, since no notice of dishonor was given him, nor was presentment for payment made. The exceptions contained in the act are found in Sections 80 and 115 (now Secs. 10050 and 10085, R. S. 1909), the first of which says:
“ ‘Presentment for payment is' not required in order to charge an indorser where the instrument was made or accepted for his accommodation and he has no reason to expect that the instrument will be paid if presented. ’
“And the second of which reads:
“ ‘Notice of dishonor is not required to be given to an indorser in either of the following cases: . . . (2) Where the indorser is the person to whom the instrument is presented for payment; (3)- where the instrument was made or accepted for his accommodation. ’
“It will be observed that the petition alleges no facts showing that Strang' comes within any of these exceptions. So far as the petition goes, Strang is sued simply as an indorser, and not as an accommodation, or as an accommodated, indorser. It has usually been held that, in a suit against an indorser, presentment and notice must he alleged, or the excuse for the absence thereof must he stated. [8 Cyc. 133; Jaccard v. Anderson, 32 Mo. 188.] However, if presentment, demand and notice are alleged, it seems a waiver thereof may he shown. [Faulkner v. Faulkner, 73 Mo. 327.] But the record does not show any objection to or assault made upon the petition, and we will not decide whether, under such circumstances, it is necessary to plead facts showing that the indorser comes within the exceptions noted by the statute, in which notice of presentment and nonpayment is dispensed with. Because if the facts shown by the evidence do not bring Strang within the exceptions, then he cannot be held liable, regardless of the question whether the petition does or does not contain allegations as to his being an accommodation or accommodated indorser.
“Now the evidence does not show that Strang was either an accommodation or an accommodated in-dorser. Examining that evidence to see what it contains, without regard to whether it can be considered or not, we see that the best that can he said of it is that the car was possibly purchased for both Winters and Strang. But, even if this be true, there is nothing to show that Strang agreed to contract in any other way than as indorser. Dougherty admits that nothing .was said about the capacity in which Strang agréed to he bound. So that, so far as the evidence shows, he contracted only as indorser, and plaintiff has sued him only as such, and neither the petition nor - the evidence shows that he contracted in any capacity other than as an ordinary indorser. If the evidence shows anything beyond this, it shows that he was in reality one of the purchasers of the car. If he was, then he should have signed the note as maker, but the parties chose to put the contract in writing showing his liability to he that of an indorser, and the Negotiable Instruments Laws says that, when they do that, his liability shall he that of an indorser, and parol evidence will not he allowed to change it. In other words, whether the evidence, showing him to he a maker of the note he objected to or not, the court must determine Strang’s liability according to the contract as written, since the law says that shall determine the matter.”

The opinion then holds that there was no evidence to show the defendant was brought within the exceptions mentioned in the Negotiable Instrument Act so as to dispense with notice to him of dishonor.

The majority opinion and dissenting opinion agree that one who signs as an indorser may not by parol evidence be shown* to have signed in any other capacity, but under Sections 10050 and 10085 parol' evidence may be introduced to show in what character he indorses, whether he is an accommodation party or the party accommodated. If he is the party accommodated by making the instrument, he is not entitled to notice as provided in Section 10085; likewise it is not necessary to show presentment under Section 10050 unless the in-dorser had no reason to expect the instrument would be paid when presented.

” The respondent contends that defendant is the accommodated party and the dissenting opinion of Judge Ellison so holds, in which case it would be necessary to remand the case so that evidence might be introduced for the purpose of showing whether or not be had reason to expect the instrument would be paid' if presented. The difference between the majority opinion and the dissenting opinion arises in regard to defendant’s character with respect to the note. It is á difference depending upon the definition of the expression “for his accommodation” as it is used in Sections 10050 and 10085. Respondent bases its position on the' proposition that the defendant was the party accommodated by applying the ordinary definition of the term “accommodation.” The party accommodated is the one for whose convenience the paper is made. “Accomo-dation” is defined in Anderson’s Law Dictionary as “convenience, favor, benefit.” Respondent quotes the case of First National Bank v. Bickel, 143 Ky. 754, where an accommodated party within the meaning of Section 10050 and 10085 is defined thus: “The indor-ser for whose accommodation the instrument was made or accepted is one who receives value therefor.”

But Black’s Law Dictionary defines “accommodation” in these words: “An arrangement or engagement made as a favor to another, not upon a consideration received.”

The holding generally of the courts, in considering paper of this character, is not to accept the ordinary definition of accommodation, hut to give it a meaning such as the one given by Black. In a sense, every one who makes a note on receiving a consideration for it is the party accommodated: But the expression “accommodated party” the “party for whose accommodation the paper is made” is nearly always used by the courts in connection with accommodation paper. There is no accommodated party without his correlative, an accommodation party. The Negotiable Instrument Act does not define accommodation paper, but does define accommodation party in Section 1000Ü, Revised Statutes 1909, as one who signs an instrument for the purpose of “lending his name to some other person.” The “other person” necessarily, is the accommodated party. In the case of Rea v. McDonald, 68 Minn. 187, l. c. 191, the court gives this definition: “ ‘Accommodation paper’ is defined as such as is made, accepted, or indorsed by one party for the benefit of another without consideration. It represents and is a loan of credit to the party accommodated.’’

The case of Thom v. Kibbee, 62 N. J. L. 753, l. c. 754, has this: “The accommodated party, in a legal sense is the person to whom the credit of the accommodating party is loaned, not a third person who may receive an advantage by the loan of the credit.”

The Supreme Court of Hawaii considered the subject in the case of Dillingham v. Scott, 19 Ha. 421, l. c. 426, and said: “It is evident that a person may be accommodated within a broad use of that term without being the accommodated partjr in the legal sense. The accommodated party has been defined as the one to whom the credit is loaned.”

In the case of Mosser v. Criswell, 150 Pa. St. 409, the Supreme Court of Pennsylvania thus comments upon a transaction in which this question was involved:

“A new note made by defendant was in a certain popular sense an accommodation, that is a convenience, to the plaintiff, just as it is a convenience to a creditor who wants his money but cannot get it from his debtor in cash, to get payment by a note on which he can raise the money temporarily, though at the risk of an indorsement which he may ultimately have to pay. But this is very far from what the law means by accommodation paper. ’ ’

These definitions are in accord with the general trend of authority and show that the courts assign a technical meaning to the word ‘ accommodation ’ ’ The “party accommodated” is inseparable from accommodation paper, and implies an accommodation party.

The evidence offered by the plaintiff shows that the defendant was not in that sense an accommodated party; he was not one for whom anybody gratuitously executed .the note. He was accommodated in the sense that he was benefitted by the transaction, but he was not accommodated in the sense that there was a lending of credit to him. He was an ordinary indorser and therefore entitled to notice of dishonor before he could be held, and no notice was given.

The judgment of the circuit court is reversed.

Roy, C., absent.

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

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C.:

license: Public Domain

text:
    ELSBERRY DRAINAGE DISTRICT v. J. H. MEYER et al., Appellants.
    Division Two,
    March 17, 1919.
    APPEAL: Drainage District. No appeal lies írom a judgment of the circuit court extending the boundary lines of a drainage district, in pursuance to a petition brought under Section 40 of the Circuit Court Drainage District Act of 1913, Laws 1913, p. 254.
    Appeal from Lincoln Circuit Court. — Hon. Edgar B. Woolf oik, Jndge.
    Appeal dismissed.

      Creech & Penn and Sutton & Huston for appellants.
    (1) The Elsberry Drainage District was not authorized and had no power to extend its boundaries so as to include the lands of appellants, when the majority of the landowners and a majority of the acreage within the extended boundaries was opposed and objected to such extension. Laws 1913, Sec. 2, p. 233; Elsberry Drainage District v. Harris, 267 Mo. 139. (2) The notice of the filing of the original petition for the extension of the boundaries and change of plans of the drainage district was wholly insufficient to confer jurisdiction of the subject-matter upon the court or to authorize the court to decree the extension of the boundaries or change of plans of the drainage district for the reason that the notice was not directed to the owners of lands within the drainage district as well as to the owners of lands adjacent to the district. Eaton v. County of St. Charles, 76' Mo. 493; Elsberry Drainage District v. Harris, 267 Mo. 148; Nishnabotna Drainage District v. Campbell, 154 Mo. 157; 7 Ruling Case Law, sec. 57, p. 1029; Charles y. White, 214 Mo. 206; State ex inf. Rosenberger ,v. Bellflower, 129 Mo. App. 146; St. Louis v. Grlascow, 254 Mo. 271; In re Bledso Hill, 200 Mo. 642; Yolo County Reclamation District v. Burger, 122 Cal. 442; People v. Reclamation District, 121 Cal. 522; Craig v. People, 188 Ill. 416; Sanner v. Union Drainage District, 157 Ill. 575; Payson v. People, 175 Ill. 267; People v. Cooper, 139 Ill. 461; Mason Special Drainage District v. Griffin, 134 Ill. 330.

      O. H. Avery, Wm. A. Dudley and D. E. Killam for respondent.
    (1) The appeal was improvidently allowed in this case and the same should he now, here, dismissed. Laws 1913, p. 232', sec. 16; In Re Mississippi & Pox River Drainage District v.. Ackley, 270 Mo. 157; Tie and Timber Co. v. Drainage District, 226 Mo. 444; Drainage District v. Railroad, 216 Mo. 709; Birmingham Drainage District v. Railroads, 202 S. W. 404. (2) The question of the • sufficiency of the notice to landowners is not before the court now. Drainage District No. 4 v. Railroad, 216 Mo. 709; Tie and Timber Co. v. Drainage Co., 22'6' Mo. 420; Drainage District v. Ackley, 270 Mo. 157; Birmingham Drainage District v. Railroad, 202 S. W. 404. Laws 1913, p. 241, sec. 16, and p. 254, sec. 40; State' ex rel. v. "Weithaupt, 254 Mo. 329. The notice is sufficient to give the court jurisdiction over the subject-matter of the suit. Laws 1913, Secs. 40, 62' and 63; Kansas City v. Woerishoefer, 249 Mo. 21. Appellants waived objections to the jurisdiction over themselves.
   WHITE, C.:

The appeal in this case is from an order of the circuit court of Lincoln County extending the boundaries of the Elsberry Drainage District and changing the plan of reclamation in said district.

The Elsberry Drainage District had been organized and in November, 1913, it filed in the circuit court of Lincoln County its petition, under Section 40 of the Act of 1913 (Laws 1913, p. 254), praying for a change of plan of reclamation and extending its boundaries. Objection to tbe petition was filed by appellants herein who were owners of tbe land in tbe territory songbt to be annexed. Evidence was beard and tbe prayer of tbe petition sustained, judgment entered accordingly, and commissioners appointed by tbe court to appraise tbe property to be taken and assess benefits and damages and estimate tbe cost of improvements occasioned by tbe change of plan and tbe extension of boundaries, and to make due report to tbe court. Tbe objectors, appellants here, thereupon appealed from that judgment.

All of this is shown by tbe abstract of tbe record filed by tbe appellants. The respondents have filed’an additional abstract of tbe record showing that tbe commissioners appointed by tbe court afterwards filed a report assessing tbe benefits and damages to tbe parties concerned; that tbe appellants filed objections and exceptions to tbe report of commissioners, took change of venue from Judge W. B. Woolfolk, and Judge Barnett was then called in to try tbe case. He found that all tbe objectors were in court, beard tbe evidence, overruled all tbe objections and exceptions, and found that tbe commissioners’ report of assessments and benefits against each of the tracts to be included was equitable and just. Each of the objectors who had appeared and filed objections, excepting one, agreed and consented that tbe assessments against tbe said tracts of land for tbe benefits were equitable and just. Tbe court then entered an order and judgment against each tract, for benefits, in accordance with tbe amended report of tbe commissioners. This additional abstract of tbe record also shows that tbe amounts awarded as damages was paid by tbe district and received by a majority, if not all, of tbe objectors.

Respondents filed herein a motion to dismiss tbe appeal on tbe ground that tbe judgment appealed from is not a final decree and not a judgment from which an appeal would lie to this court. Appellants filed a motion to strike out respondents’ additional abstract of record because tbe matter contained therein is no part of tbe record in tbe case appealed and'tbe subject is rmt germane to tbe record.

Tbe Act under which tbis proceeding was brought, Section 16, p. 241, Laws 1913, has tbe following provision, p. 242:

“Any person may appeal from tbe judgment of tbe court and upon such appeal there may be determined either or both of'the following questions: “First, whether just compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property pre-judicially affected by tbe improvements.”

Tbis provision appears in tbe conclusion of section 16, wbicb provides for tbe filing of exceptions to commissioners’ reports and tbe bearing and judgment thereon.

Tbis court, after an exhaustive review of tbe authorities construing that provision and tbe amendments of it, as they have appeared in tbe statutes from time to time, held that an appeal will not lie from an order incorporating a drainage district so as to enable tbis court to review alleged error committed in such proceeding. [In re Drainage District, Buschling v. Ackley, 270 Mo. 157.] An examination of that case and tbe authorities cited will show tbe reason for that interpretation of tbe statute quoted, wbicb appears in that part of tbe Drainage Act relating to tbe formation of a district. Tbis proceeding is brought, under Section 40 of tbe act, to extend boundaries and change tbe plan of reclamation of tbe district. Section 40 provides for tbe appointment and report of commissioners and tbe assessment of benefits and damages in tbe same manner as in tbe formation of tbe district under Sections 12 and 14 of tbe act, and proceeds (p. 255):

“The case shall be proceeded with in tbe same manner as is now provided for in tbe previous sections of tbis act for the organization of drainage districts.”

That applies to the provision relating to appeals. Accordingly, the appeal in this case is from a judgment from which no appeal lies.

The appeal is dismissed.

PEE CURIAM: — The foregoing opinion by White, C„ is adopted as the opinion of the court.

All the judges concur.


author: FARIS, J.

text:
    KATHERINE HENSON v. KANSAS CITY, Appellant.
    Division Two,
    March 17, 1919.
    1. APPEAL: Affidavits Dehors The Record: Motion to Strike Out Briefs. Affidavits, purporting to set forth the physical condition of plaintiff in a personal injury case, made at a date long subsequent to the trial and contradictory of the evidence upon which the verdict was rendered, filed in the appellate court, will be Stricken from the files. But appellant’s brief, if the objectionable matter contained in the affidavits has not been interpolated in .any spirit other than that of bringing about what, counsel conceive justice demands, will not be stricken out.
    2. NEGLIGENCE: Defective Plan: Exception. A city may not be liable for personal injuries directly caused by a defective plan for excavating a street, but may be liable for injuries due to a defective or negligent execution of the plan. But the rule has its limitations, among which is this: where the plan adopted by the city is so manifestly dangerous and unsafe, or leaves the street in a condition so obviously dangerous and unsafe, that a court can say so as a matter of law, then the city is liable for an injury produced by such patently dangerous plan as its proximate cause.
    3. — :-: -: Maintaining Dangerous Condition. But the rule of non-liability of the city for a personal injury directly caused by a ' defective plan has no application where no one was injured as a result of the execution of the adopted plan for grading a street by so excavating it as to leave a perpendicular wall of clay ten feet high along the building line, and where the negligence consisted in leaving this perpendicular bank overhanging the pathway used by pedestrians, for six weeks or two months, without bracing it or giving notice to the public of its dangerous character, after it had begun to cave at different places.
    4. -: Fire and Coasting in Street: Unlawful Act. The city in excavating a street left perpendicular clay walls along the building line ten feet high or more. The night was cold and plaintiff had gone to a' point in the excavation to chaperon her sister, who, with other young persons, had resorted to the t excavation to coast "on sleds. Some persons had made a fire on the sidewalk space near the wall, and plaintiff, having assisted her sister with a sled, stepped back on the space near the fire, and almost instantly a section of the clay wall caved and fell, striking her, causing the injuries for which she sues the city. Held, that plaintiff, in standing by the fire built by others in violation of the city ordinance, was not doing an unlawful act, but she was lawfully upon the street and at the time she was hurt was not engaged in an unlawful act.
    5. . — ¡-: Patent Danger: Question for Jury. Where there is substantial evidence that plaintiff did not have knowledge of the dangerous situation, the. question of whether the danger was apparent to her, or whether she saw or under the circumstances ought to have seen the overhanging danger, is one for the jury.
    6. -: Evidence: Simulated Injuries. It is improper for plaintiff’s witnesses, expert or lay, to testify that her tears while on the witness stand and her symptoms of injuries in the court room are not feigned or simulated; and where the verdict seems large, such testimony is error. One witness may not pass upon the credibility of another.
    7. -: Refused Instruction. Appellant cannot complain that the court refused its instruction if the court of its own motion gave one that presented the same identical defense.
    8. -: —:—: Ordinary Care. Where the defense is contributory negligence and there is some evidence to sustain the plea, it is error to refuse an instruction telling the jury that if plaintiff was not exercising ordinary care under the circumstances and such lack of care directly contributed to her injury she cannot recover.
    9. INSTRUCTION: Ambiguous. An instruction should not be ambiguous upon a vital contested issue.
    10.VERDICT: Excessive: $20000. A verdict of $20,000 for a young unmarried woman, whose leg was broken both above and below the knee and is permanently shortened an inch and a half and who received other , nervous injuries permanent in character, was excessive.

      Appeal from Jackson Circuit Court. — lion. William 0. Thomas, Judge.
    EeVERSED AND REMANDED.

      E. M. Harber and Francis M. Hayward for appellant.
    (1) The demurrer to the evidence should have been sustained, (a) Because, if the fall of the bank of clay was due to its being left perpendicular and not to the fire built near it, the fall was due to the plan of construction adopted by the city and for the adoption of the plan the city was not liable. Ely v. St. Louis, 181 Mo. 729; Lansing v. Toolan, 37 Mich. 152; Urquhart v. Ogdensburg, 91 N. T. 67; McIntyre v. City of Pittsburg, 238 Pa. St. 524; Foster v. St. Louis, 71 Mo. 157; Walters v. Omaha, 76 Neb. 865; Hays v. City of Columbia, 159 Mo. App. 431. (b) Because if the city was negligent in leaving the bank of clay ten feet high in an outlying part of the city, the defendant was a grown womas nineteen years of age and had precisely the same opportunity to know of its defective condition that the city had, and was therefore guilty of contributory negligence as a matter of law in standing close to such a bank when it fell. Cohn v. City of Kansas, 108 Mo. 393; Wheat v. St. Louis, 179 Mo. 578; Woodson v. Met. St. Ey. Co., 224 Mo. 685; Craine v. Met. St. Ey. Co., 246 Mo. 393; Dmrlpn v. Troy, 61 Barb. (N. Y.) 437. (c) Because respondent was not in a lawful use of the street when injured. Eastburn v. United States Express Co., 225 Pa. St. 33; Eeusch v. Licking Polling Mill Co., 118 Ky. 369; Williams v. St. Joseph, 116' Mo. App. 299. . (2) The court erred in the admission of testimony offered by respondent and objected to by appellant. Halliman v. Cabanne, 43 Mo. 568; Hunt v. Gras Co., 8 Allen (Mass.), 169. (3) The court erred in refusing Instruction 2 asked by appellant. Coffey v. Carthage, 186 Mo. 573. (4) The court erred in refusing Instruction 3 asked by appellant. Miller v. Kansas City, 157 Mo. App. 533; Pyburn v. Kansas City, 166 Mo. App. 150. (5) The verdict of the jury was so excessive and unjust that it shows on its face that it was the result of bias and prejudice on the part of the jury against appellant. Lessenden v. Mo. Pac. Ry. Co., 238' Mo. 247; Yost v. Railroad, 245 Mo. 219; Partello v. Railroad, 240 Mo. 122; Applegate v. Railroad, 252 Mo. 173; Hinkle v. O. B. & Q. Ry. Co., 199 S. W. 227.

      Piatt & Marks for respondent.
    (1) The doctrine of non-liability for the exercise of a governmental function does not apply, because plaintiff’s injuries were not occasioned by an unwise plan of legislation or a defect thereof, but because a large piece of unsupported and unprotected earth abutting upon the sidewalk fell upon her while she was upon the sidewalk of an open public street. It was no part of the legislative plan for grading the street that a three-ton mass of earth should fall upon plaintiff or other pe-destrains on the street and injure her, or them; nor can the wildest stretch of imagination make it such. Rupen-thal v. St. Louis, 190 Mo. 225; Straub v. St. Louis, 175 Mo. 416; Campbell v. Chillicothe, 239 Mo. 455, 1. c. 461; Shippey v. Kansas City, 254 Mo. 23; Wiggin v. St. Louis, 135 Mo. 558. (2) Respondent did not have the same opportunity to know the defective condition that the city had. The city has seyeral hundred miles of streets and hundreds of instances in which unsupported perpendicular walls of earth abutting upon streets ultimately crumble and fall. This court declares such happenings the result of natural law. Beck v. Brewing Co., 167 Mo. 1. c. 200. The city has an egineer-ing and scientific department especially skilled, informed and trained as to such matters. The respondent is not the possessor of such experience or information. The occurance was in the night time; the wall was barely discernible; the light made by the fire was between lier and the wall. Defects or dangers in the wall were not discernible; the boys standing against the wall saw none. Their first knowledge of it was when they felt it pushing out against them and they jumped. She had a right to assume that the city knew whether the wall of earth was dangerous and when it would fall, and whether it would fall into pieces of sufficient size to injure her. (3) Plaintiff, was not coasting when the injury was received nor is there a word of testimony in the record that she at any time that evening coasted; she was there acting as a chaperon .for her younger sister and her younger friends. The evidence discloses ■ that plaintiff had nothing whatever to do with either starting or maintaining the fire, nor was she warming by it. The coming of plaintiff to the fire was not an unlawful act within the ordinance. Appellant contends that Dr. Hamilton' was erroneously permitted to testify to a conclusion,, the question being, “Did you see any evidence of Miss Katherine feigning these tears?” and the answer being, “I couldn’t say that there was any evidence that she is feigning.” The question neither calls for a conclusion nor does the answer express one.
   FARIS, J.

Plaintiff sued defendant for personal injuries occurring to her, it is averred, from defendant’s negligence. On a trial had before a jury she had judgment for damages in the sum of $20,000, and therefrom defendant appealed in due and ancient form.

The salient facts are few and simple; while the details may to an extent be left for statement in connection with the discussion of the points urged for reversal. The outstanding facts run thus: Defendant, pursuant.to solemn ordinance, had by contract caused to be graded a street called 49th Street, where this street traverses an addition known as “Prospect Hill Addition.” This grading was completed in October, 1914, some six 'weeks or two months before plaintiff was injured, on December 14, 1914. In grading this street pursuant to the plans adopted and carried out by the defendant, a uniform cut was made the width of the whole street, including the sidewalk space, to the property line,- so that when the grading was done, there were left along the property line perpendicular hanks, or walls of earth or clay, from ten to twelve feet high. A wagonway twenty-six feet wide had been improved at the point of the injury on 49th Street, for vehicular traffic, though the sidewalks had not been made. Spaces on both sides of the street, called “sidewalk spaces” in the record and which were each 17feet wide, had been left. These sidewalk spaces were at the time of plaintiff’s injury being used by pedestrians living in the vicinage to go to and from their homes, to work, to the street-car lines, and to stores in the neighborhood, whereby a path was trodden out. Prior to the time of plaintiff’s injury a part of this perpendicular clay wall had caved off and fallen across the sidewalk space and across the path made by pedestrians and above mentioned, at a point thereon only -a few feet from the place whereat plaintiff was hurt.

Plaintiff, a young woman nineteen years of age, then working for a real estate concern in a minor clerical capacity at a salary of six dollars a week, had gone to a point on 49th Street between Prospect Avenue and Wabash Avenue to chaperon her sister, who with other young persons had resorted to this part of 49th Street to coast on sleds thereon. There was another party of young folks there also coasting. The night was cold— only three degrees above zero — and some of the latter party had made a fire on the sidewalk space for the purpose of warming. In the making of this fire plaintiff had no part. The size and' location of the fire were disputed questions, since the chief defense of the city upon the facts is that this fire thawed the frozen clay bank and caused it to fall.’ The evidence of plaintiff tends to prove that this fire was about a foot in diameter, and a foot or a foot and a half in- height; that it was from three to five feet distant from the perpendi-calar wall of the cut and of negligible intensity. The defendant’s evidence tends to show that it was from a foot to three feet and seven inches from the wall (the city’s measurements showed 3.6 feet, exactly) and that it was some two feet in height and twenty inches in diameter and' of such heat and intensity as to convert the clay of the wall which fell, into burnt clay of a brick-like hardness and consistency.

Plaintiff, just a few seconds before she was hurt, had been in the middle of the street with a sled for her young sister. After delivering this sled to the sister she stepped back on to the sidewalk space near the fire for the purpose of warming, or of observing her sister and the other young people while they were coasting. Almost instantly thereafter a frozen section of the clay wall caved and fell and struck plaintiff, hurling her to the ground and breaking her right leg in two places. The upper fracture was a comminuted fracture of the femur near the hip, and the lower consisted in fractures of both bones near the ankle. It is averred that the muscular tissues of both legs were seriously crushed and bruised, and the testimony tends to sustain this averment.

Plaintiff was confined in a hospital for some seven weeks as a result of the injuries sh.e sustained, and thereafter was confined to her bed at her home for some ten or eleven weeks. Her right deg was permanently shortened an inch and a half, and other conditions appeared which were nervous in character and which are averred to be incidents of shock and nerve injury and to be permanent. There was as stated some crushing, or mashing and bruising of the fibres of the muscles of both legs, which the evidence tends to prove has (at least till an operation shall correct it) permanently affected movements in certain ways of both of plaintiff’s legs and causes her and will continue to cause her to limp. Upon the question of whether the nervous condition was permanent the medical experts were dubitante. It was agreed-by tbe expert testimony, as we read it, that tbe shortening of tbe right leg would cause a permanent limp, which, however, might be largely taken care of by the adjustments in the bones of the pelvis, at the expense of some slight distortion of the spine in the adjustment process. On this single phase of injury to the right leg the medical expert for defendant said that “there ought not to be anything more than a little limp, possibly not that.”

Some further facts will be found set out in the course of the expression of our views upon the divers contentions of error urged.

I. We are met with a motion - by respondent to strike the brief of appellant from the files, for that it contains as exhibits thereto three certain affidavits purporting to set forth the physical status and condition of plaintiff, as of a date long subsequent to the trial and the taking of this appeal. This motion coming in too near the day of argument to allow time for careful consideration, was by us taken with the case. Meeting it therefore on the threshold of the case, we must needs dispose of it before reaching the merits.

It is so plain that we may not consider affidavits filed here in an action at law after the appeal is taken, when such affidavits contradict the solemn evidence upon which the verdict was rendered that neither authority nor exposition is necessary to holster up- .the assertion. Lately, in a case more flagrant by far than that made by the showing in the instant case, and one in which the extra-judicial showing of conditions subsequent to appeal were presented formally in a common law. proceeding and not ex parte as here, we refused to be bound thereby in the case appealed. [Callicotte v. Railroad, 274 Mo. 689, 204 S. W. 528.] We therefore refuse to consider the affidavits filed and. content ourselves with striking them from the files. But, we overrule the motion to strike the brief of defendant from the files, since there is nothing to indicate that the objectionable matter therein contained was interpolated in any other spirit than that of bringing about counsel’s conception of the doing of justice in the case. Counsel’s client ought not to be penalized on account of counsel’s making every effort consistent with honesty and a proper respect for the courts to protect their client’s interests and obviate what they may honestly deem to be a gross miscarriage of justice. That counsel may in doing so, and in an effort to prevent justice from becoming “a hissing and a by-word,” sometimes go out of the beaten paths which justice now treads, is not to their discredit.

Neither, on the other hand, are we saying that if we could consider these affidavits they show any fraudulent overreaching of the 'courts. They do not necessarily comport any such thing. They would merely— even if they be true — tend to show the ordinary errors in prophecies of future physical conditions, due to mistaken expert evidence and to the psychological phases of the situation presented.

II. Coming to the strenuously urged contention of defendant that plaintiff made out no case for the jury and that the demurrer of the city to the evidence ought to have been sustained, we meet a close and difficult question. As we understand defendant’s several contentions upon this point, they are (a) that the falling of the wall or bank of the cut or excavation was due to a defect in the plan of the work, and not to any negligent or defective execution of the work itself, which per contra was done precisely according to the plan; (b) that plaintiff in standing by a fire built by other persons in violation of the city ordinances, was doing an unlawful act and therefore cannot recover, and (c) that the danger of the clay bank’s falling being equally as apparent to plaintiff as it was to defendant, she was guilty of contributory negligence as a matter of law in assuming the position she was in when she was injured.

There is no doubt that tbe doctrine of a city's non-liability when tbe injury is directly caused by a defective plan, in contradistinction to a defective or negligent execution of that plan, exists in tbe law. Tbe books are fairly full of cases bolding this view. [Vide, Hays v. Columbia, 159 Mo. App. 431; Lansing v. Toolan, 37 Mich. 152; Davis v. Jackson, 61 Mich. 530; McIntyre v. Pittsburg, 238 Pa. St. 524; Urquhart v. Ogdensburg, 91 N. Y. 67; Hoyt v. Danbury, 69 Conn. 341; Watters v. Omaha, 76 Neb. 855; Foster v. St. Louis, 71 Mo. 157.] Nor is tbe doctrine bottomed on unstable or unsound legal foundations; for when tbe city bas, through its officers in good faith exercised its best judgment in devising a plan of doing a given work, this judgment ought not to be subjected to tbe incongruous and changeable rules of alleged safety arbitrarily devised by shrewd counsel to fit tbe actionable necessities of every casualty.

But tbe rule bas its limitations; and where tbe plan adopted by tbe city is so manifestly dangerous and unsafe, or leaves tbe street in so obviously a dangerous and unsafe condition that a court can so say as a matter of law, then tbe city is liable for an injury produced as tbe proximate cause of such patently dangerous plan. [Hinds v. Marshall, 22 Mo. App. 208; Gould v. Topeka, 32 Kan. 485; Teager v. Flemingsburg, 109 Ky. 746; Healy v. Chicago, 131 Ill. App. 183; Conlon v. St. Paul, 70 Minn. 216.] But we do not think this rule bas any application to tbe facts shown by this record. No one was hurt from tbe city’s following tbe mere plan of grading tbe street by so excavating it as to leave a perpendicular wall of clay ten feet, or more, in height. The negligence consisted in leaving this clay bank overhanging tbe pathway used by pedestrians, for some six weeks, or two months, without bracing it, or without in some wise giving notice to tbe public of its dangerous character. For, while as forecast above there is lodged in tbe city a discretion as to tbe time at which and tbe place through which it makes im-pro.vements, yet -when this discretion has been exercised and the street has been made, the duty of maintaining it in repair so that it will not become a menace to the public is not governmental, but ministerial. [Hines v. Lockport, 50 N. Y. 238; Twist v. Rochester, 165 N. Y. 619; Collins v. Council Bluffs, 32 Iowa, 324; Jones v. Henderson, 147 N. Y. 120; Circleville v. Sohn, 59 Ohio St. 285; Hand v. Brookline, 126 Mass. 324.] And an action will lie for injuries caused by dangerous defects in a street, which defects the city suffers to remain after reasonable notice of the existence thereof; although such defects developed from well-understood physical laws operating upon the conditions produced by t'he plans which the city adopted. Here, the perpendicular bank did not at once cave. It might indeed never have caved. But when it had been subjected to the mutations of the weather for some six weeks, it began to cave in other near and similar places and thus gave notice to the city of its dangerous conditions. Thereupon it became the duty of defendant city either to take steps to remedy the defect, or to advise those using the street of the existence of such defect, so that they might protect themselves against it.

III. Coming to the next urged reason of non-liability, we are likewise of the opinion that it is untenable under the facts in this record. Plaintiff had nothing to do with making the fire, none of the party whom she was chaperoning had anything to do with this violation of the ordinance. The fire had been made by others and she was standing near it for a few seconds' observing her sister and others coasting, when the bank fell and she was hurt. Cases called to our attention by learned counsel wherein the facts were that persons were hurt while unlawfully coasting upon streets by alleged obstructions in such streets are clearly not in point. If it be urged that her act in chaperoning these young people who were coasting at a place forbidden by ordinance made her as guilty as they were, or that she aided and abetted this violation of an ordinance by bringing a sled to her young sister, the obvious answer is that the coasting was not the proximate cause of her injury. Since plaintiff was lawfully upon the street and when hurt was not engaged in any unlawful act, the duty caeteris paribus was owed her by the city to make the street on which she stood reasonably safe for her use.

IV. Lastly, uponthis phase, it is urged that since plaintiff was sui juris, she could and should have seen this overhanging- bank and have realized its potential danger, which danger, it is urged, was just as apparent to her as it was to the defendant. The record. shows that plaintiff had never been along this street or sidewalk-space- since it was graded; that she had not seen the patent evidences of its recent caving at other near points, because she had at the instant before she was hurt approached this wall from the center of the street; that it was night and except for the fire in question, very dark, so that she saw only some five or six feet of the wall and this portion but dimly, and only by the light of this small fire.

On her evidence on this point, of which there was some corroboration, and some contradiction, it became a question of fact for the jury and not a question of law for the court, as to whether the danger was apparent to her, or whether she saw, or ought under the cir;-cumstances to have seen, the potential menace of the situation. We are, upon the whole, of the opinion that there was a case made for the jury, and that each of the defendant’s three contentions to the contrary should be disallowed.

V. In the course of the examination of Dr. Hamilton (who was a witness for plaintiff and who, as "plaintiff’s family physician, had attended her professionally and treated her for the injury in' controversy tere), he was asked, over defendant’s objection, this question: “Do you see any evidence of Miss Katherine’s (plaintiff’s) feigning these tears?” After some discussion on the point of the admissibility of this question, it was held by the trial court to be a proper one. "Whereupon, counsel repeated it to the witness, changing the verbiage' thereof slightly, thus: “Answer, what if any evidence you found of her feigning these tears?” The witness answered, “I could not say that there was any evidence that sheds feigning.”

It is difficult to ascertain from the record whether counsel for plaintiff was asking the above question with reference to plaintiff’s attitude upon the witness stand, or as to her condition while the witness was treating her, or as to her attitude while sitting in court and observing and taking part in the trial. And while the sequence with which the witnesses testified in the case would seem to exclude the first hypothesis, there are yet indicia in the record that the question had reference to the attitude of the witness while taking part in the trial. For counsel for defendant had before asked that the jury be discharged on account of the behavior of the plaintiff. Regardless of these hypotheses, the question invaded the jury’s province. There was a general denial in the case; the extent of plaintiff’s injuries and the question of their permanence ,vel non were sharply contested, and it is here and now most strenuously contended that the verdict herein is excessive. The evidence in the case, the demeanor of the witness on the stand and the question whether or not plaintiff was malingering and feigning as to the symptoms of her injuries were questions solely for the jury. Clearly, one witness may not pass upon the credibility of another witness. [Hunt v. Gas. Co., 8 Allen (Mass.) 169; Holliman v. Cabanne, 43 Mo. 568.] Neither may an expert witness give his opinion upon the existence or non-existence of the very matters and conditions which are vital issues in the case. [Deiner v. Sutermeister, 266 Mo. 505.] The question was improper, and the answer probably contributed largely to the swollen verdict in the case.

VI. Defendant asked, and now complains that the court refused the below instruction, to-wit:

“The court instructs the jury that although you may find from the evidence that plaintiff was injured at the time and place claimed by her, yet if you further find from the evidence that the bank of clay £ep up0I1 per had, before the accident been frozen and thereby rendered the north side of Forty-ninth Street, between Prospect and Wabash avenues, reasonably safe for travel, and that said bank was thawed' loose at the time of such accident by the building of a fire, the evening of the accident, and that it thereupon fell on plaintiff, you are instructed that a sufficient time had not elapsed before the accident to impart to the city notice of such condition of the bank, and that plaintiff cannot recover, and your verdict must be for the defendant, Kansas City.”

However, since the court gave sua sponte the below instruction, in all material substance similar to that which was refused, no error enures from the failure of the court to give the above instruction. For the instruction given by the court on this theory of defense reads thus:

“The court instructs the jury that if they believe from the evidence that on and before December 15, 1914, the embankment in question was reasonably safe for persons to pass on and along the north side of Forty-ninth Street, and if you find from the evidence that on said date a fire was maintained adjacent to the part of the embankment which fell, and that (sic), the direct result of such fire, if any, said bank was caused to fall, then the defendant city had no notice thereof and you must find for defendant Kansas City.”

While there is a patent hut harmless clerical error in the above instruction, the meaning of it is plain. It is also plain that it presents to the jury the identical defense presented by the instruction refused. We disallow this contention.

VII. Defendant asked and the trial court refused the below instruction, to-wit:

“The court instructs the jury that although you may find from the evidence that plaintiff was injured at the time and place claimed by her, yet if you find from the evidence that plaintiff, by standing the embankment which fell upon her while the bank was subjected to the- heat of a fire built near it, and that said fire caused said bank to fall, did not exercise ordinary care under the circumstances and that such lack of care directly contributed to her injury, then plaintiff cannot recover, and your verdict must be for defendant, Kansas City.”

We think this was error. There were both plea and proof upon defendant’s part of contributory negligence. Plaintiff was sui juris; and while she says that she could not see the clay wall, except by the light of the bonfire, which illuminated only some four or five feet of it, and thus as we have ruled made a case to go to the jury, there was countervailing testimony adduced on defendant’s part which tended to prove that this fire was' of such size and character thát it so lighted up this clay bank as to make its menace apparent.

VIII. It is also urged that instruction C2, which was the chief and (except for a mere formal instruction withdrawing certain evidence from the jury) the only instruction asked by plaintiff, is erroneous; for that it assumes as true one of the vital, contested issues of the case. That is to say, that it tells the jury that the clay wall in question was reasonably certain to fall. It is a close and difficult question whether the language and grammatical construction' of this instruction makes it susceptible or not to the criticism urged. The law is well settled in favor of defendant’s abstract contention. [Crow v. Houck’s Ry., 212 Mo. 589; Coffey v. Carthage, 186 Mo. 573; Miller v. Busey, 186 S. W. 983; Ganey v. Kansas City, 259 Mo. 654.] It is only the language of the instruction, therefore, which makes the point doubtful. The instruction is, to say the least of it, ambiguous. Since the case must be reversed upon other grounds, we need not say more upon the question, for doubtless learned counsel for plaintiff will be advised upon another trial to so recast this instruction as wholly to obviate the criticism urged.

IX. We are also of the opinion that the verdict is excessive. This condition can also be corrected upon a new trial, in the even that the triers of fact do not see fit to do so of their own initiative. For the errors pointed out, let the case be reversed and remanded for a new trial not inconsistent with what we have herein ruled.

All concur, Williams, P. J., in result and in all except paragraphs one and nine.


author: WHITE, C.

text:
    THE STATE ex inf. DAVID E. KILLAM, Prosecuting Attorney, ex rel. CLAUD CLARE et al., Appellants, v. CONSOLIDATED SCHOOL DISTRICT NUMBER ONE OF LINCOLN COUNTY.
    Division Two,
    March 17, 1919.
    1. CONSOLIDATED SCHOOL DISTRICT: Special Meeting: Notice. If four members of the board of directors of a consolidated school district were present at a special meeting and all six members had notice, the meeting was legal.
    2. -: Annexation of Other Territory. The presentation of a certificate by the clerk of so much of a common school district as had not previously been incorporated in the consolidated school district showing that an election therein had been held upon the question of annexing its territory to the consolidated district and that a majority of its legal voters had voted in favor of such annexation, and of a written statement signed by a number of the citizens of such territory requesting the annexation, authorized the board of. the consolidated district to formally accept such territory, and so far as said board was concerned settled the matter of the regularity of such annexation.
    3. QUO WARRANTO: Estoppel. There is a distinction between an information filed by the State’s attorney ex officio and one filed by him at the relation of private parties. The purpose of the statute authorizing such a suit to be brought at the relation of a party in interest is to make relator responsible for the result and incapable of bringing it unless he has an interest in the result, and therefore, being burdened with the prosecution and having . authority to prosecute or discontinue it, he may be estopped like the real party in interest in any other, proceeding.
    4. -: -: Consolidated School District. In a suit in the nature of quo warranto brought at the relation of certain citizens inhabiting that portion of a common school district that had not been incorporated in a consolidated school district, to oust said consolidated district from exercising authority over such portion, which it was claimed had been regularly annexed to said consolidated district, evidence which justifies the trial court in finding that the common school district had been discontinued with relators’ consent, that they signed and presented to the board of the consolidated district a statement signifying their consent to the annexation of the territory to the consolidated district, that they subsequently attended the annual school election in the consolidated district and participated in the election of two directors, one of whom was a resident and former clerk of the common school district and is a relator, and voted on the length of the school term, the rate of taxation and other matters which came before the meeting, is sufficient to estop relators to question the validity of the annexation.
    5. -: -: Rule. Relator cannot maintain his suit to oust de facto officers from exercising their rights as such, if he was a party to the proceeding by which the office was acquired. If he has contributed to the grievance of which he complains, he cannot be heard.
    Appeal from. Lincoln Circuit Court. — Hon. Edgar B. Woolf oik, Judge.
    Affirmed.

      D E. Killam and Dudley & Williams for appellants.
    (1)The court erred in admitting the alleged certificate and record of the election of March 19, 1917. They were shown.to he spurious, untrue and not the official record of the meeting and known to be such by the school board of respondent. Laws 1913, p. 723, sec. 5; R. S. 1909, sec. 10882; State v. Lawrence, 178 Mo. 375; Johnson v. School District, 67 Mo. 319. Besides the alleged record of the meeting was not attested by the chairman of the meeting and it gives no intimation as to what proposition was submitted to the voters.. (2) The court erred in admitting the record 'of respondent’s school board of March 23rd for several reasons, (a) The meeting was not legally called, only four members were present and no notice to the other members appears to have been given. It was not a legal meeting. R. S. 1909, secs. 10849, 10868, and 10871; 10 Cyc. 784; 35 Cyc. 903-905; Phillips v. Decker, 101 Mo. App. 118; School District v. Smalley, 58 Mo. App. 658. (b) The members present knew that the papers filed with them were spurious, unofficial and untrue and they had no right to annex District No. 37 thereon. R. ,S. 1909, secs. 10880, 10882; R. S. 1909, sec. 10799. (3) The court erred in admitting any evidence on the theory of estoppel, for the reasons: (a) This was not a private proceeding, but a proceeding by the State relating to a public matter. The 'conduct of private parties was therefore immaterial. Consolidated District v. Hunt, 199 S. W. 944; Barker v. Smith, 271 Mo. 168; State ex inf. v. Taylor, 208 Mo. 451; R. S. 1909, secs. 2631, 2635, 32 Cyc. 1450, 32 Cyc. 1432; Edwards v. Kirkwood,' 147 Mo. App. 599; People v. Burns, 212 Ill. 227; State ex rel. v. Sharp, 27 Minn. 38. (b) Under the doctrine of estoppel there were no grounds of estoppel and the court erred in so holding. Acton v. Dooley, 74 Mo. 63; Blodgett v. Perry, 97 Mo. 263; Feerland v. Williamson, 220 Mo. 217; Osburn v. Court of Honor, 152 Mo. App. 652; Rogers v. Insurance Go.,-155 Mo. App. 276; Philips v. Butler County, 187 Mo. 698; Heidelberg v. St. Francis County, 100 Mo. 69; DeLashmutt v. Teetor, 261 Mo. 439; Spence v. Renfro, 179 Mo. 442; State v. Lawrence, 178 Mo. 379; Bales y. Perry, 51 Mo. 449; 16 Cyc. 680, 722, 726, 747.

      Button & Elision for respondent.
    (1) The minutes of the school meeting and the certificate of the secretary of the meeting filed with and presented to the board of Consolidated School District, constitute the official return of the secretary and this return'is conclusive in this case as to the result of the vote on the proposition for annexation, since no charge of a false or incorrect return was made by the relators in their pleadings. Laws 1913, sec. 5, p. 723; Secs. 10799, 10880, 10882, R, S. 1909; ’32 Cyc. 1449, Note 87. (2) The relators are estopped by their conduct to deny the validity of the annexation. 32 Cyc. 1449; State ex rel. Prilliman v. Tipton, 109 Ind. 78; 2 Dillon Municipal Corp. sec. 901; Stultz v. State, 65 Ind. 492; Muliken v. City of Bloomington, 72 Ind. 161; King' v. Clark, 1 East, 46; State ex inf. Barker v. Smith, 271 Mo. 178; Black v. Early, 208 Mo. 303; State el, inf. v. Taylor, 208 Mo. 451; State ex inf. v. Heffernan, 243 Mo. 450; State ex rel. Kempf v. Boal, 46 Mo. 531; State ex rel. v. McMillan, 108 Mo. 157; Art. 13, Chap. 22, R. S. 1909. (a) The proceeding in the nature of quo warranto is essentially a civil action. State ex rel. v. Kupferle, 44 Mo. 154; State ex inf. v. Equitable Co. 142 Mo. 325; State ex rel. v. Standard Oil Co., 218 Mo. 353. (b) A de facto' corporation is not a void corporation, however irregular or illegal may have been the procedure by which its organization was undertaken and the corporate. existence of such de facto corporation cannot be called in question or disturbed except in a direct proceeding by the State through its prosecuting officer acting either ex officio
      or at the relation of a private relator who can show himself a fit and suitable'person to represent the State in such prosecution, and the same rule necessarily ■applies in the case of a de facto annexation of territory. Consolidated District v. Hunt, 199 S. W. 945; State ex inf. Barker v. Smith, 271 Mo. 178; Black v. Early, 208 Mo. 303; State ex inf. v. Taylor, 208 Mo.. 451; State ex inf. v. Berkeley, 140 Mo. 186; State ex inf. v. Heffernan, 243 Mo. 450; State ex rel. Kempf v. Boal, 46 Mo. 531. (c) "When quo warranto proceedings are begun by a state official at the relation of a private individual, such private individual must be a proper and qualified person to become a relator and unless it is made to appear that the relator has some special interest in the prosecution of the proceeding the prosecution must fail, and it is a corollary to this rule that a relator who seeks to disturb a de facto corporation or a de facto annexation must be a qualified relator not only in the sense of being specially interested in the prosecution of the writ, but also in the sense that he must not have disqualified himself by his previous conduct inconsistent with the relief he seeks. State ex inf. v. Berkeley, 140 Mo. 186; State ex inf. v. Heffernan, 243 Mo. 450; State ex rel. Kempf v. Boal, 46 Mo. 531. (d) A proceeding in the nature of quo warranto instituted by a prosecuting officer at the relation of a private individual under the provisions of Art. 13, Chap. 22, R. S. 1909, is essentially a conflict waged between the private relator and the defendant in which the relator is in absolute control on the side of the prosecution, and such relator is therefore in no better position to escape the force of the doctrine of estoppel than the litigants in other cases; on the contrary, such • relator, assuming to act for the State in assailing a public de facto corporation in the exercise of a public franchise, is subject to a more rigorous application of this wholesome doctrine. Secs. 2631, 2632, 2634, 2635 and 2636, R. S. 1909; State ex inf. v. Taylor, 208 Mo. 451; State ex rel. v. McSpaden,' 137 Mo. 634; Consolidated District v. Hunt, 199 S. W. 945; State ex inf. Barker v. Smith, 271 Mo. 178; State ex inf. v. Berkeley, 14*0 Mo. 186; State ex rel. Kenapf y. Boal, 46 Mo. 531. (3) The territory of District No. 37 was legally annexed to the consolidated district pursuant to a valid and legal election. Laws 1913, sec. 5, p. 723; Sec. 10882, R. S. 1909; Sec. 10880, R. S. 1909; Sec. 10799, R. S. 1909. .
   WHITE, C.

The prosecuting attorney of Lincoln County filed in the circuit court of that county an information in the nature of a quo warranto at the relation of eighteen taxpaying citizens of School District No. 37 of Lincoln County, against Consolidated School District No. One of Lincoln County, the purpose of which was to oust the respondent from exercising authority over the territory of District No. 37.

On trial of the cause the circuit court found the issues in favor of the respondent, Consolidated School District No. One, and the relators appealed.

The petition of relators alleged that they were resident taxpayers within and patrons of School District No. 37, a legally and duly organized school district; that Consolidated School District No. One without any warrant or authority, exercised jurisdiction and authority of a consolidated school district over the lands and property contained in School District No. 37, and was attempting to fix the rate of taxes for school purposes and attempting to exercise control over the school -as a part of Consolidated District No. One, and had abolished, or attempted to abolish, the school within the said School District. No. 37.

It is further alleged that School District No. One undertook to procure the annexation of School District No. 37 and procured a special election and school meeting to he held in District No. 37 for The purpose; but that no proper or legal election was held; and at the election so illegally held, a majority of the qualified L inters of said district who voted did not vote in favor of the annexation of School District No. 37 to Consolidated School District No. One; that the secretary of said special School District No. 37 failed to certify a copy of the result of said special election with a copy of the record of said special school meeting to the school board of said District No. 37, and to the said school board of said Consolidated District No. One; that all the proceedings by which it was attempted to annex said School District No. 37 to said Consolidated School District were illegal, insufficient, and without warrant or authority of the law. The petition then prayed that School District No. One be ordered to show upon; what authority it claims to exercise, its privileges, and that it be excluded from all corporate rights, privileges and franchises over District No. 37 and its territory.

For answer and return respondent sets up that a part of the territory of School District No. 37 of Lincoln County had been incorporated in District No. One, and that thereafter the remaining inhabitants of School District No. 37, on the 19th of March, 1907, held a special school meeting at the schoolhouse in said District No. 37 for the purpose of voting upon the annexation of said School District No. 37 to Consolidated School District No. One; that a proper petition was presented to the board requesting that such meeting be called and proper notice given of such meeting; that at such meeting a majority of the voters of said District No. 37 voted in favor of such annexation; that the secretary of that meeting duly certified that fact with a copy of the record to the board of directors of School District No. 37 and the board of directors of Consolidated School District No. One, and that thereupon the board of directors of said Consolidated School District No. One met and voted in favor of such' annexation and affirmed such annexation by proper order and resolution, and that thereupon said District No. 37 became a part of Consolidated District No. One.

The return further alleges that all the relators, immediately after the holding of said special meeting by the board of directors of said Consolidated School District No. One, made statements to the hoard of said school district to the effect that the election resulted in favor of annexation, requesting that the board of said District No. One receive and accept School District No. 37, confirming such annexation. That the school board of said Consolidated School District No. One relied upon such, statements and representations and that the board of directors of District No. 37 and officers of said district fully recognized such annexation as legal and valid and turned over the records and property of said school District No. 37 to the board of Consolidated District No. One; that thereafter all the qualified -voters within the territory of said School District No. 37 participated in the annual school election held in said Consolidated School District in April, 1917, and at said school election voted upon all the propositions submitted to the voters of said district, and that one of the relators, Claud Clare by name, who resided within the annexed territory, was elected as one of the directors of School District No. One, and qualified as such and voted for the election of teachers in said district, and voted upon matters passed upon by said board, all with the acquiescence, concurrence and consent of the relators herein and of all the qualified voters and adult inhabitants of said annexed territory; that upon the confirmation of the annexation of said territory, the board of directors of said School.District No. 37 disbanded with the acquiescence, consent and concurrence of all the relators and all the adult inhabitants and qualified voters of said annexed territory, and have made no effort to carry on any school in said territory or to levy any taxes for the purpose of conducting such school, or to employ any teacher for that purpose or to in any way act or operate as a school district or corporate body, but on the contrary have concurred in the disorganization of said territory as a school district, and acceded to the annexation thereof to said consolidated district. Wherefore respondents claim that the relators are estopped to deny the validity of the annexation of the said territory or the validity of the proceedings relating thereto.

The judgment of the trial conrt recited that the territory of School District No. 37, as it existed at the time of the meeting on March 19, 1917, is now lawfully incorporated and annexed to said Consolidated School District No. One, and is a part of said district, and that said district is entitled to exercise the privileges, rights and franchises over the territory of District No. 37. The respondent was discharged.

On the trial the respondent, Consolidated School District No. One, undertook the burden' of establishing the facts stated in its return and answer. It introduced George F. Mudd, a member of the board of directors and district clerk of Consolidated School District No. One. He testified that the board of directors of School District No. One met on March 23, 1917, and accepted the certificate of election held in District No. 37 on March 19th, previous; he identified the record showing á special meeting on March 23rd; the board of directors consisted of six members and only four were present at' that meeting. This record revealed the acceptance of the result of the election in No. 37 asking said election.

The respondent then offered the certificate of the clerk of District No. 37 and the records of the proceeding of said district, showing the holding of the special election in that district on March 19th for the purpose of voting on the proposition to annex to School District No. One, and showing that the result in said election resulted in fourteen for such annexation and thirteen against. The respondent also offered in evidence the petition to the board of directors of School District No. 37 asking said election.

It was further shown that at the annual school meeting of the Consolidated School District No. One, held in April, 1917, several of relators and other voters in the territory of School District No. 37 were present and participated, voted on the election of two directors and voted on the length of the school term and what school buildings should he used, the rate of taxation, and the term of school; Claud Clare, former director of District No. 37, was elected as a director of Consolidated School District No. One. The minutes of meetings of the board of directors was introduced showing that Claud Clare participated in such meetings after the annual school meeting.

The respondent then rested its case.

Thereupon relators introduced Claud Clare. He testified that at the special meeting held in District No. 37 on March 19th, the votes showed fourteen for annexation and fifteen against, and the record was so made and the minutes were- so written. These minutes were lost or destroyed, and four days later the minutes certified to the hoard of directors of Consolidated School District No. One showed fourteen for and thirteen against. Other evidence was offered of that. result. As to just the reason for this change there is some confusion in the testimony, hut no dispute as to the fact. It seems that immediately after the election on March 19th, the people living in School District No. 37 became afraid that they would be annexed to what is termed the Millwood District, another adjacent and consolidated district, to which they all objected, and in order to avoid that calamity they cast about for a method to reverse their vote and procure annexation to Consolidated District No. One. It is disputed as to whether some persons in District No. One who favored the annexation started the agitation or whether it originated in District No. 37. At any rate, a pretext was discovered to disregard the return and certify that the vote was carried in the supposed discovery that two of the voters who voted against annexation did not live in tlie district.' Having made that discovery it seems that practically all parties in both districts concurred in the change of the minutes of the proceeding. Claud Clare, Clerk, District No. 37, then wrote up the minutes in accordance with the new attitude of the voters as showing that the election was carried by fourteen to thirteen.

A paper called “Exhibit 5” was before the court and much testimony offered in connection with it. Exhibit 5 is not in the record, but it was treated at the trial as in evidence and is so treated in the argument here. It appears to have ‘ been a statement signed by most of the relators and probably all or nearly all the voters in District No. 37 who originally voted against annexation. The statement was to the effect that the signers favored annexation and desired, to have the order made accordingly. It seems that this paper was before Consolidated School District No. One at its meeting on March 23rd, when it acted upon the certificate of the clerk.

Much evidence was offered pro and con as to whether the two voters, Walter Morris and Charles Houston, who voted against annexation, were in fact residents of District No. 37.

There was evidence offered to show that before the annexation was accomplished in the way indicated, it was agreed by those in authority in District No. One that a ward school was to be placed at a particular point in the territory of No. 37; that afterwards the ward school was not located to suit the people of No. 37, and the failure of District No. One to do that was the cause of the dissatisfaction of relators and their bringing this action to declare the whole thing void.

I. By the Act of 1913 (Laws 1913, p. 722) Article 4, Chapter 106, Revised Statutes 1909, was made to apply to consolidated school district and .country districts' adjacent, where formerly it only applied to towns and villages and school districts adjacent.

It is alleged in the return of the respondents that a part of the territory comprised of District No. 87 had already been incorporated within the territory of Consolidated District No. One, and the controversy in this case arises over the inclusion of the balance of the territory. The case was tried on that theory, and that Section 10880 and 10882 applied to the matter under consideration.

It is claimed by appellant that the meeting of the board of directors of Consolidated School District No. 1 on March 23rd was not valid, because only four of the sis members of the board were present. There is evidence, however, tending to show that all members of the board were notified. The certificate from the clerk of the district, No. 37, was present showing the election had been carried, also the statement signed by a number of the relators, voters of No. 37, designated as Exhibit No. 5, requesting the annexation. Upon this information the board of Consolidated School District No. One voted and accepted the territory comprising District No. 37 as formally annexed.

That proceeding of the board of Consolidated District No. One was regular in every respect and settled the matter so far as action of that board was concerned.

II. Much of the briefs and arguments of the parties is taken up in a discussion of the regularity of the proceeding by which District No. 37 attempted to annex itself to Consolidated District *No. One, and whether, under the circumstances, the actual vote cast at the electon of March 19, 1907, may be inquired into and the qualifications of voters who voted at that time determined. Before considering those alleged irregularities, another question must be determined:

It is asserted by respondent that the relators here are estopped by their conduct to question the regularity of that proceeding.

Appellants, on the other hand, claim that the relators cannot be estopped; that this is a proceeding in quo warranto brought by the State on the information of the State’s attorney; that it is a proceeding of a public nature and must be determined as such, and not determined according to the interests of the person at whose rélation it was instituted.

It is true that an information in the nature of quo warranto filed by a prosecuting attorney ex officio is of the character contended for and entirely within the control of the State. It is a common law remedy derived from the ancient writ of quo warranto. [State ex rel. Brown v. McMillan, 108 Mo. l. c. 157; State ex inf. v. Smith, 271 Mo. 168, l. c. 178; 22 R. C. L. p. 657.] The cases, however, have always made a distinction between an information filed by the State’s attorney ex officio and one filed by him at the relation of private parties. [State ex inf. v. Berkeley, 140 Mo. l. c. 186; State ex rel. Boyd v. Rose, 84 Mo. 198, l. c. 202; State ex rel. McIlhany v. Stewart, 32 Mo. 379, l. c. 381.]

The proceeding here brought at the relation of private parties is purely statutory, and the statute, Sections 2631 to 2635, Revised Statutes 1909, determine the character of the action. For instance, Section 2631 provides: “When such information has been filed and proceedings have been commenced the same shall not be dismissed or discontinued without the consent of the person named therein as relator; hut such relator shall have the right to prosecute the same to final judgment, either hy himself or by attorney.”

Section 2634 provides, that the person procuring such information shall proceed thereupon at the most convenient speed. Section 2635 provides that if judgment should be given for the defendant in such a proceeding he may recover his costs against the relator.

In the case of State ex inf. v. Taylor, 208 Mo. 442, cited as showing that the prosecuting attorney who files the information controls the proceeding, it was simply held that the proceeding could not be commenced in the name of a prosecuting attorney without his consent; that is, he must determine in the first instance whether such proceeding may be begun. The court, however, said, 1. c. 452': “When such information has been once filed and a proceeding commenced in the circuit court at the relation of such person, such prosecuting attorney or Attorney-General steps down from the exclusive stool of duty and responsibility, and, seating himself on a lower and more humble bench of power shared jointly with relator, he may not thereafter dismiss or discontinue such proceeding without his consent.” See, also, State ex rel. v. McSpaden, 137 Mo. 628, l. c. 634. It has also been held that such a proceeding could not be maintained by a relator who had no special interest in the subject-matter of the suit. [State ex inf. v. Heffernan, 243 Mo. 442, l. c. 450-451; Campbell v. Sargent, 85 Kan. 590; State ex rel. v. Kennerly, 26 Fla. 608; State ex rel. v. Hamilton, 29 Neb. 198.] Such a proceeding is held to be essentially a civil proceeding to ascertain and settle a matter of private right between two individuals where it is sought to determine title to an office. [State ex rel. v. Lawrence, 38 Mo. 536, l. c. 539.] The purpose and intent of the statute is to make the relator, the party in interest, responsible for the result and incápable of bringing the proceeding unless he have an interest in the result of the suit. The relators, therefore, being burdened with the prosecution of the suit and being the parties interested in the result and having authority to prosecute' it or discontinue it, may be estopped like' the real parties in interest in any other proceeding.

' III. The next question then is, did the relators by their conduct estop themselves to question the validity of the annexation? A number of them attended the regulár school election of District No. One, which occurred in April following the annexation. The names of a number of those who attended are given.

They participated in the election of two directors, one of whom was Claud Clare, a resident and former clerk of District No. 37. They voted on the length of the school term, the rate of taxation and other matters which came before the annual meeting. The school in District No. 37 was discontinued with their consent. Previous to that at the meeting of the board of Consolidated District No. One, held on March 23rd, when the proceedings of District No. 37 were canvassed and the annexation ordered, Exhibit 5 was before them, signed by a number of relators, particularly those who had voted against annexation; it signified consent to the certification that annexation had carried. Appellants in the argument concede these acts of some of the relators, but assert that three of the relators did not sign Exhibit 5 and were not shown to have favored the annexation at any time. The names of such three relators are not given and they, do not appear in the evidence. The record shows that three of the relators withdrew from the case before the trial was concluded, and among them was D. Bibb. Bibb is mentioned in the evidence as one of the objectors who did not appear at the annual school election. Walter Morris is mentioned as one who did not sign Exhibit 5; he was one of the two whose residence in District No. 37 was questioned, but he appeared among the list of those who participated in the annual election. While the names of a number of residents of- District No. 37 are given as having-attended the annual election and participated in the proceeding, it does not state that this list mentioned by one witness included all such residents of said District 37 who attended the meeting. At least thirteen persons signed Exhibit 5, their names are not given and it is not shown whether they are the same who attended the annual meeting, or whether some of them were different. In short, so far as the record shows, we cannot say that the trial court was without evidence to support a finding that all the relators did participate in some of the proceedings which recognized the validity of the annexation.

It is the general rule in such cases that where a relator seeks to oust the de facto officers front exercising their rights as such he cannot maintain his suit if he was a party to the proceeding by which the office was acquired. If he has contributed to the grievance of which he complains he cannot be heard. [High on Extraordinary Remedies (3 Ed.) secs. 686-7; State ex rel. Prilliman v. Town of Tipton, 109 Ind. 73, l. c. 78.] In the case last cited it is held that the relator in such case cannot maintain his action unless it is shown “that he did not concur in the act or matter of which he complains.”

Appellant quotes from Acton v. Dooley, 74 Mo. 63, l. c. 67, where this court, following Herman on Estoppel, laid down the elements of estoppel in pais as follows: “Before the party is concluded by an estoppel, it must appear, 1st, That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title of the claim he poses to set up. 2nd, That the other party has acted on the admission. 3rd, That the other party will be injured by allowing the truth, of thé admission to be disproved.”

The facts in this case contain all those elements of estoppel in pais. The relators made admissions which are inconsistent with their purpose here. The respondent acted upon them in incorporating the district and in proceeding with the regular business of the annual election. Expense was incurred, taxes levied, teacher employed, teacher’s salary fixed, and the property and affairs of the new district entirely readjusted on the faith and belief of the respondent that the relators acquiesed in that proceeding. The relators are estopped to question the validity of the annexation.

It becomes unnecessary to .consider the alleged irregularities at the meeting of March 19th.

The judgment-is affirmed.

Roy, C., absent.

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

All of the judges concur.