author: WOODSON, J. GRAVES, C. J.

text:
    THE STATE ex rel. JAMES P. NEWELL v. RHODES E. CAVE, Circuit Judge.
    In Banc,
    December 22, 1917.
    1. ELECTION CONTEST: Notice: Defective and Untimely Service: Waiver: Jurisdiction. A failure to serve the notice of an election contest for a county office within the time prescribed by statute, and the defect in the manner of service, in that it was served by a private individual instead of by an officer, are waived by a general appearance of the contestee. The parties to the proceeding are the contestant and contestee, and the contest for the title to the office is the subject-matter. Jurisdiction of the subject-matter is conferred by law, and its non-existence cannot be waived; but service of process has to do with jurisdiction of the persons or parties to the action, and any defect in that service, as to time or manner, or a failure to serve the notice at all, is waived by the contestee’s appearance to the merits. [Overruling any contrary ruling in State ex rel. Woodson v.' Robinson, 270 Mo. 212.]

      Held, by GRAVES, C. J., dissenting, with vhom BLAIR and WILLIAMS, JJ., concur, that the statute requires the notice to be filed with the clerk, and until it is served in the manner and within che time prescribed by statute and filed with him the court obtains no jurisdiction of the subject-matter or contestee, since it is only a notice so served that can be filed.
    2. -■ — : General and Limited Jurisdiction of Circuit Court. Circuit courts do not exercise a limited jurisdiction in election contests or proceed according to a prescribed and exclusive procedure, but are courts of general jurisdiction. It is immaterial liow the right claimed or remedy prayed for originated so long as the court’s jurisdiction is not limited by the law creating the one or conferring the other, and no such express limitation is found in the laws governing election contests.

      Held, by GRAVES, C. J., dissenting, with whom BLAIR and WILLIAMS, JJ., concur, that jurisdiction. to hear and determine an election contest is not a part of the general common law jurisdiction possessed by circuit courts, but the tribunal and the proceeding are purely statutory, and as the statutes do not give the court jurisdiction of the subject-matter until a notice, served in the statutory manner, is filed with the clerk, the contestee by entering his general appearance does not give the court jurisdiction.
    3. MANDAMUS: Reinstatement of Cause. Mandamus is the proper remedy to compel the trial court to reinstate, and to dispose of in the orderly course of procedure, a cause of which it has jurisdiction and which it has dismissed without a hearing
    Mandamus.
    Peremptory Writ Awarded.

      Mortimer B. Levy, Peter T. Barrett and Jones, Hoclter, Sullivan & Angert for relator.
    (1) Jurisdiction of the subject-matter is conferred by law, and its non-existence may not be waived. Service of process has to do with jurisdiction of the person, and is waived by appearance to the merits. Fithian v. Monks, 43 Mo. 515; State ex rel. v. Smith, 104 Mo. 422; State ex rel. v. Neville, 110 Mo. 348; Dowdy- v. Wamble, 110 Mo. 284; Railway v. Lowder, 138 Mo. 536; 7 R. C. L. 1029; O’Brien v. People, 216 111. 354. (2) An appearance to the merits of an election contest is a waiver of defects in the service. Lankford v. Gebhart, 130 Mo. 641; State ex rel. v. Oliver, 163 Mo. 679; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. McElhinney, 199 Mo. 67; Quartier v. Dowiat, 219 111. 326; State v. Moore, 54 S. C. 536; Whitcomb v. Chase, 83 Neb. 360. (3) A writ of mandamus is the proper remedy to compel the reinstatement of the cause. Castello v. St. Louis Circuit Court, 28 Mo. 259; State ex rel. Bayba v. Philips, 97 Mo. 347; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Shackleford, 263 Mo. 58; State ex rel. v. Holtcamp, 266 Mo. 372.

      Major & Revelle, Spencer & Donnell and George B. Webster for respondent.
    (1) Election contests are special statutory proceedings in which the courts of first instance exercise a limited jurisdiction and proceed according to a prescribed and exclusive procedure. State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Hough, 193 Mo. 643; Bradbury v. Wightman, 232 Mo. 394; State ex rel. v. Robinson, 192 S. W. 1001; State v. Gamma, 149 Mo. App. 702; Taafe v. Ryan, 25 Mo. App. 566; McCrary, Elections (4 Ed.), sec. 370; 15 Cyc. 435. (2) Where such a special statutory proceeding is created the particular method of acquiring jurisdiction specified is essential to its exercise. 11 Cyc. 670; 7 Ency. PI. & Pr. 378; 1 Bailey on Jurisdiction, sec. 129; Fischer v. Langbein, 103 N. Y. 84; Yan Loon v. Lyons, 61 N. Y. 22; People v.Police Board, 6 Abb. Pr. -162. This proposition is recognized and approved by our courts in cases of kindred nature. Odie v. Clark, 2 Mo. 13; Hudson v. Wright, 204 Mo. 412;' Pattison v. Lutz, 1 Mo. App. 133, Devore v. Staeckler, 49 Mo. App. 548. It is not otherwise because our circuit courts are courts of general original jurisdiction. Where such courts are vested by statute with special and limited powers in proceedings which do not belong to them as courts of general jurisdiction, and which are not to be exercised according to-the course of the common law, their acts and proceedings are to be treated as those of courts of special and limited jurisdiction. Brown on Jurisdiction, sec. '3-a; Furgeson v. Jones, 17 Ore. 204; Morse v. Presby, 25 N. H. 299; Galpin v. Page, 18 Wall. 350. (3) There is no distinction between this ease and State ex rel. Wood-son v. Robinson, 270 Mo. 212. The notice of contest given by Newell was no notice because served by a private person. When the contestee appeared seventy-four days had elapsed after the expiration of the tinr within which by statute a valid notice could have been served. There was, therefore, no case pending, no remaining chance to invest any court with jurisdiction, and no act of any party could create or confer any by appearance or consent.
   WOODSON, J.

This is an original proceeding instituted in this court, asking for a writ of mandamus against the Honorable Rhodes E. Cave, one of the .judges of the circuit court of the city of St. Louis, directing him to reinstate and proceed with the trial of the case of James P. Newell v. Frank M. Slater, an election contest, as to the right to , the office of Public Administrator of said city, lately pending in said court, before said judge, and by him dismissed. An alternative writ was issued and served upon Judge Cave, to which he filed a demurrer, thereby admitting the facts stated therein. They are substantially a.s follows:

Newell, the relator, and Slater were adversary candidates for the office of Public Administrator of the city of St. Louis at the November election of 1916; the Board of Election Commissioners of that city awarded the certificate of election to Mr. Slater. Within the time allowed by the statute the relator, Mr. Newell, served Mr. Slater with a notice of contest. This notice was served, however, not by the Sheriff, but by a. private individual. The contents of the notice of the contest is not here material and for that reason is omitted from the statement of the case. The affidavit of the private individual who served Mr. Slater is found in the return. This notice of contest was filed in the office of the Circuit Clerk on the 7th day of December, 1916, and was returnable to the February term, 1917, of the circuit court of the city of St. Louis.

On the 23rd day of December, 1916, the contestee, Mr. Slater, served the relator, Mr. Newell, with a notice of counter-contest, which also is immaterial here. . This likewise was served, not by a Sheriff of the city of St. Louis, but by a private individual.

The opening day of the February term of the circuit court of the city of St. Louis for 1917 was the 5th day of February, and on that day Mr. Slater appeared by his counsel and filed his notice of the counter-contest in court.

On the 24th' day of February, 1917, the relator served on his adversary an amended notice of contest. This again was served, not by the Sheriff of the city of St. Louis, but by a private individual. This amended notice of contest was filed by leave of court and in open court on the 24th day of February, 1917.

On the 1st day of March, 1917, the contestee, Slater, appeared again in open court, and filed his motion to strike out parts of said amended notice of contest. The ground upon which this motion was rested had nothing to do with the manner in which service had been had under either the original or amended notice of contest. It set up that the original notice of contest was so defective in the matter of averment respecting the names of disqualified voters and the grounds of their disqualification as not to admit of amendment. The contestee later appeared in court and submitted his motion to strike out parts of his amended notice of contest, and the same was overruled by the court.

On the 4th day of May, 1917, the relator filed his application for a recount of the votes cast. On the same day and for the first time the contestee, Slater, challenged the jurisdiction of the court to proceed with the matter by filing his motion to dismiss the proceedings, for the first time contending that the court was without jurisdiction, for the reason that the notice of contest had not been served by any officer of law authorized to serve process.

On the 4th day of June, 1917, the court sustained this motion to dismiss, whereupon followed this application for a writ of mandamus to compel the court (Judge Cave, presiding in the division where the controversy was pending) to reinstate the contest and proceed with the hearing and determination of the same in orderly course.

The correct decision of this case turns upon the proper time and manner of commencing and giving the notice of contest to the contestee as required in. Section 5924, Revised Statutes 1909, which reads as follows:

“No election of any county, municipal or township officers shall be contested, unless notice of such contest be given to the opposite party within twenty days after the vote shall have been officially counted.”

Counsel for respondent insists with much vigor that since the notice of contest prepared and made out by the contestant was served upon the contestee by a private individual, and not the Sheriff of the city of St; Louis, the same was ab initio null and void, to the same extent as if it had never Been prepared or seryed by any one; also that service of such notice cannot be waived and in support of that insistence counsel rely with much confidence upon the ruling of this court in the case of State ex rel. Woodson v. Robinson, 270 Mo. 212.

After a careful study of that case it must be conceded that the opinion therein contains language sufficiently broad and comprehensive to warrant the position taken by counsel in this case; but in that case it must be noticed that the contestee, from the very inception of the case, challenged the jurisdiction of the court over the cause for failure of proper service, and renewed the same at every proper step taken thereafter, so the question of waiver involved in this case was not properly before the court in that case for decision; and what was there decided as to this question was therefore, mere obiter, and not binding on the court.

In the case at bar, as appears from the statement of the case, which is conceded by counsel for all parties to be correct, the contestee repeatedly entered his general appearance in the cause, and at no time prior to May 4, 1917,. challenged the jurisdiction of the court for any reason. Upon that day the contestee for the first time filed his motion to dismiss the cause for the reason that the court acquired no jurisdiction over the subject-matter thereof, because the notice of contest had not been served by an officer of the law authorized to serve process, and that the same could not be waived.

Counsel for respondent seem to confuse the subject-matter of the 'cause with the person of the contestant. It is too plain for argument that the .contestant and contestee are the parties to the ca-use, and the contest of the title to the officer is the subject-matter thereof.

The jurisdiction of the court over the subject-matter of the cause is confessed by law, and its non-existence cannot be waived by the parties; but the service of process has to do with the jurisdiction of the court over the persons or parties to the cause, and that service may be waived by the appearance of the parties to the merits. The authorities are uniform on those questions. [Fithian v. Monks, 43 Mo. l. c. 515; State ex rel. v. Smith, 104 Mo. l. c. 422; State ex rel. v. Neville, 110 Mo. l. c. 348; Dowdy v. Wamble, 110 Mo. l. c. 284, and cases cited; Railway Co. v. Lowder, 138 Mo. l. c. 536; 7 Ruling Case Law, p. 1029; O’Brien v. People, 216 Ill. 354, and cases cited.]

The question here presented for decision is not a new one in this State, nor in the jurisprudence of other states. Long prior to the rendition of the decision in the case of Woodson v. Robinson, supra, it had been the well settled law of this State that the contestee, by entering his general appearance in the cause, pleaded to or contesting the merits thereof, waived the question of jurisdiction when not properly and timely challenged.

In the case State ex rel. v. Oliver, 163 Mo. 679, this court said:

“It is thought that James K. Young’s appearance as contestee before the clerk of the circuit court, and filing, a motion to require his opponent to give security for costs and also his motion to make Oliver’s notice of contest more definite and certain, were such appearances as cured a defective service if there were any. [State ex rel. Lemon v. Board of Equalization, 108 Mo. 235.] Besides that, Young appeared before the county clerk and filed a counter notice of contest. ’ ’'

In State ex rel. v. Spencer, 164 Mo. 48, this court used this language:

“In this case, however, the contestee appeared and filed an answer and cross charges. By so doing he waived the failure to give the notice required by section 7057. [State ex rel. v. Board of Equalization, 108 Mo. l. c. 243; State ex rel. v. Springer, 134 Mo. l. c. 227.] Consent cannot confer jurisdiction over the subject-matter. But the court had jurisdiction over the subject-matter by law. Consent can confer jurisdiction over the person, and a party sui juris, may waive even the issue of a summons and appear and answer. If he does so he is as completely in court as if he had been broug’ht in by notice of process. [Coleman v. Farrar, 112 Mo. 54; Fithian v. Monks, 43 Mo. 502; Thompson v. Railroad, 110 Mo. 147; Leonard v. Sparks, 117 Mo. 103.] If the contestee desired to avail himself of the want of notice, he should have seasonably interposed an objection on that ground by a limited appearance to dismiss. [Thompson v. Railroad, 110 Mo. 147.]”

And in State ex rel. v. McElhinney, 199 Mo. 67, the court said:

“But there is a further answer to this whole contention on the part of the relator. It is admitted that as contestee he appeared in the circuit court and filed his answer to the merits of the case, which answer is in part a cross-complaint against the contestant, and having done so, he waived the failure to give the notice required by section 7057. [State ex rel. Folk v. Spencer, 164 Mo. l. c. 54, 55.] It follows, therefore, that in so far as the objections of the relator and contestee to the jurisdiction of the circuit court are founded upon the insufficiency of the notice, it must be held that they are not well taken, and the circuit court had jurisdiction of the contest.”

In Quartier v. Dowiat, 219 Ill. 326, the court said:

“The defendant in an election contest who enters his appearance generally and demurs to the petition, waives any ground of objection he may have had to the sufficiency of the service together with the right to afterwards enter a personal appearance or to object to the jurisdiction of the court over his person.”

In State v. Moore, 54 S. C. 556, it was said:

“Parties who appear by counsel before the board of county canvassers on the protest of an election, to determine whether parts of townships shall be cut off from one county,to form part of another, cross-examine the witnesses, and participate" in the argument on the merits, thereby waive an objection that they were not formally served with notice.”

In Whitcomb v. Chase, 83 Neb. 360, the Nebraska statutes provide for the appeal of an election contest from the county court to the district court by taking certain steps. Objection was made by the contestee to the manner in which this appeal was taken, and the Supreme Court of that State said on this subject:

“The district court having been given appellate jurisdiction of the subject-matter of such contests, mistakes and irregularities in perfecting an appeal will not deprive it of such jurisdiction. Defects and irregularities in perfecting an appeal may be waived by the parties, and failure to make seasonable objection to the jurisdiction of the district court will constitute a waiver.”

In Dudley v. Superior Court, 110 Pac. 146, the contestee first demurred to the statement of the contestant. The California statute provides that a demurrer was a general appearance, and without a statute our courts hold to the same rule. After his demurrer was passed upon, the contestee objected to the service of notice, and it was held that his objection came too late. The court said:

“It further appears by the petition that upon the same date when the order was made calling the special session the petitioner, defendant in said contest, filed.a general demurrer to the statement of Jones, the contestant. Under section 1014 of the Code of Civil Procedure the effect of said demurrer was the entering of an appearance to the proceeding. The parties then being in court, and petitioner herein having entered an appearance to the proceeding, the neglect- of the clerk to issue the citation in proper form, or the service thereof, is of no materiality in determining the question of personal jurisdiction.”

In short, the cases just considered clearly hold that the law confers jurisdiction over the subject-matter of an election contest, and that the service of the notice of contest required by said Section 5924 by the proper officer, or the general entry of appearance of the contestee, gives the court jurisdiction over his person.

II. Counsel for respondent in a broad and general sense do not controvert the doctrine announced in paragraph one of this opinion, but insist that:. “Election contests are special statutory proceedings in which the courts of first instance .exercise a limited .jurisdiction and proceed according to a prescribed and exclusive procedure,” and, therefore, the conclusions reached in the previous paragraph are not sound. In our opinion that insistence is untenable. The circuit court is a court of general jurisdiction, given jurisdiction over matters of law and equity, and it is entirely immaterial how the right claimed or remedy prayed for - originated, so long as the jurisdiction of the court is not plainly limited by the law creating the right or conferring the remedy. Public policy is against placing special limitations upon the jurisdiction of courts of general, jurisdiction, and the policy of the courts is to frown upon such limitations unless it clearly appears. from the act conferring the jurisdiction. That the Legislature, by the statute under consideration, intended no such limitation is clearly shown by the authorities heretofore considered. We are, therefor, of the opinion that the case of State ex rel. Woodson v. Robinson, supra, in so far as it is in conflict with the views here expressed should be overruled and it is accordingly done.

III. It is. no longer an open question in this State that mandamus to compel the reinstatement of this cause and its disposition by the circuit court in the orderly course of procedure is the proper remedy. The following authorities so hold: Castello v. St. Louis Circuit Court, 28 Mo. 259; State ex rel. Bayha v. Philips, 97 Mo. 331, 347; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Shackelford, 263 Mo. 52, 58; and State ex rel. v. Holtcamp, 266 Mo. 347, 372.

For the reasons stated the alternative writ heretofore issued is made permanent.

All concur except Graves, G. J., who dissents in a separate opinion in which Blair and Williams, JJ., concur.

GRAVES, C. J.

(dissenting) — I. I cannot concur with' my learned brother in this case. I do not agree that jurisdiction of the subject-matter was not involved in the case of State ex rel. Woodson v. Robinson, 270 Mo. 212. The challenge of jurisdiction wag guffieiently broad to cover jurisdiction of the subject-matter, as I understand subject-' matter, in so far as it pertains to jurisdiction.. It can. be said that the question of waiver of jurisdiction (jurisdiction of the person) was. not in that case, because throughout' the question of no jurisdiction was urged. This matter' of waiver was discussed in the Woodson case, because urged by respondent in that case, but it did not remove from the case the two questions, i. e.: (1) jurisdiction of subject-matter, and (2). jurisdiction of person, both of which were preserved in the case. Jurisdiction of the court over the subject-matter of that contest wrus in the case, and as the writer of the opinion therein we purposely ruled thereon. So to my mind what was said, being upon an issue directly raised, was not obiter. It is true the case might have properly passed oft on the question of jurisdiction of person, but both matters were raised, and decided.

II. Nor do I agree, in the instant case, that the circuit court ever acquired jurisdiction of this contest. Under the facts stated by our learned brother, the very statute precludes the jurisdiction of the circuit court, and this we will point out presently,

'Whilst it is true that the circuit • courts are courts of general common law jurisdiction, we must not overlook the fact that election contests were unknown to common law. “At common law there was no such proceedings known as a contested election, and therefore, we can get no aid in our inquiry from that quarter.” [State ex rel. v. Hough, 193 Mo. l. c. 643.] “A contested election is a purely statutory proceeding in Missouri, both as to the tribunal and the character of the proceeding, and was unknown at common law.” [State ex rel. v. Slover, 134 Mo. l. c. 15.]

In other words, such proceeding is a code unto itself and all questions must -be determined from the provisions of the law concerning such contest. [State ex rel. v. Spencer, 166 Mo. l. c. 285.] The jurisdiction to hear and determine a contest is not one of general jurisdiction possessed by courts having common law jurisdiction, but the tribunal and procedure are purely statutory. But for the provisions of section 9, article 8, of the Constitution, the Legislature could have had these contests adjudicated by tribunals other than courts of law. [9 R. C. L., sec. 148, p. 1158; State ex rel. v. Hough, 193 Mo. l. c. 645.] In this regard such section of the Constitution is a limitation upon the Legislature, and that body was compelled' to designate courts of law to determine contests, but this does not change the fact that the tribunals of law so selected are special tribunals, and operate under a code unto themselves.

Now to this code we turn to see if the court nisi has jurisdiction in this case.

III. By Section 5924, Revised Statutes 1909, the circuit courts of the State were designated as tribunals before which contests of the character of the one involved here should be heard. By Section 5928, Revised Statutes 1909, the proceeding for determining the contest is made' a summary one. But the contest about to be presented must be one within the statute, before this special tribunal possesses any power to act. To illustrate: a notice of contest duly served, must be filed with the clerk of such court, at some time prior to the date of the trial, before such court can be possessed of the cause. By possessed of the cause, we mean the power and right to determine it. A contestant might prepare his notice of contest in. due form, and might have it duly served in the method prescribed by our ruling in State ex rel. v. Robinson, 270 Mo. 212, and yet the circuit court would not have jurisdiction of that contest. The law requires more, not in specific language, but by our construction thereof. Thus in State ex rel. v. Hough, 193 Mo. l. c. 648, it is said: “And while the statute does not designate the time for the filing of the notice in the office of the clerk inasmuch as a copy of the notice containing all the grounds of the contest is served on the contestee, it would seem that the filing of the original with the clerk at any time before the 'commencement of the term, to which the contest is returnable, would answer all the requirements of the law.”

What we want, to emphasize is the fact that there is no way, earthly, by which the court can acquire jurisdiction of the particular contest (either-as to its subject-matter or the parties thereto) except by the filing of a legally served notice with the clerk of the court. When ’a legally served notice is filed with the clerk then the court for the first time becomes possessed of the contest. If.this were not true the contestant could change his mind about contesting the election and put his duly served notice in his pocket, and keep it there, and yet we would have a contest pending in court. This will not do.

Now if it requires the filing of something with the clerk to give the court jurisdiction of the subject-matter, as well as of the persons of a particular case, what must be the character of this “something1?” In an ordinary law suit the court grabs jurisdiction of the subject-matter of the particular suit, when the petition is filed, which petition invokes its jurisdiction. It gets jurisdiction of the person, on the one side, by the filing of the petition, and on the other by the service of a summons. ' Thus the jurisdiction of the subject-matter of the particular case, and the jurisdiction of persons interested therein, is made complete. But if no petition was filed, it would be foolish to say that the court had acquired jurisdiction of the subject-matter of that particular case, although it might have general jurisdiction of the cases belonging to the class. ■ Whether you call it jurisdiction or the invocation of jurisdiction, is immaterial. Certain it is the courts of law cannot try a ease before a petition is filed, and whether the filing of the petition is the ' thing which gives the jurisdiction ■ of the subject-matter of the particular case, or is the thing which invokes the general jurisdiction of the court, is a matter we need not discuss, for the purpose we now have in' view. It is clear that the court is powerless to act until a petition is filed.

With the foregoing ideas in mind let us now revert to Section 5924. Among other things this section says: “but no election of any such school directors, of any county, municipal or township officers, shall be contested unless notice of such contest be given to the opposite party within twTenty days after the votes shall have been officially counted.” The section then provides the manner of serving this notice, and in State ex rel. v. Robinson, 270 Mo. 212, we said that service must be by an officer of the court.

Under these statutes (which are a code unto themselves) and before this special tribunal, the process is this: the contestant prepares his notice ánd has it served, and then files this notice duly served, with the clerk of the court. When such an instrument is filed, the court for the first time becomes possessed of the contest. If no such instrument is filed, then the court never becomes possessed of the contest. Under this special code there is a condition precedent, which must be performed before the court can become possessed of the contest. This condition precedent is the filing of a duly served- notice of contest with the court or its clerk. If, as in the case at bar, under the ruling in State ex rel. v. Robinson, the contestant has never obtained service of a notice, how then can he meet -this condition precedent? If he filed a mere notice of contest, without any service, could it be said that the court had .acquired the right to determine such a contest? The thing which invokes the jurisdiction of the special tribunal for such cases is the filing of two things: (1) a notice of contest and (2) a certificate of due service of that notice. When these two things are filed the special tribunal acquires jurisdiction of the contest, i. e. the subject-matter of the proceeding, and not before. The jurisdiction of the special tribunal is not invoked until this is done. How can you waive a jurisdiction which has never been invoked?

My position is, that. under this special code, this special tribunal acquires no right to act until there is filed with its clerk a notice of contest, served within the time and in the manner prescribed by law. This because of the prohibition in the statute, which says “no election . . . shall be contested unless notice of such contest be given to the opposite party.”

The language of this prohibition upon these special tribunals is strong and emphatic. By its terms the hands of the special tribunals are stayed until the filing of such notice with legal service thereon. It requires the filing of both, before the stay of the statute is raised and the special tribunal is permitted by law to proceed. In the instant case there was no legal service (which is no service at all), and hence the notice of the contest and legal service thereof was not filed. Under such circumstances the circuit court has no more right to proceed than would a justice of the peace. The condition precedent to jurisdiction has never been met. It is not a question of waiving jurisdiction over the person, but is a question of whether the contestant has done the things pre-requisite to a contest at all.

IV. We have no quarrel with the proposition that jurisdiction of the subject-matter is conferred by law.' But what we do urge, is, that the power which confers by law the jurisdiction of subject-matter, has just as much right to limit this jurisdiction, as it has to grant it in the first place. And if the law-making power which granted the jurisdiction of subject-matter to these special tribunals chose to limit its exercise by imposing conditions precedent, it could do so. So it has done in this class of cases, and untijl the condition precedent has been met no jurisdiction of subject-matter is possessed by the tribunal. [State ex rel. v. Spencer, 166 Mo. l. c. 286.] The fact must not be overlooked that this is a special jurisdiction and a special tribunal under this special code. By this we mean that although it is a court with common law powers,’which is acting, yet its power to act had to be specially conferred by statute in contests of elections.

Nor have we anything to urge against the porposition that where general jurisdiction is conferred, then if the case belongs to the class, it is usually sufficient to confer jurisdiction of subject-matter in the specfic case. This is not always true, however. Thus circuit courts have jurisdiction to issue writs of prohibition, yet we have held that they may exceed this jurisdiction by trying to prohibit an executive board from acting in the impeachment of a city marshal. [State ex rel. McEntee v. Bright, 224 Mo. 514.] So, too, circuit courts have general jurisdiction to cancel deeds which cloud titles to land, yet we prohibited a circuit court from hearing a case to cancel such a deed when the land was not in Missouri. [State ex rel. v. Grimm, 243 Mo. 667.] So, too, circuit courts have general jurisdiction over action for damages, yet we would hardly hold that such an action would lie against the Governor of the State for an alleged failure to perform one of his duties. [State ex rel. v. Shields, ante, p. — .]

But the case at bar is-not in either of these categories. Here we have a special jurisdiction in a special forum under a special code. That it is a special forum is made more clear by the fact that in original contest proceedings in this court, a part of the judges and not all the court may be the forum.

Nor have I any quarrel with the rule of waiver as expressed in the cases of State ex rel. Folk v. Spencer, 164 Mo. 48, and State ex rel. Sale v. MeElhinney, 199 Mo. 67. The first of these cases involves a contest over the office of Circuit Attorney in St. Louis, and. the latter involves a contest over the office of circuit judge of the same city. In the matter of a contest for circuit judge the statute (Sec. 5957, R. S. 1909) requires the contestant to file a petition in court just as in ordinary civil actions. Summons must issue as in other actions. Answer must be filed, as in ordinary actions. Thus it will be seen that the procedure is entirely different from the one in the case at bar. The jurisdiction of the subject-matter is invoked by the filing of the petition, and this particular jurisdiction of the subject-matter of this kind of a contest, is complete, although no service of summons bei had. As long as the petition remained on file, and the case was not dismissed, the jurisdiction of the subject-matter, i. e. that contest, was there. Of course it would require the jurisdiction of the person, and This .could be waived, by the party coming in and doing things which amount to a waiver of jurisdiction of person.

So,. too, in contests over the 'circuit attorney’s office in St. Louis. By Section 5965, Revised Statutes 1909, these contests must proceed ais those for circuit judge. But these cases are not like the case involved in the instant case. The procedure is altogether different. Those cases have the same course (filing petition, issue and serving of summons and filing answer) as ordinary civil actions. The question of waiving personal service in such cases would be just as.in-the regular civil case.

The case of State ex rel. v. Oliver, 163 Mo. 679, cited by my brother, does contain some language which gives aid to the question of alleged waiver in this case, because in that case (a case in prohibition here) the prohibition proceeding grew out of a contest for a county office. When the case is fully read, we think it no authority. There was no special point qiade in the opinion- on this matter, but it seems- to have been a casual outburst of the judge writing the opinion. On page 690, Judge Sherwood did say: “Upon this order hinges the proper disposition of this cause, because it is thought that James K. Young’s appearance as contestee before the clerk of the circuit court, and filing a motion to require his opponent to give security for costs and also his motion to make Oliver’s notice of contest more definite and certain, were such appearances as cured a defective service if there was any. [State ex rel. Lemon v. Board, 108 Mo. 235.] Besides that, Young appeared before the county clerk and filed a counter notice of the contest.” The whole fight in that case was upon other matters and this language of the learned jurist seems to have been by the wayside. But the case he cites for support (State ex rel. Lemon v. Board, 108 Mo. 235) is not a contested election at all, and is and was no authority whatever for the side remarks above quoted from Judge Sherwood.

On the contrary in a contested election for sheriff (Castella v. Ceri, in the circuit court of St. Louis) Judge Lackland, the circuit judge, ruled that the service of a counter notice of contest did not waive jurisdiction (Vide, Castello v. St. Louis Circuit Court, 28, Mo. l. c. 265), and this ruling was approved by this court (Castella v. St. Louis Circuit Court, 28 Mo. l. c. 274, et seq.), wherein we refused to mandamus the circuit court to proceed, the very thing we are asked to do in this ease. This case is exactly in point in cases involving contests of county officers.

When it is recalled that contests of elections are special proceedings, under a specially created jurisdiction, with a specially provided code, we are forced to the conclusion that á duly and' legally served notice is jurisdictional. [State ex rel. v. Spencer, 166 Mo. l. c. 286.] County courts are given jurisdiction to hear and determine road cases, but the procedure calls for a certain notice. In that line of cases we have held (Railway v. Young, 96 Mo. l. c. 42) that: “The fact of notice having-been given in the mode pointed out by the statute, is as much a jurisdictional prerequisite as is the residence of the statutory number of' petitioners. If either be lacking, the jurisdiction fails, and for the- obvious reason that such proceedings, being in invitwn, in derogation of common' law and common right, are always regarded as strictissimi'juris, and receive no help from intendments or implications, and so this court has repeatedly held.”

So in the ease at bar. The proceeding is one unknown to the common law. The certificate of election (a valuable right) is being taken. The proceeding a special one, and summary in character, before a special tribunal named in the special code provided for the conduct of the proceeding- — we therefore reiterate what we said in State ex rel. v. Robinson, that without notice of a contest duly and legally served, within the time prescribed, the circuit court (the special tribunal in this class of contests) was absolutely without jurisdiction and such jurisdiction could not even be given by consent. For these reasons we dissent.

Blair and Williams, JJ., concur in these views.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    JENNIE W. BENNETT et al., Appellants, v. THOS. L. WARD.
    In Banc,
    December 22, 1917.
    1. DELIVERY OF DEED. Where the scrivener, at "grantor’s direction, took the deed, drawn according to her instructions, from her residence and delivered it to the grantee and he doposited it in a bank, where it remained until her death, and immediately thereafter grantee appeared with it at th- Recorder’s office and left it with him for record, the deed was uelivered to the grantee.
    2. CAPACITY TO MAKE DEED. If the grantor had sufficient mental capacity to understand the nature of the particular transaction and with such understanding voluntarily entered into it and consummated it by making a deed, she was not at the time mentally incapable of making the deed.
    3. -: Use of Morphine: Cancer. The fact that the grantor, a woman of more than ordinary intelligence and business' ability and understanding the reciprocal obligations assumed by the grantee in consideration of the conveyance, was at the time afflicted with cancer and occasionally was given morphine to. relieve her suffering, but in no wise rendered irrational either by the disease or opiate, does not establish mental incapacity to malte a deed conveying to her brother her home place.
    4. UNDUE INFLUENCE: Power to Arbitrarily Dispose of Property. The owner of property has unlimited power to alienate it by deed or will, if the act is understandingly done and is free frcm coercion, fraud, mental incapacity and undue influence; and this power of arbitrary disposition of a capable and uninfluenced person pertains to absolute ownership, and may be reflected in deeds or wills exhibiting the loves, hates, partialities or caprices of the grantor or testator, which of themselves are not sufficient reasons for annulling the instruments.
    5. -: Meaning. By undue influence is meant that the conveyance when made did not reflect the grantor’s wishes and intentions, but the designs and intentions of some one who controlled the grantor’s acts.
    6. -: Preference Among Kindred. The intention of a childless aged widow to prefer a brother to two sisters in the disposition of her real estate, deliberately and clearly expressed in the deed, is not sufficient to defeat, the conveyance, in the absence of evidence that the reason for the preference was extraneous domination of her mind;
    7. -: Fiduciary Relation: Presumption: Acts of Kindness. The facts that the childless widow, upon being informed by physicians that she was afflicted with cancer which would soon end her life, not wishing to go to a hospital, went to her brother’s home and it was there decided that his two daughters would take her to her own home and care for her through her illness, which they did until her death a year later, and that the last three weeks of her life her brother was with her constantly and assisted her in some business transactions which she was unable to attend to, being acts of affection and kindness, do not suffice to create such a fiduciary relation as afford a just basis for a presumption of undue influence on the part of the brother, who was the grantee in the deed made in his absence three months prior to her death, by which after making gifts for the support and education of some minor step-grandchildren, she conveyed, in consideration of his many uncompensated acts of kindness and an agreement that he was to care and provide for her until her death, her real estate to him, to the exclusion of her two married sisters.
    8. ■-: Cogent Proof. In a suit to set aside and annul a deed between competent parties, absent any legal presumptions, the same degree of proof must be adduced as is prescribed by courts of equity when such a conveyance is sought to be annulled or its terms altered by oral evidence.

      Appeal from Bates Circuit Court. — Eon. G. A. Calvird, Judge.
    AeeIBMED

      B. M. Robertson and Faulhe & Brown for appellants.
    (1) The existence of undue influence may be shown from the relationship and surroundings of the parties at and previous to the time; the nature and character of the contract, and any unreasonable and unfair advantage secured by it. It devolves upon the respondent to show "an honest and fair deal” in every -respect. Kirsehner v. Kirschner, 113 Mo. 297; Martin v. Baker, 135 Mo. 504; Eñnis v. Burham, 159 Mo. 518; Gay v. Gillilan, 92 Mo. 251; Harvey v. Sullens, 46 Mo. 152; Mc-Faddin v. Catron, 120 Mo. 273. (2) The evidence and physical facts in this case show that Nannie Mace was completely in the hands of, and under the control of, in body and mind, her brother and his family, at the time of the making of this deed; and was not capable of measuring minds with him in the preparation and execution of a contract of this character. For more than a year before she had been afflicted "with cancer in every organ; the womb, liver, breast and lungs; the hospital surgeon, after ‘an examination, refused to operate, and says she only has about three months to live.” Reason tells us there could be no greater physical and mental pain and suffering than her condition from that time until the day of. her death was bound to produce; and this deed in question could not have been her "voluntary act and deed” in her condition and under the surroundings. Heimeyer v. Heimeyer, 259 Mo. 534; Cornet v. Cornet, 248 Mo. 184; Kincer v. Kincer, 246 Mo. 419. (3) The physical facts as shown by the condition of Nannie Mace, at the time this deed was executed ; her letters, the two wills, and the peculiar wording and reasons given for its execution in the face thereof, shown" conclusively .that there was some undue influence at work at the time of its execution. It matters' not what witnesses may testify to in this case, Nannie Mace’s great affliction and dependent position, coupled wi’h these instruments in writing, tell the whole story; she was unduly influenced, if she knew it at all. It was not her mind framing these strange phrase as an excuse for making this deed as shown in the face thereof; it is- unreasonable; it is not her free act and deed. Jones v. Belshe, 238 Mo. 524-540; Yosti v. Laughran, 79 Mo. 594; McClure v. Lewis, 72 Mo. 314; Hall v. Napenberger, 97 Mo. 509. (4) The physical condition of Nannie Mace from August 31, 1911, until her death on September 14, 1912, was as pitiable and helpless and dependent as can be imagined. She was stricken with “cancer of the ovaries,” which for more than a year before the making of this deed had spread and entered all the most vital and sensitive organs of her body. All know that ailments of this character affect the mind, to some extent at least; and if this be true, then Nannie Mace’s mind and will power was not in a condition to meet on equal terms the mind and will power of respondent in this case in a contract giving him every foot of real estate she owned. 2 White & Tudor’s Leading Cases in Equity, p. 1156; Cadwalader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; Martin v. Baker, 135 M‘o. 504; Gay v. Gillilan, 92 Mo. 250. (5) The past history of all the parties to tins suit, the helpless and dependent condition of Nannie Mace in the hands of respondent and his family, taken in connection with the peculiar wordings of this deed, in explaining why it was made, show conclusively some undue influence, and that it was -btained by fraud. This deed “convicts itself.” It spells “fraud” in many places. Major v. Kidd, 261 Mo. 618. “All these things point to a. master mind.” Mowry v. Norman, 204 Mo. 192; Roberts v. Bartlett, 190 Mo. 701; Myers v. Hauger, 98 Mo. 438. “When we consider the assiduous care used in order to make it appear to be her own free act, we are irresistibly forced to the conclusion that the attorney was acting in the interest of the defendant in carrying forward their purpose in securing this property.” Martin v. Baker, 135 Mo. 509. The record in this case clearly shows that the deed in question was never delivered. Scott v. Scott, 95 Mo. 319; Huey v. Huey, 65 Mo. 689; Sneathen v. Sneathen, 104 Mo. 209; Givens v. Ott, 222 Mo. 395; Murphy v. Gabbert, 166 Mo. 601; Standiford v. Standiford, 97 Mo. 231; Terry v. Glover, 235 Mo. 550.

      W. M. Bowher and Lee B. Ewing for respondent.
    (1) The finding of the trial court in this case is absolutely correct. There is no testimony to base a finding either that the grantor in the deed, Mrs. Mace, was of unsound mind, or had been induced to execute the deed by reason of undue influence on the part of Thomas L. Ward. Jones v. Thomas, 218 Mo. 508; Teckenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 83; McDermott v. Keesler, 240 Mo. 278; Wing v. Havelik, 253 Mo. 502; Lee v. Lee, 258 Mo. 599; Winn v. Grier, 217 Mo. 440; Turner v. Anderson, 236 Mo. 523; Gibony v. Gibony, 230 Mo. 106; Current v. Current, 244 Mo. 429. (2) Influence which is obtained over a party by kindness or affection so as to create a desire on the part of the party in favor of one to the exclusion of some one else, is not undue influence. Andrew v. Linebaugh, 260 Mo. 623; Turner v. Anderson, 236 Mo. 523; Seibert v. Hatcher, 205 Mo. 83. (3) Old age and sickness do not, in and of themselves, constitute incapacity to transact the business of devising or conveying lands. Lee v. Lee, 258 Mo. 599. (4) The fact that a daughter took a deed from her father, who was seriously afflicted with consumption and asthma, to lands worth $1500, upon the agreement to furnish him a home and give him personal attention during his life, was not any fraud, altho he was living with said daughter at the time; neither did any such circumstance create any fiduciary relations so qs to raise a presumption of undue influence; and in such case it is held that there was no evidence tending to show the exercise or existence of undue influence, and that the deed could not be set aside on any such ground — and that courts sit to enforce fair and just contracts — not to abrogate them. Lee v. Lee, 258 Mo. 599. (5) The influence exercised upon a party sufficient to invalidate a deed or a will, must be of such a nature and character as amounts to over-persuasion, coercion or force, destroying his free, agency or willpower, as contradistinguished from the mere influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected and trusted by him. Unequal distribution of property among one’s kin is not sufficient to- establish undue influence. Winn v. Grier, 217 Mo. 420. (6) Even though the mind of a party be weakened by disease, there must be substantial evidence that the influence of another operated and was undue to shape the will or deed before it can be held to be void because.of undue influence, and it must be proven that such- influence was exercised. Turner v. Anderson, 236 Mo. 523. (7) There was a good delivery of the deed in this case. Givens v. Marbutt, 259 Mo. 223; Seibert v. Highan, 216 Mo. 12-1; Chambers v. Chambers, 227 Mo. 262.
   BOND, J.

This action is to set aside a deed conveying certain real estate in and near Stockton, Missouri, on the alleged grounds of non-delivery of the deed, mental incapacity of the grantor and undue influence.

On September 14, 1912, the grantor in the deed, Nancy Mace, a widow, died at the age of sixty-two years, leaving no children, her heirs at law being two sisters, Jennie Bennett, a resident of Texas, Mary Tyler and a brother, Thomas L. Ward, both residents of'Missouri.

On September 27, 1911, a year before her death, Mrs. Mace executed a second will, substantially the same as one previously drawn, except that after making provision for the education of two step-grandchildren, a' bequest to Mrs. Tyler of one dollar and certain small bequests, she gave the annual income of the residue of her estate to Mrs. Bennett and Thomas L. Ward, during their lives, with provision that if the latter died before Mrs. Bennett, his share should go to his wife, with remainders over to certain specified persons.

In August, 1911, Mrs. Mace became ill and upon examination by surgeons at .Kansas City, was informed that sb'e was suffering from cancer, which would end her life in 'a short time. From Kansas City she went to the home of her brother, Thomas L. Ward, the defendant herein, and it was then decided, as she did not want to go to a hospital, that her nieces Nannie and Corolla Ward would take her to her own home and care for her through her illness. When she reached her own home, Mrs. Mace requested her niece to write, advising her sister Mrs. Bennett of the seriousness of her illness and inviting her to come to Stockton to see her. Mrs. Bennett came, and it appears from the testimony in the record (denied by her) that soon after her arrival she' expressed her dissatisfaction with Mrs. Mace’s will, that she was not made executrix thereof, and hinted at various times that Mrs. Mace was mentally irresponsible. She finally quarreled openly with Mrs. Mace .and left for her home in Texas. However, thereafter Mrs. Mace, through her niece, wrote several friendly letters to her. It further appeared, from a letter written by Thomas Ward to his sister Mrs. Bennett, after the' death of Mrs. Mace, that some ill-feeling existed between them.

On June 24, 1912, Mrs. Mace executed a general warranty deed to all of her real estate to her brother, Thomas L. Ward. The consideration in the deed was an agreement by the grantee to pay a certain sum to the grantor’s two step-grandchildren until they became of legal age; to pay a certain sum to Mrs. Bennett upon condition she receipted in full for her interest in Mrs. Mace’s estate, with the further agreement that Thomas Ward was to care and provide for Mrs. Mace until her death.

The deed also contained this clause:

“The grantee herein, T. L. Ward, is my brother. In years past I have shared and enjoyed his home and received substantial and valuable assistance from him, for which he has received no moneyed compensation; during the last year he has'attended to my business affairs, and his family have faithfully and affectionately cared for and nursed me during my protracted illness within that time, and these considerations have influenced me, together with the foregoing expressed considerations, in the execution of this conveyance.”

This deed was drawn by a Mr. Bannister, of Eldorado Springs, at the request of Mrs. Mace, who in-, structed him, after it was signed and acknowledged, to deliver it to her brother, Thomas L. Ward. The deed was duly delivered and Mr. Ward left it for safe-keeping at his bank at Eldorado Springs. After the death of Mrs. Mace the deed was taken to the Recorder’s office and placed of record. This action was brought to set the deed aside. Judgment was for defendant and plaintiffs appealed.

,11. There are only .three questions which could possibly arise in this record: first, the contention by appellants that the deed, which it is the object 0f -j^g giait ‡0 annul, was never delivered by the grantor to the grantee; second, that the grantor at the time of the execution of the instrument was mentally incapable of entering into a contract ; third, that the deed was made as the result of undue influence upon the mind of the grantor at the time of its execution.

Taking these in order, the evidence as to the delivery of the deed is clear and complete. The scrivener who prepared it and witnessed the acknowledgment as a notary public, left the residence of the grantor with the deed in his pocket and delivered it to the grantee at Eldorado Springs. His testimony is clear, explicit and full as to these respects. The testimony of two bankers is to the effect that the grantee brought the deed into the bank of which they were officers, and deposited it there. As against the positive testimony of these witnesses, there is none of a contrary nature other than inferences sought to be drawn from the evidence tending to show that immediately after the death of the grantor, the grantee and his daughter who carried a black bag, appeared at the Recorder’s'office and the deed was taken out of the bag and handed to the Recorder and its filing duly noted. In these circumstances we must find that the claim of appellants that the deed was not delivered is unsupported by the testimony on the hearing. Our conclusion is that the delivery of the deed and its acceptance by the grantee was not disproved by the evidence, and that plaintiffs have failed to establish that contention as a basis for their suit to annul the deed. [Schooler v. Schooler, 258 Mo. l. c. 91, 92, and cases cited; Burkey v. Burkey, 175 S. W. l. c. 624, and cases cited.]

III. As to the second point, incapacity of grantor, there is an utter failure of proof on the part of the plaintiffs ■ (appellants) to establish that contention. On the contrary, the whole tenor of the testimony demonstrates that the grantor, Mrs. Mace, was a woman of more than ordinary intelligence and business ability, and there is nothing in the evidence which tends to show a want of comprehension on her part of the nature and effect of the deed when executed. The only basis for the inference attempted to be drawn in support of this contention, is the fact that she was suffering from a cancer and occasionally was given morphine to relieve her suffering. There is no hint in the testimony that she was rendered irrational either by her disease or its treatment, or that she was lacking in mental capacity to understand the reciprocal obligations assumed by the grantee in consideration of the conveyance of the property to him. On this point the rule is, as stated by Walker, J., with reference to both deeds and wills, viz: “Did the testator or the grantor have sufficient mental capacity to understand the nature of the particular transaction and with such understanding voluntarily enter into and consummate.the same?” [Masterson v. Sheahan, 186 S. W. 524.] Applying this test there is no evidence whatever in the record of a lack of capacity on the part of Mrs. Mace when she executed and delivered the deed.

IV. The only remaining inquiry is whether or not she was unduly influenced when she wrote the deed. The owner of property has unlimited power to alienate it by deed or will, if the act is understandingly done and is free from coercion, fraud or lack of mentality or undue influence. This right of arbitrary disposition of a capable and uninfluenced person is a corollary of absolute ownership of property, and may be, and often-is, reflected in deeds or wills exhibiting the loves, hates, partialities or caprices of the testator or grantor, which cannot be annulled for these reasons only. [Hayes v. Hayes, 242 Mo. l. c. 169, and cases cited.] The deed under review shows the purpose of the grantor to prefer a brother to two sisters in the disposition of her real estate. The intent to do this was deliberately and clearly expressed in the instrument. Such purpose, however, is not sufficient to defeat the deed in the absence of any evidence in the record, that the reason for the preference was extraneous domination of the mind of the grantor to the extent, that when the conveyance was made, it reflected not her intentions or wishes, but the different designs and intentions of some one who controlled her action. For this is what is meant by undue influence (Hayes v. Hayes, supra, l. c. 169; Masterson v. Sheahan, 186 S. W. l. c. 526, par. II), as to the existence of which there is a complete dearth of positive testimony.

It is, however, contended by the learned counsel for appellants, that the record and the terms of the deed disclose a fiduciary relation on the part of the grantee, which afforded a basis for a legal presumption of undue influence, which was unrebutted by the evidence adduced on the trial-. A careful examination of the terms of the deed and other relevant testimony in the record, fails to satisfy us of the existence of such a fiduciary relation on the part of the grantee and the grantor as to afford any just basis for the presumption of undue influence. Shortly before her death the two daughters of her brother, defendant Ward, left their home and went to Mrs. Mace’s home to care for her during her illness, and the last three weeks of her life her brother was with her constantly and doubtless assisted her in some business transactions which she was unable to attend to as had been her custom before her affliction developed. We see nothing in these mere offices of affection and kinship which suffice to make presumptively invalid any recognition thereof by the recipient in the disposition of her property. She appears to have been an educated woman, intelligent and normal in' her ways of life and sensitive to offices of kindness. We see nothing unnatural in a disposal of her estate evidencing her appreciation of the attentions and assistance which she received from her brother and his family during her last illness. That she had this thought in mind is clearly shown by the recitals of the deed as to considerations for it.

It must be borne in mind that this is an action to set aside and annul a conveyance by deed between competent parties and that, absent any legal presumptions, the same degree of proof must be adduced in support of such an attack as is prescribed by courts of equity when the terms of such conveyance are sought to be altered or the conveyance annulled by oral evidence. . [Burkey v. Burkey, supra.]

Having reached the conclusion that no sufficient fiduciary relation existed to afford an inference of undue influence, and being unable to find in the entire record any evidence otherwise sufficient to invalidate it, there is no escape from the conclusion that the judgment of the trial court is manifestly correct and should be affirmed. It is so ordered.

All concur, except Williams, Jwho dissents.


author: WALKER, J.

text:
    CITIZENS TRUST COMPANY and PEMISCOT COUNTY BANK, Appellants, v. A. C. TINDLE et al.
    In Banc,
    December 22, 1917.
    1. PARTIES PLAINTIFF: Suit on Bank Bond: Assignee. An assignee of all the assets, including choses in action, claims and demands, due or to become due the assignor, to be collected by the assignee and applied to the use of the assignned, is authorized to sue ón a bond given by an employee of the assignor as a guaranty of efficient service, since such assignment constituted the assignee the trustee of an express trust.
    2. _: -: -: Misjoinder of Parties. Nor did such assignment and statutory authority to sue preclude the assignee from joining the assignor as a party plaintiff in the action on the bond, as one “having an interest in the subject of the action.”
    3. BANK: Assignment to Trust Company: Statute. The statute (Sec. 1084, R. S. 1909) does not prohibit a bank from assigning its assets to a trust company to liquidate its affairs and effect its retirement from business. On the contrary, it encourages such course, as an appropriate agency for carrying out the purpose, in an expeditious and inexpensive way, beneficial to both creditors and stockholders.
    4. -: -: -: Improper Plaintiff: Pleading. To authorize the sureties on the bond of a cashier to interpose the defense that an assignment by a bank to a trust company for the purpose of liquidation was unlawful because the statute requires the Bank Commi: sioner to take charge of a bank in a “failing condition” and forbids such a bank to “make a voluntary general assignment,” it develops upon them when sued on the bond to plead it. The point that a petition, alleging that the plaintiff trust company is the assignee of all the assets of the bank, show's on its face that such company is an improper plaintiff, cannot be sustained upon a demurrer thereto.
    5. BOND: Ambiguity: Aliunde Interpretation. The bond given by a cashier of a bank for efficient service constitutes a contract, and as such is subject to the rules of interpretation applicable to other contracts. If it be ambiguous, the court will look, not merely to its terms, but to its subject-matter, the circumstances attending its making and the interpretation given it at the time by the parties themselves; but if it be not ambiguous, resort to these extraneous matters is not permitted, and being clear in its terms it will, as to accommodation sureties, be strictly construed.
    6. -:-: Obligation Against Mistakes But Not Against Peculations. The bond of the cashier of a bank read that if he “shall well and faithfully perform all duties as such cashier” of said bank “the above named and undersigned sureties hereby agree to hold said bank harmless for any loss occasioned by any act of such officer until all of his accounts with such bank have been paid.” Meld, not to be ambiguous, and while not such a bond as is required by the statute, is neither meaningless nor unauthorized, nor preclusive of the taking of a statutory bond, but is an obligation against inadvertence or honest mistakes and as such is binding on the sureties, but it does not cover the cashier’s peculations and thefts; and the rules of construction, which require that as to accommodation sureties, a bond must be strictly construed and their liability limited to its exact words, forbid the insertion or elimination of words that would render it a statutory bond.
    Appeal from Pemiscot' Circuit Court. — Hon. Frank ' Kelly, Judge.
    Affirmed.

      Shepard & Reeves and Oliver & Oliver for appellants.
    (1) Our statute provides that every action shall he prosecuted in the name of the real party in interest. The Citizens Trust Company, as assignee, has am interest in the bond. Sec. 1729, R. S. 1909; Waterman v. Prank, 21 Mo. 111. (2) There is nothing in section 1084 that prevented the Pemicost County Bank from doing what it did do, in assigning certain assets and choses in action to its co-plaintiff, the Citizens Trust Company. Section 1084 prohibits a bank that is “receiving deposits” from making a “general assignment of its business and affairs.” There is nothing in this petition that can be tortured into an averment that at the time the Pemiscot County Bank assigned certain assets and choses in action to its co-plaintiff, it was “receiving deposits.” Nothing of that kind appears anywhere in this petition. The prohibition in the statute is leveled against a bank “receiving deposits” from making a general assignment of its business and affairs. No such state of facts is pleaded in this petition. On the contrary, the petition, in the most direct and positive way, states the purpose of the assignment —to liquidate. Therefore the Citizens Trust Company had the right under the circumstances detailed in this petition,, to take and hold by assignment the bond executed by these appellants and to enforce its payment in this suit. (3) The “general assignment” mentioned in Section 1084 is the assignment mentioned in Chapter 8, Section 896 et seq., R. S. 1909. A bank “receiving deposits” is prohibited from making, that kind of an assignment. Sees. 896, 1084, R. S. 1909. (4) Moreover it does not lie in the mouth of these defendants to raise that question. If the Pemiscot County Bank has violated its charter the State alone has the right to complain. Goodland v. Bank, 74 Mo. App. 376. (5) Sec. 1112, R. S. 1909, provides that “the president, cashier, assistant cashier, or any other .officer, upon whom the powers of cashier may be imposed by the board of directors, before entering on the duties of their office, shall give good and sufficient bonds, which shall be approved by the board of directors, in writing . . . conditioned that they will well and faithfully perform all the duties of their office, and that they will hold the bank harmless for any loss occasioned by any act of such officer, until .all his accounts with the bank shall have been fully settled and satisfied.” (6) The phrasing of the bond sued on shows a clear intention on the part of the respondents to comply with Section 1112. It was their purpose to comply with that provision of the statute. They evidently believed they had complied with the provisions of the statute,- and the board of directors of the bank evidently believed that the bond tendered contained the statutory conditions required’ in such a bond. Both sides acted upon the assumption that the bond-was regular and the conditions required by the statute were perfectly expressed. The bank examiner eyidently thought so as well as the board of directors. The caséis made to turn upon this question: “What was the intention of the parties as disclosed by the instrument, read in the light of the surrounding circumstances?” Reason and authority support appellants’ contention that the writing sued upon was intended as a bond. . Lionberger v. Krieger, 88 Mo. 165; Brandt on Suretyship, sec. 80; Be.ers v. Wolf, 116 Mo. 184; Gleason v. Railway, 112 Mo. App. 116; Westervelt v. Mohrenstecher, 34 L. R. A. 479; 5 Cye. 753, 755; Richmond v. Woodard, 32 Yt. 833; Belch v. Miller, 32 Mo. App. 387; Zellars v. Surety Co., 210 Mo. 104. (7) A bond is nothing but a written contract. The rule for the construction of contracts which prevail over all others, is that the court may put itself in the place of the contracting parties ; may consider, • in view of all the facts and circumstances surrounding them at the time of the execution of the instrument, what they intended by the terms' of their contract,, and when their intention is manifest, it must control in the interpretation of the instrument, regardless of inapt expressions or mere technical rules of construction. Westervelt v. Mohrenstecher, 76 Fed. 121; B. & L. Assn. v. Obert, 169 Mo. 515; Caldwell v. Layton, 44 Mo. 222; Kansas City v. Youmans, 213 Mo. 151. (8) The omission of the scrivener to insert the word “not” between the words “shall” and “well” in the first line of the last paragraph of the bond (describing the conditions upon which the .sureties are liable) gives rise to this suit. Without the word “not” having been written. or ■ intended to have been written, there would h'ave been no occasion whatever for the sureties on the bond to have signed it. 5 Cye. 755.

      W. M. Fit oh, Assistant Attorney-General, and J. P. Gilmore, Amici Curiae.

    (1) The bond in suit is a statutory bond required by law of all persons who assume the right to act as cashier of a banking corporation in Missouri. Sec. 1112, R. S. 1909; Jones v. Newman, 36 Hun, 634. (2) Where parties have entered into a bond required by law, and the bond is sufficent to show a clear intent on the part of such bondsmen to create the obligation provided in such cases by law, then the obligation is consummated, even though it be necessary in reading said bond to omit some word or to suppress some word in the obligation to fully and clearly express such intent. Sizemore v. Morrow, 6 N. C. 54; Gully v. Gully, 1 N. C. 20; Jones v. Newman, 36 Hun, 634; Pratt.v. Wright, 13 Grat. (Va.) 175; Kincannon v. Carroll, 9 Yerg. (Tenn.) 11; Hotel Co. v. Encampment Co., 140 111. 248; Monmouth Park Assn. v. Iron Works, 55 N. J. L. 132; Bettman v. Harness, 42 W. Va. 433; Probate'Judge v. Ordway, 23 N. H. 198; Swain v. Graves, 8 Cal. 549; Zellars v. Surety Co., 210 Mo. 86; Hoshaw v. Gullet, 53 Mo. 86; Graves v. McHugh, 58 Mo. 499; Flint ex reí. v. Young, 70 Mo. 221; State to use v. Berry, 12 Mo. 377; Newton v. Cox, 76 Mo. 352; Wimpey v. Evans, 84 Mo. 144. (3) “It is a rule of construction that the promisor is bound according to the sense in which he apprehended that the promisee received his proposition.” Counts v. Medley, 163 Mo. App. 546; Bruner v. Wheaton, 46 Mo. 363. (4) “It has been settled since an early day in this State that common sense and good faith are the leading characteristics of all interpretations.” Counts v. Medley, 163 Mo. App. 546; Fenton v. Perkins, 3 Mo. 23. (5) “Where there is room for construction, a contract should not be interpreted so as to give an unfair advantage to one of the parties to it over the other.” Counts v. Medley, 163 Mo. App. 546; McManus v. Fair Co., 60 Mo. App. 216; Lumber Co. v. Dent, 151 Mo. App. 614. (6) Where one construction will destroy a contract and another construction will make it valid, and the party trying to destroy the contract is the party giving, it, and who wrote it, then the court should so construe the contract as to be valid. 9 Cye. 586, and note 36; Ferry Co. v. Railroad, 128 Mo. 224. (7) Where the contract contains no specific provision on a given point, or its terms are ambiguous, the construction placed upon the contract by the parties to it will control. Ins. Co. v. Dutcher, 95 U. S. 269; Reed v. Ins. Co., 95 U. S. 23; District of Columbia v. Gallagher, 124 U. S. 527; Jones v. De Lassus, 84 Mo. 541; Gas Light Co. v. St. Louis, 46 Mo. 121; Rose 'v. Carbonating Co., 60 Mo. App. 28; Mathews v. Danahy, 26 Mo. App. 660; Depot” Co. v. Railway, 131 Mo. 291; Work v. Welch, 160 111. 468; Street v. Storage Co., 157 111. 605; Mohr v. McKenzie, 60 HI. App. 575; 2 Page on Contracts, secs. 1126-1127; 9 Cye. 588; Sattler v. ITallock, 160 N. Y. 291; Vincennes v. Light Co., 132 Ind. 114; Robbins v. Kimball, 55 Ark. 414; Katz v. Bedford, 77 Cal. 319; Railroad v. Anderson, 11 Colo. 293; Brigham v. Ross, 55 Conn. 373; Pratt v. Prouty, 104 Iowa, 419; Mitchelí v. Wedderburn, 68 Md. 139. (8) The legal effect of a contract or bond does not depend upon its being punctuated correctly. 2 Page on Contracts, sec. 1124; Ketcham v. Spurlock, 34 W. Va. 597; Homer v. .Ins. Co., 98 Fed. 240, 39 C. C. A. 45. (9) In ease this court should hold the bond in suit insufficient as a statutory bond then the court must hold it good as a common-law bond. State ex rel. v. ‘O’Gorman, 75 Mo. 370; Grant v. Brotherton, 70 Mo. 458; Waltermann v. Frank, 21 Mo. 108; State ex rel. v. Sappington, 67 Mo. 529. (10) The rights of the sureties are not changed by the construction of the bond contended for by appellants. (11) Where an obligation has been created, then the law will put it beyond the power of the party who assumes the obligation to avoid it. Page v. Cook, 28 L. E. A.' 759'; McCarty v. Howell, 24 111. 341; Harlow v. Boswell, 15 111. 56; Eaton v. Yarborough, 19 Ga. 82; Lewis v. Tipton, 10 Ohio St. 88; Crooker v. Holmes, 65 Me. 195; Walters v. MeBee, 1 Lea (Tenn.), 364.

      Ward & Collins and John E. Kane for respondents.
    (1) The Citizens Trust Company, as assignee, is improper party to this suit. “Every” action shall be prosecuted in the name of the real party in interest.” Sec. 1729, E. S. 1909; Dickey v. Porter, 203 Mo. 24; Citizens Bank v. Burris, 178 Mo. 73; Van Stewart v. Miles, 105 Mo. App. 246. Here the suit was brought first as the liquidating agent, but a suit in this State cannot be brought in the name of an agent or trustee. Draper v. Faris, 56 Mo. App. 419; Furniture Co. v. Eadditz, 28 Mo. App. 213. (2) There is nothing in the petition to show any authority in Pemiscot County Bank to bring this suit, but the petition shows that the Citizens Trust Company had the legal title, but that showing is contrary to law, so there is a misjoinder of parties plaintiff, and this misjoinder of parties plaintiff must be taken advantage of by demurrer when it is shown on the face of the petition as in this case. Sec. 1800, E. S. 1909; Fulwider v. Trenton Gas Co., 216 Mo. 582; Daugherty v. Burgess, 118 Mo. App. 557; Taber v. Wilson, 34 Mo. App. 94; Eagan v. Eailroad, 111 Mo. 456; 5 Cyc. 823-824. “Where there are several joint owners of property they should all join or he joined in an action, hut where the whole title is in one party it is a misjoinder to make other parties who have no interest in the subject-matter parties plaintiff.” Walker v. Lewis, 140 Mo. App. 31; Little v. Harrington, 71 Mo. 390; Butler v. Boynton, 117 Mo. App. 462; Stewart v. Grader, 105 Mo. App. 247. “A mis joinder of parties plaintiff is cause for demurrer.” Akins, v. Hicks, 109 Mo. App. 99. (3) Section 1081 does not authorize the assignment pleaded in this petition to the Citizens Trust Company as liquidating agent. (4) Section 1084, B. S. Mo. 1909, prevents banks from making general assignments, and does apply to this bank. Keaton v. Jorndt, 220 Mo. 117. There is nothing in the petition to show that the alleged assignment of all the Pemiscot County Bank’s property was at a time when the bank was not receiving deposits. (5) Appellant contends that nobody can take advantage of this illegal assignment except the State. There can be no reason, rule or authority for that statement. The plaintiff • must show some authority in itself to institute an action and that authority must be shown in the petition. (6) If there are two constructions that can be given to the bond then there is some room for construction by the court, but in this bond there are no two constructions that can be given to it. If the bond is ambiguous, then the court calls upon the surrounding circumstances to interpret what is meant by its ambiguity. Of course, the intention of the parties must be looked to in every bond; but the intention of the parties must be gathered from .the instrument itself and appellant cannot go outside and uphold this instrument as binding upon a theory not expressed in the bond because the board of directors believed that the bond was a statutory bond or because the bank examiners thought the bond different from what it was. The law is that the “sureties stand upon the narrow domain of restricted liability and point with unshaken confidence to the strict letter of his contract.” Lionberger v. Krieger, 88 Mo. 160; Gleason v. Bailway, 112 Mó. App. 117; Westervelt v. Mohrenstrecher, 34 L. B. A. 477. “Sureties are favorites of the law and have the right to stand upon the strict terms of their contract.” Brant on Suretyship, sec. 97; Bayliss on Sureties, 144, 145, 260; State ex rel. v. Smith, 173 Mo. 406; Hill v. Keller, 157 Mo. App. 717; State v. Madery, 17-Ohio, 565; Nofsinger v. Hartnett, 84 Mo. 552. Respondents contract here that they would hold the hank harmless if Tindle would well and faithfully perform all his duties as cashier. See Nofsinger v. Hartnett, 84 Mo. 552. This case has been quoted and approved by the following cases and many others: Lionberger v. Krieger, 88 Mo. 160; State ex rel. v. Smith, 173 Mo. 398; Hill v. Keller, 157 Mo. App. 710; State ex reí. v. May, 160 S. W. 1030; Utterson v. Elmore, 154 Mo. App. 646; Reissaus v. Whites, 128 Mo. App. 143; Martin v. Whites, 128 Mo. App. 120.
   WALKER, J.

This is a suit to recover on a bond of respondent, A. C. Tindle, for losses to the plaintiff bank on account of the embezzlement of . its funds by Tindle as its cashier. The plaintiff trust company sues as assignee for the purpose of liquidating the assets of the bank of which the bond is a part. The defendants, other than Tindle, are the sureties on his bond.

The petition states the corporate capacity of the plaintiff trust company, its rights, powers and privileges as such, aud that it acquired for value received by contracts as assignee, all assets and claims of the Pemiscot County Bank for the purpose of liquidating the bank’s unsettled business; that by virtue of said assignment it became a trustee of an express trust for said bank and as assignee in connection with said bank it brings this suit.

The corporate character of the plaintiff bank is alleged; that it did a banking business from the date of its organization until June, 1913, when it ceased to be an active concern, at which time it assigned its assets to the the plaintiff trust company for the purpose above stated; that in April, 1912, defendant Tindle was elected and employed as cashier of said bank, and on said date entered into a bond to said bank with the other defendants named herein, as sureties, for his faithful performance of the duties of cashier. The bond is then set forth in haec verba. The parts material to a determination of the issues here submitted are as follows. That Tindle, as principal, and the defendants, as sureties, naming them, are “indebted to the Pemiscot County Bank of Carruthersville, Missouri, in the penal sum of twenty thousand dollars, for the payment whereof, we and each of us bind ourselves, our heirs, executors and administrators, and every of them jointly, severally and firmly.”

“The condition of the above obligation is, that whereas said A. C. Tindle, has been duly appointed by the board of directors of said Pemiscot County Bank, as cashier of said bank;

“Now, Therefore, if the said A. C. Tindle, shall well and faithfully perform all duties of the office of cashier of the said Pemiscot County Bank, respectfully, during the time for which he has been elected or appointed, the said above named and undersigned sureties hereby agree to hold the said Pemiscot County Bank harmless for any loss occasioned by any act of such officer, until ¿.11 his accounts with the said bank shall have been fully settled and satisfied. It hereby being expressly understood and agreed, that the said sureties shall not be liable for any act of the said employee or employees resulting in loss to the said, employer, whose act may have been committed prior to twelve o’clock noon on the 1st day of February, 1912, and subsequent to twelve o’clock noon of the first day of February, 1913.”

The petition further avers that Tindle, as cashier of said bank, aided and assisted by Thos. B. Ward and L. A. Ferguson, as assistant cashiers, colluded and worked together with the fraudulent design of embez-, zlirig and misappropriating the money and funds of said bank. The course pursued by these parties to effect their purpose and plan to embezzle and misappropriate said money and funds; is set forth, and it is alleged that said bank was unlawfully thus deprived' by Tindle of large sums of money; that it was the duty of Tindle as cashier to see that the books of said bank were correctly kept to prevent those assisting lfim or in his employment from making false or fraudulent entries in the hooks of said hank whereby the funds of same might be embezzled and misappropriated; that Tindle failed to thus discharge his duties as cashier; and while acting as same fraudulently embezzled and appropriated to his own use several hundred thousand dollars of money and property of said bank; and that said bank thereby lost all of said sums of money. Then follows a statement of the nature, character and amounts of these numerous ■ embezzlements, which aggregate more than the penalty of said bond. The commission of the acts charged are alleged to have been done by said Tindle while he was acting as cashier of said bank and within the line of his duty as cashier and during the time covered by his bond, to-wit, between the first day of February, 1912, and the first day of February, 1913; and that his acts and misconduct constitute breaches of said bond; that defendants and each of them have failed and refused and still fail and refuse to account for and turn over the Pemiscot County Bank said sums of money herein set forth as having been embezzled, which said sums were then and there the money and property of saidv bank. Wherefore the .plaintiffs pray judgment against defendants for twenty thousand dollars, the penalty of said bond, and that, execution issue against defendants for" the said sum as a part of the damages aforesaid.

Defendants demurred to this, petition, assigning the following reasons therefor:

“1. Because said petition shows on its face that the plaintiff has no legal capacity to bring this suit.
“2. Because said petition shows on its face that said plaintiff is not the party in interest herein, and the suit cannot be maintained in the name of the plaintiff Citizens Trust Company.
“3. Because said petition fails to state facts sufficient to constitute any cause of action herein.
“4. Because said petition' shows on its face that the plaintiff has no canse of action against the defendants.
“5. Because said petition is so indefinite and uncertain as not to apprise the defendants of their alleged • cause of action or charge against the defendants.
“6. Because said amended petition shows on its face that the many divers and various things set out and enumerated therein did not constitute any breach of- the bond and said petition fails to show any connection of any of the alleged many and divers matters and things set out in said petition are in any way connected or related to these defendants herein, or that said matters therein related and set out constituted any cause of action against the defendants herein.
■ . “7. And that said petition on its face shows, as to these defendants as sureties on the alleged bond, that all matters and things related in said petition did not constitute any breach of the bond set out in plaintiff’s petition, and did not constitute any cause of action or ground of complaint against these defendants. ■
“8. And that said amended petition shows on its face that there is a misjoinder, of causes of action of many and divers and various and different alleged wrongful transactions on the part of the principal in the bond sued upon, A. C. Tindle, but which said charges do not constitute any violation of the' bond and are alleged wrongful acts not properly joined in this action and do not constitute any cause of action against these defendants.
“9. And there is a misjoinder of parties plaintiff therein.”

The demurrer was sustained; and the plaintiff declining to plead further, final judgment was entered for' defendant from which' this appeal is taken.

I. It is urged as one of the reasons to support the action of the trial -court in sustaining the demurrer that the Citizens Trust Company was not a proper party plaintiff. We are not impressed with the soundness of this contention. The plaintiff alleges that the Trust Company acquired from the hank by assignment all of the assets, includ-

ing choses in action, claims and demands, due or to become dne said bank, to be collected by the trust company and applied to the use of the bank. This contract of assignment constituted the trust company a trustee of an express trust. As such, it was authorized to sue in its own name. [Sec. 1730, R. S. 1909,] This authority, however, did not preclude the trust company from joining the bank therewith as- a party plaintiff as one “having an interest in the- subject of the action.” [Sec. 1731, R. S. 1909; Jones v. Railway, 178 Mo. 528; Lee v. Railway, 195 Mo. 400.] If, therefore, the bond can be made the basis of a cause of action under the allegations of this' petition,, the trust company was not without authority to sue and there .was no misjoinder.

II. It is further contended that the assignment was unauthorized and hence the trust company could not base a right of action thereon. Section 1084, Revised Statutes 1909, is cited in support of this contention. It is as follows: “It shall be unlawful in this State for a bank, private banker, savings and safe deposit company or trust company receiving deposits to make a voluntary general assignment of its business and affairs. In case it shall find itself to be in a failing condition it shall immediately place itself in the hands' of the Bank Commissioner. Any deed of voluntary general assignment executed by any such bank, private banker, savings and safe deposit company or-trust company shall be null and void, and in case the officers or directors of any such institution shall endeavor to make any voluntary general assignment, of its assets,- the Bank Commissioner shall immediately take possession thereof and proceed, as provided in the case of insolvent banks in this State for the appointment of a receiver by court. All transfers of the notes, bonds, bills of exchange, or other evidence .of debt owing to any bank, private banker, savings and safe deposit company or trust company, or of deposits to its credit; all assignments of mortgages, sureties on real estate or of judgments or decrees in its favor; all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders or creditors; and all payments of money to it, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, shall be utterly null and void. No attachment, injunction or execution shall be issued against such bank, private banker, savings and safe deposit company or trust company or its property, before final judgment in any suit, action or proceeding in any state, county or municipal court.” The prohibition contained in this section is limited to such banks as “find themselves in a failing condition.” This limitation if not express in its terms is indicative of a legislative purpose to prohibit insolvent banks from liquidating their business under the general law (Sec. 896, R. S. 1909) authorizing voluntary assignments for the benefit of creditors and to confine them, not exclusively, but for •the purpose indicated in Section 1084, to the jurisdiction of the State Banking Department. Not only the provisions of this section but of Section 1081 confirm this conclusion. The confining of the supervision and liquidation of insolvent banks to the State Backing Department was primarily for the purpose of securing an honest and economical administration of the assets and not for the purpose of taking them from the possession of the owners of same when all of such owners, as is the caise here, having any possible interest ini the funds, desire to take them into their own possession and distribute them. Deprived of this right with no appreciable benefit to be derived therefrom was not the purpose of the statute, especially when such change of possession and supervision could only result in otherwise unnecessary' expense and consequent loss. Thus construéd, the act, instead of prohibiting, encourages creditors and stockholders, combining and contributing their aid for the benefit of all, and acting through an agency, appropriate and etfective for that purpose, to liquidate a hank’s affairs and retire it from business. No more effective instrumentality to satisfactorily accomplish such liquidation could be employed than a trust company working under the supervision” of the State Banking Department. Much' of the delay and the costs incident to a liquidation in court are avoided by pursuing this course. Persuasive at least of the correctness of this conclusion is the fact that the Attorney-General appears here as the friend of the court, not to object to the plan, but to register his approval of same by showing that it has been acquiesced in by the stockholders and depositors and that through its processes the individual and unsecured depositors have been paid. The objectors to the plan are the principal in this bond, through whose criminality these peculations were perpetrated, and the sureties on his bond.

Prom the allegation of the petition therefore in regard to the transfer of this bond to the trust company as a liquidating agency the presumption is permissible that circumstances existed which, in accordance with the views we have expressed, authorized the bank,, with the consent of all its creditors to proceed with its own liquidation through the agency of the trust company. If this be denied and the respondents should claim that they have the right to assert that the transfer was unlawful, it devolved upon them to plead it by answer as a defense, which has not been done. The. judgment of the circuit court upon the demurrer cannot therefore be sustained on the ground that the trust company is shown upon the face of the petition to be an improper party on account of the transfer of the bond sued on being void.

III. The vital .question in this case is, whether under the conditions- of this bond the sureties thereon are liable for the thefts of the bank’s funds by the principal, as disclosed in the petition. This bond constitutes a contract. As such it is generally subject to the rules of construction applicable to other contracts. One of the most important of these is that if the contract, be ambiguous, the court will look not merely to its words, but to its subject-matter, the circumstances attending its making and the interpretation given to it at the time by the p.arties themselves. [5 Cyc. 755, and cases.] The condition precedently necessary to the application of this rule is ambiguity. The reason therefor is evident. If the bond be not fair on its face, it will require other help than its own terms to define its purpose. A resort, therefore, to any of the methods mentioned may become necessary to render its meaning unequivocal. [Bank v. Flanagan Mills & Elevator Co., 268 Mo. l. c. 570.] When, however, the terms of the instrument are so clear that its meaning cannot be mistaken, a resort to any of these aids to interpretation becomes not only ulterior but unnecessary. An instrument which speaks unmistakably in its own words leaves, no room for construction. [St. Louis v. Railroad, 228 Mo. 712; Counts v. Medley, 163 Mo. App. l. c. 555.] But abstract reasoning aside, let the conditions of this instrument speak for themselves. They are: “That if the said A. C. Tindle shall well and faithfully perform all duties as such cashier of said Pemiscot County Bank respectfully, during the time for which he has been elected or appointed, the above named and undersigned sureties hereby agree to hold said Pemiscot County Bank harmless for any loss occasioned by any act of such officer until all of his accounts with said bank shall have been .paid. ’ ’ This condition, measured by its words which from their terseness are ample and sufficiently definite to define their meaning, ignoring the improper use of the word “respectfully,” which is superfluous, is, that, the sureties will hold the bank harmless if the principal well and faithfully performs all of his duties as cashier. That this is not such a bond as is required of a hank-cashier by the statute is evident (Sec. 1112, R. S. 1909); but this will not render it either absurd, meaningless or unauthorized, nor did it preclude in addition the taking of a statutory bond. [Bank v. Smith, 5 Allen (Mass.), 413.] Inadvertence or the honest mistakes of cashiers sometimes occasion losses which an obligation of the riature of this bond may reasonably he construed to be intended to obviate. They are not infrequent or inconsiderable. Cashing forged checks, buying notes having forged signatures thereon, .taking counterfeit money, making a loan in good faith thinking the sureties solvent, paying an obligation to an insolvent employee which had theretofore been paid, are some of the instances of inadvertent or honestly incurred losses occasioned by the acts of cashiers. The enumeration of others is unnecessary as these will- suffice to demonstrate that the taking of the character of bond here under review is neither absurd nor meaningless, but serves a wise and practical purpose in the conduct of the business of banking. A bond to protect against this character of losses being authorized, a petition based thereon will state a substantial cause' of action. It is, therefor, for the purposes for which it was executed, binding not only upon the principal, but upon those who are in privity with him, to wit, his sureties. [State to use v. Cochrane, 264 Mo. l. c. 593, and cases.] An attempt, however, to render this a statutory bond by the elimination therefrom or the insertion therein of a word or words which will effect a change in its purpose or meaning and thereby render the sureties liable is not authorized.

The necessity and the wisdom of a bond of this character having been shown, its failure to conform to the statutory requirements will not affect its validity for the purpose for which it was made. It was voluntarily entered into, and its conditions may be performed without a breach of the law. The sureties are therefore bound by the terms of their agreement, as recited in the bond, except as to such parts as may be illegal when their responsibility will continue as to the residue. [Daniels v. Tearney, 102 U. S. l. c. 420; Kountze v. Hotel Co., 107 U. S. l. c. 396; Liggett v. Humphrey, 21 How. (U. S.) l. c. 69.]

This reasoning is based upon the general rules of construction applicable alike to all obligations. When, however, the rights of sureties are involved, the doctrine of strictissimi juris may properly be invoked in construing the contract — this of course, when it is otherwise clear, plain and its meaning unmistakable. [State ex rel. v. Smith, 173 Mo. l. c. 407.] It is elementary, and does not admit of question, that the reason underlying ’ the application of this limitation to the general rule of construction is that sureties are the favorites of the law. In Blair v. Insurance Co., 10 Mo. l. c. 566, this court first gave judicial recognition to this doctrine. This classification of sureties cannot be better defined than in the words of Sherwood, J., speaking: for this Court in Nofsinger v. Hartnett, 84 Mo. l. c. 552, where he says in effect, citing numerous cases, that: “It is á well settled rule, both at law and in equity, that a surety is not to be held beyond the precise terms of his contract, and except in certain cases of accident, mistake or fraud, a court of equity will never lend its aid to fix a surety beyond what he is fairly bound to at law. This rule is founded on the most cogent and salutary principles of public policy and justice. In the complicated transactions of civil life, the aid of one friend to another, in the character of surety or bail, becomes requisite at every step. Without these constant acts of mutual kindness and assistance, the course of business and commerce would be prodigiously impeded and disturbed. It becomes then excessively important to have the rule established, that a surety is never to be implicated beyond his specific engagement. Calculating upon the exact extent of that engagement, and having no interest or concern in the subject-matter for which he is surety, he is not to be supposed to bestow his attention to the' transaction, and is only to be prepared to meet the contingency when it shall arise, in the time and mode prescribed by his contract. The creditor has no right to increase' his risk without his consent, and cannot therefore vary the original contract, for that might vary the risk.” And on page 555 it is said that: “There is a principle that pervades the whole doctrine, on the relation subsisting between the creditor and the security debtor; that is, that the obligation shall by no liberal intendment be carried in tbe smallest degree beyond tbe undertaking. And again, that there is no moral obligation on the security beyond or superadded to the legal obligation. His obligation being essentially a legal one, it would follow that if not liable in strict law, he is not liable at all. . . . The measure of the liability of sureties is fixed by the terms of the instrument they may sign and we do not understand such undertaking can be enlarged or varied by judicial construction. That would impose upon a mere surety obligations he had never assumed and perhaps would have been unwilling to take upon himself.” To a like effect see State ex rel. v. Smith, 173 Mo. l. c. 406; State ex rel. Hamilton v. May, 160 S. W. (Mo. App.) l. c. 1031; Dougherty-Moss Lumber Co. v. Churchill, 104 S. W. (Mo. App.) 478; Mix v. Singleton, 86 Ill. 194; State v. Medary, 17 Ohio, 565.

This bond speaks for itself. Thus speaking the liability of the sureties thereon is limited to its exact words. If these will not render them liable, nothing-can. There is no equity against sureties and courts will riot so construe a bond as to create a liability at variance with its letter. Such a construction would be necessary to fix the liability of the sureties here, under the allegations of this petition. We therefore hold that it does not state a cause of action, from which it follows that the judgment of the trial court should be affirmed. It is so ordered.

All concur, except Bond and Woodson, JJ,, who dissent; Faris, Jnot sitting.'