source: Caselaw Access Project

author: FOX J.

license: Public Domain

text:
    ROBBINS, Appellant, v. BOULWARE.
    Division Two,
    June 20, 1905.
    1. ADMINISTRATION: Homestead: Sale For Debts. The homestead of a decedent, subject to the widow’s and minor’s homestead therein, could in 1889 be sold, under an order of the probate court, to pay decedent’s debts.
    2. -: Petition for Sale of Real Estate: Collateral Attack. The absence of the signature of the officer administering the oath to the administrator and from the affidavit attached to the petition for the sale of decedent’s lands to pay his debts, is an irregularity, and does not affect the jurisdiction of the probate court over the subject-matter, and the sale and deed made in pursuance thereto cannot be invalidated, because of its absence, in a collateral proceeding, such as an ejectment suit by decedent’s heirs against the purchaser.
    3. -: -: Notice:.Four Weeks. The statute does not require that publication of notice of the presentation of a petition for the sale of real estate shall be for the four weeks immediately preceding the term of court, but simply provides that it shall be for four weeks before the term of court; and if the publication is made for four weeks or twenty-eight days, and if ten or twenty days intervene between the last publication and the first day of the court, the statute is complied with. So that a publication notice in a newspaper bearing date of January 11th, 18th and 25th and February 1st, to appear on the second Monday of February, which was February 11th, was a compliance with the statute.
    4.-: -: Insufficient Notice of Sale. A judgment of the probate court approving the sheriff’s report of the sale cures any defect in the advertisement of the sale. Insufficiency of length of time for, which notice of sale was published is an irregularity, and cannot be attacked in a collateral proceeding, like ejectment. The approval of the sheriff’s report of sale reciting that legal notice was given, is a final judgment, and if erroneous the remedy is by appeal to the circuit court.

      5. —-: -:-: Affidavit. The affidavit to a publication by the publisher is merely to inform the court that such publication was duly- made, and if the court expressly recites that the order of publication was properly published that ends the contest as to the truth of that fact, in a collateral proceeding. Thereafter, in an ejectment suit, it cannot be said that proof of publication was not properly made.
    Appeal from Clark Circuit Court. — No». E. B. McKee, Judge.
    AFFIRMED.

      Berkheimer & Dawson for appellant.
    (1) The administrator’s sale was void. No petition for the order of sale was ever presented to the probate court. The pretended petition presented was the same as no petition and was not legal and was null and void as the same was not sworn and subscribed to, and no jurat affixed, and no seal affixed. Sec. 147, R. S. 1899 ; Jarvis v. Russick, 12 Mo. 63; Bompart v. Lucas, 21 Mo. 598; Pryor v. Downey, 50’ Cal. 388. (2) The statute is mandatory, in that it provides that such notice shall be published for four weeks in some newspaper in the county in which the proceedings were had before the term of court at which such order will be made. Young v. Downey, 145 Mo. 250 ; Hutchison v. Shelley, 133 Mo. 400; Cunningham v. Anderson, 107 Mo. 371; Sibley v. Affle, 16 N. Y. 180; Pardobn v. Devire, 23 Ill. 572; Rntliff v. Magee, 165 Mo. 467; Maxwell v. Barnes, 59 S. W. 1067; Munday v. Leeper, 120 Mo. 417; Wiggins v. Lowering’s Adm’r, 9 Mo. 262; Montelius v. Sarpy, 11 Mo. 237; Blackwell v. Ridenkour, 13 Mo. 125; Bryan v. Munday, 17 Mo. 556; Russell v. Croy, 164 Mo. 69; 1 Black on Judgments, sec. 220. This notice itself which is a part of the judgment and the judgment can be impeached collaterally. 1 Black on Judg., 263; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Crow v. Meyersieck, 88 Mo. 415; McClanahan v. West, 100 Mo. 321; Johnson v. Baker, 38 Ill. 98; Frances v. Evans, 90 Mo. 74; Dow v. Chandler, 85 Mo. 245; In re Anrthy, 37 N. W. 449; Tappan v. Dayton, 51 N. Y. Eq. 82; In re Zech Estate, 15 Pa. Co. C't. Rep. 622. In this case the publication commenced on Friday, January 11, 1889, and ended on Friday, February 1, 1889, and was not a compliance with the statute, for there were only twenty-one days from the first publication to the last publication; and further, the proof of publication was not subscribed to, examined or sworn to by either editor of the newspaper. Young v.' Downey, 150 Mo. 250 ; Russell v. Croy, 164 Mo. 69; Davis v. Robinson, 70 Tex. 394; Longhridge v. City of Huntington, 56 Ind. 255; 1 Elliott’s General Practice, 450; Harness v. Cravens, 126 Mo. 233; Granger v. Judge, 44 Mich. 384; Brownville v. Dyer, 7 Bush (Ky.) 505; Ratliff v. Magee, 165 Mo. 461; Wilson v. Railroad, 108 Mo. 596; Charles v. Morrow, 99 Mo. 638; Gibson v. Roll, 30 Ill.'172; Valle v. Fleming, 19 Mo. 455; Agan v. Shannon, 103 Mo. 661; State ex rel v. Tucker, 32 Mo. App. 620. (3) The vested rights that the widow and minor children had under the law of 1865 was not taken away by homestead law of 1875. Art. 2, sec. 15, Constitution; Arnold v. Willis, 128 Mo. 145; Ex parte Bethurum, 66 Mo. 549; Marshall v. King, 24 Miss. 85; Gladney v. Sydnor, 172- Mo. 318; Calder v. Bull, 3 Dali. (U. S.) 386; 6 Am. and Eng. Ency. Law (2 Ed.), 956; Leete y. Bank, 115 Mo. 184; Bartlett v. Ball, 142 Mo. 28; Clay v. Mayr, 144 Mo-. 380; Cranor v. School Disk, 151 Mo. 125; In re Flukes, 157 Mo. 131. (4) Affidavit is not good unless the jurat of the officer is affixed. O ’Bryan v. Langley, 59 S. W. 523; Knight v. Elliott, 22 Minni. 551; Jackson v. Stites, 3 Caines 128; Shortle v. Stockton, 7 Watts. 526; Milner v. State, 24 N. E. 156; Metcalfe v. Presscott, 10 Mont. 283; State ex rel. v: Cardes, 58 Mo.- 771; Lederer v. Railroad, 38 Wis. 244; Doty v. Boyd, 24 S. E. 59; Tunis v. Withron, 77 Am. Dec. 117. Neither is there any seal attached, and there is no attempt to cure same by parol evidence. The jurat must be signed by an officer authorized to administer an oath. State Bank v. Hitchcliffe, 4 Ark. 444; Calvert v. McHaugbton, 2 Mich. N. P. 8; Morris v. State, 2 Tex. App. 502; Jackson v. Stiles, 3 Caines 128; "Waples v. Hicks (Bright.) N. P. 56; Lederer v. Railroad, 38 Wis. 244.

      T. L. Montgomery and W. M. Boulware for respondent.
    (1) The order of publication was published January 11, 18, 25, February 1st, the first day of the term of court was February 11th, hence the publication appeared thirty-one days before the first day of the term of court and was a sufficient, valid and legal publication as construed by this court. See. 148, R. S. 1879; Langston v. Canterbury, 173 Mo. 122; Young v. Downey, 145 Mo. 250; Young v. Downey, 150 Mo. 317; Russell v. Croy, 164 Mo. 90; Ratliff v. Magee, 165 Mo. 468. If there were no affidavit attached to the petition, this is not such a jurisdictional fact as would render the proceedings void and subject to collateral attack. Castle-man v. Relfe, 50 Mo. 587; Sloan v. Mitchell, 84 Mo. 546; Rugle v. Webster, 55 Mo. 246; Wilkerson v. Allen, 67 ^ Mo. 508. In Other jurisdictions it has been held that the omission of the affidavit to the petition will not render the proceedings void or vulnerable on collateral attack. 19 Ency. PI. & Pr., 878; McCoy v. Ayers, 2 Wash. Ter. 203; Coon v. Fry, 6 Mich. 506; Overton v. Cranford, 7 Jones L. (N. Car.) 415; Trumble v. Williams, 18 Neb. 144; Kleinecke v. Woodward, 42 Tex. 311; Myers v. Davis, 47 Iowa 329. (2) The notice of sale was published in four issues of the paper, and but twenty-two days before the date of the sale, and was irregular, but the same is not jurisdictional and cannot be collaterally attacked in this proceeding, and does not render the deed void. Sec. 164, R. S. 1879; McNair v. Hunt, 5 Mo. 301; Jackson v. McGruder, 51 Mo. 55; Curd v. Lackland, 49 Mo. 453; Evans v. Snyder, 64 Mo. 516 ; Draper v. Bryson, 17 Mo. 71; Young v. Schofield, 132 Mo. 668; Hanck v. Cross, 67 Mo. 155; Harness y. Cravens, 126 Mo. 260; Mitchell v. Nodaway Co., 80 Mo. 257; Evans v. Robberson, 92 Mo. 192; 2 Freeman on Executions (2 Ed.-), see. 286. (3) The proof of the advertisement of the notice of sale of the real estate was subscribed and sworn to by Christy & Waggener, publishers' of the paper, in due and regular form, and technically complies with the statute prescribed for printers’ or publishers’ affidavit in such matters and is informal and irregular but does not render the proceedings void leading up to the administrator’s deed. Sec. 319, R. S. 1879; Bailey v. Guinn, 76 Mo. 271; Voorhees v. Bank, 10 Peters 193; Moore v. Wingate, 53 Mo. 40. (4) The legal and regular publication of notice to the ■heirs and parties in interest to appear and show cause, if any, why the land should not be sold and the order regularly made, as in this case, brought all parties in interest into court up to and including the approval of the sale which was ordered by the probate court May 25, 1889. This approval and order was a final judgment from which any and all parties in interest could have perfected an appeal, including the appellant, and having failed to appeal, the record is final and cannot be attacked collaterally as appellant contends can be done in this case. The irregularities, if any, are cured by said final judgment; the judgment of the probate court, the same as the judgment of the circuit court, cannot be attacked in this proceeding, and is final and conclusive upon the parties. 2 Woerner’s Law of Administration (1 Ed.), secs. 478, 488; vol. 1, sec. 145;. Wolf v. Robinson, 20 Mo. 460; Camden v. Plain, 91 Mo. 129; Sims v. Gray, 66. Mo‘. 616; Johnson v. Beazley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 416; Bray v. Adams, 114 Mo. 491; Reed Brothers v. Nicholson, 158 Mo. 631; Covington v. Chamblin, 156 Mo. 587; Price v. Real Estate Ass’n, 101 Mo. 116; Noland v. Barrett, 122 Mo. 187; Rogers v. Johnson, 125 Mo. 214; Murphy v. De France, 105 Mo. 70; Long v. Mining & Smelting Co,., 68 Mo. 422; Snyder v. Coleman, 72 Mo. 568. (5) The land was sold subject to the homestead rights of the widow, Mary A. Brown, and the title passed to the purchaser subject to her life interest. R. S. 1879, sec. 2693; Roland v. Vesper, 67 Mo. 727; Keene v. Wyatt, 160 Mo. 8.
   FOX J.

Appellant has filed an abstract of the entire record in this cause. In the brief, however, there is no detailed statement as to the contents of the abstract, but we find, after a careful consideration of the record and a verification of it, that the respondent has made a fair statement of the general outlines of this cause, and with some modifications we have adopted it.

This is an action in ejectment brought by plaintiff, now appellant, against the defendant, now respondent, to recover a five:eighths interest in and to 49.5 acres in the northwest quarter of section fifteen, township sixty-three north, range six west, situate in Clark county, Missouri.

It is admitted and agreed by counsel that the common source of title is "William N. Brown. That he died on the thirty-first day of December, 1877, intestate, seized of the land, and that he left as his heirs at law his children, Newton A. Brown, Daniel E. Brown, Henry B. Brown, Rhoda Davis, Nettie Bash, Minie Barclay, Anna B. Robbins. That he left his widow, who died July 26, 1891. That $100' is the reasonable rental value of the premises per year. That the defendant has been in the possession of this real estate since March 1, 1896.

William N. Brown, the common source of title, died intestate, December 31, 1877, leaving surviving him his widow, Mary A. Brown, and appellant, and other heirs at law. That thereafter, at the May term, 1878, of the probate court of Clark county, Henry D.

Brown was duly appointed administrator of said estate, gave bond and entered upon the discharge of Ms duties as such up to the February term, 1888, of said court, when upon the application to said court by A. D. Lewis, a creditor of said estate, by petition, upon due notice to said Henry D. Brown, such proceedings were bad in said court that letters theretofore granted to him were by the said court revoked on account of his failure to discharge his duties as such administrator, and for failure to pay off the legal demands allowed against said estate. That thereafter, and on November 30, 1888, no one of kin appearing to administer, the probate court duly appointed Henry C. Schaffer, public administrator, to take charge of and administer said estate.

On application of Mary A. Brown, widow, at the November term, 1888, of said probate court, by petition, such proceedings were had in said court, that at the February term, 1889, the whole of said real estate was set off to her as her homestead herein, which she occupied as such up to' the dáte of her death, which occurred July 26, 1891.

Henry O. Schaffer, public administrate r in charge of said estate, on December 1, 1888, filed his petition praying for the sale of said real estate, subject to the homestead rights of the widow therein, and on the twenty-fourth day of December, 1888, at the November term, of said court, an order of publication was directed and ordered by said court notifying all parties interested that at the next February term, 1889, of said court and on the first day of said term, being the second Monday in February, 1889, and on the eleventh day of said month, an order would be made to sell the whole or such part as may be necessary to pay- the debts of said estate unless the contrary be shown.

At said February term, 1889, the order of sale was duly made by an order of record in said probate court. That thereafter the said administrator after having the same appraised by three disinterested persons at the price of three hundred dollars, as shown by said appraisement, in pursuance of the terms of said order, and at the May term of said court, after haying advertised the same, sold said land at public vendue, and E. H. Connable, being the highest and best bidder therefor, became the purchaser thereof and same was duly sold to him for the sum of four hundred dollars. The sale was duly reported to the court and said sale was approved and deed regular on the face of it, containing all the necessary statutory averments, ordered made to him for said real estate, which was done May 25, 1889. On the seventh day of December, 1895, the said E. H. Connable for a valuable consideration executed, acknowledged and delivered to respondent, M. Q. Boulware, a deed for said premises and respondent has had possession thereof, according to the admission in the record, since March 1, 1896.

This presents in a general way what was done in respect to the sale of this land. As to the defects disclosed by the record in the petition, and insufficiency of the publication of notice of application for sale and no-' tice of sale, and the proof of publication, we will fully treat of them during the course of the opinion.

This case was, by agreement, tried before the court, no instructions asked or given by either party, and the finding and judgment was for respondent, and against' the appellant, and the latter brings this case here for review by appeal from the judgment of the lower court.

OPINION.

Numerous errors are assigned by appellant as grounds for the reversal of this judgment. The legal propositions submitted to* us for consideration, by learned counsel for appellant, may thus be briefly stated:

First. It is insisted that the land in controversy, being the homestead of the widow, was not subject to sale under the order of sale by the probate court, during the lifetime of the widow.

Second. That the sale of the real estate by the administrator was void, for the reason that the truth of the allegations of the petition was not properly verified by affidavit of the administrator.

Third. That the probate court did not acquire jurisdiction of the persons interested in said land by reason of the insufficiency of the notice of publication, and the proof thereof by the publishers, hence the order of sale was void and of no force and effect.

Fourth. That the sale by the administrator is inoperative to pass the title by reason of the insufficiency of the notice of said sale.

Fifth. That there was unreasonable delay in the application to the probate court for the sale of this land and for that reason this sale should not be upheld.

We will treat the propositions in the order named.

I. Upon the first proposition involved in this controversy, the question as to the right to sell this land in controversy, which was the homestead of the widow, by order of sale of the probate court, for the payment of the debts of William N. Brown, must be treated as settled and no longer an open question in this State, since the conclusions of this court were announced upon that proposition in the case of Keene v. Wyatt, 160 Mo. 1. It will be observed that this case expressly disapproved the rulings in the cases of Broyles v. Cox, 153 Mo. 242, and In re Powell’s Estate, 157 Mo. 151, cited by appellant in this cause, so far as such rulings were in conflict with the conclusions reached in Keene v. Wyatt, supra.

II. The next insistence on the part of the appellant is directed to the absence'of the signature of the officer administering the oath to the administrator, and the affidavit attached to the petition for the sale of real estate. The affidavit is in proper form and duly signed by the administrator and blank space for the signature of the probate judge, who presumably would administer the oath. It is insisted that this failure in respect to the affidavit was fatal to the petition and rendered the order of sale made in pursuance to this prayer void. We are unable to assent to this contention on the part of the appellant.

In Rugle v. Webster, 55 Mo. 246, there was a petition presented to the county court of Polk county, which was exercising probate jurisdiction, for the sale of certain lands belonging to the estate of the deceased. While the petition made all the necessary averments it was defective in not being accompanied with an account of the administration and a list of the debts owing to and unpaid by the estate and remaining unpaid, as the statute in force at that time required. The affidavit as to the truth of the allegation in the petition, which the statute required to be made, was not made by the administrator in person, but was made by an attorney instead. The court upon this petition ordered the sale of the land and the sale was made in pursuance of it, and at the next term of the county court of Polk county the sale was approved. The deed by the administrator, which was regular in form, was executed and acknowledged to purchaser at the administrator’s sale in pursuance to the sale made. The heirs of the deceased in that case brought suit in ejectment, as in this case, to recover the land, and it was urged that the failure of the administrator to make the affidavit and to accompany his petition with an account of the administration and list of the debts due to and unpaid by the estate were such defects in the petition as rendered the order made upon it void. Wagner, J., speaking for the court, in response to the contentions made in that case, thus clearly stated the law: “Although the proceedings may have been irregular and the affidavits not made in literal compliance with the law, yet there- are not such jurisdictional facts as would render them wholly void. Sufficient cause might have existed for a reversal in a direct proceeding brought for that purpose, but certainly there is no ground for a collateral impeachment. In the case of Overton v. Johnson, 17 Mo. 442, it was held, that the accounts, lists, inventories and appraisements which the statute requires to he filed with a petition for the sale of a decedent’s real estate, are not necessary to give the court jurisdiction, and that a failure to file them would not render the sale void. The court, speaking through Gamble, J., said: ‘The jurisdiction is acquired by filing a petition praying the court to do an act or make an order which under the statute the court is competent to do. Whether the petition is in proper form,' or sets forth sufficient facts, or is accompanied with the proper evidence, the court will decide in the exercise of its jurisdiction. ’ It was for the court, when the petition was presented, to determine its sufficiency, and if it made an erroneous decision, the proper remedy was by appeal. ’ ’

To the same effect is Wilkerson v. Allen, 67 Mo. 502, where the same question arose as to the sufficiency of the affidavit, and it was again held that it was a mere irregularity and was not such a jurisdictional fact as would render the proceeding void. These cases are fully supported in other jurisdictions. [Coon v. Fry, 6 Mich. 506; Overton v. Cranford, 7 Jones’ Law 415; Trumble v. Williams, 18 Neb. 144; Kleinecke v. Woodward, 42 Tex. 311; Myers v. Davis, 47 Iowa 325.]

Probate courts of Missouri are established by the organic law, the Constitution of the State, and their judgments and proceedings are entitled to the same credit and presumptions accorded to those of general juristiction. [Noland v. Barrett, 122 Mo. 181.]

The order of sale by the probate court in this cause is predicated upon the allegations in the petition, and while there is a requirement by the statute -that the petition be verified by affidavit, the absence of such affidavit in our opinion was a mere 'irregularity, and did not deprive the probate court of jurisdiction of the proceedings. If the parties interested in said land; were in conrt by dne process, the absence of the affidavit in dne form was a matter that conld be contested upon the presentation of the petition, bnt that snch irregularity does not render the judgment and proceeding void and subject to an attack in a collateral proceeding, we think is too clear for discussion. There is a broad distinction between the proposition involved as presented in this case and the questions involved in the cases of Barhydt & Co. v. Alexander & Co., 59 Mo. App. 192, and Kincaid v. Griffith, 64 Mo. App. 673, cited by appellant. In those cases it will be observed that it. was a proceeding under the statute to revive a judgment procured before a justice of the peace, and the affidavit required to be filed was the very basis of the proceeding, without which there could be no jurisdiction. Hence, in order to confer jurisdiction, it was essential that an affidavit in substantial compliance with the statute should be first filed.

III. This leads us to the consideration of the third proposition, which is the most vital one presented by counsel for appellant, as to the sufficiency of the process by which the parties interested in the sale of the land in controversy were brought into the probate court. It is insisted by appellant that the publication of the notice of application for sale of the real estate in the issues of the paper of January 11th, 18th, 25th and February 1st, 1889, notifying all parties in interest to appear on the second Monday of February, which was February 11th, was not a compliance with the provisions of the statute, and was insufficient- to give the probate court jurisdiction of the persons interested in said estate. This publication was made under the provisions of section 148, Revised Statutes 1879, which, so for as it is applicable to this case, provides that the notice ‘ ‘ shall be published for four weeks in some newspaper in the county in which the proceedings are had . . . before the term of court at which said order will be made.” It is argued by appellant that in order to comply with the statute above cited, it was necessary in this case that there should have been a publication in the issues of the paper of February 8, 1889. In other words, it is insisted that this statute means that the publication of the notice shall be for the four weeks immediately preceding the term of the court, and in support of this insistence we are cited to the case of Young v. Downey, 145 Mo. 250. 'Wecannot agree to this contention by the appellant, and the case to which our attention is expressly directed furnishes no support for such contention. This statute simply requires that the other words, 28 days before the term of the court at publication of the notice shall be for four weeks, or in which the petition for the order of sale is to be presented. The mere fact that ten or eleven or twenty days should elapse between the last publication and the term of the court, by no means vitiates the publication of the notice. The statute does not provide that the publication of the notice shall be for the four weeks immediately preceding‘the term of court, but it simply provides that it shall be published for-four weeks before the term of the court, and if the publication is made for four weeks or twenty-eight days, and if ten or twenty days' elapse between the last insertion of the publication and the term of court to which the application is to be made, this is a publication of the notice in compliance with the statute herein referred to-, as much as if the publication had been made for the four weeks or twenty-eight days immediately preceding the term of court to which the petition would be presented. In the case of Young v. Downey, supra, it was simply said, that the first publication was on September 18, 1876, while the October term of the probate court began on the 2nd day of that month, so that the length of time from the first publication to the first day of court was only twenty-four days, four days less than four weeks. It was there held that the requisite notice was not given and the court was without jurisdiction to make the order of sale. With the announcement of the conclusions in that case we are entirely satisfied, hut that is not this case. The publication of the notice in the proceeding now under investigation was for four weeks before the term of the court to which the publication was to be made for the sale of the real estate, and it is apparent that between the date of the first publication of the notice, on January 11,1889, to the first day of the term of the court, which was February 11, 1889, there was a period of 31 days, and the notice of publication in this case does not fall within the class of publications denounced by this- court in Young v. Downey. The publication of the notice in this case fully complied with the statute. [Russell v. Croy, 164 Mo. 69; Ratliff v. Magee, 165 Mo. 468; Young v. Downey, 145 Mo. 250; Young v. Downey, 150 Mo. l. c. 324.]

IV. This brings us to the fourth contention of appellant, in which it is insisted that the administrator’s sale was inoperative to pass the title to the purchaser of this land, for the reason that the notice of said sale was not given in accordance with the statute in force at the time the sale took place-. It may be conceded that only twenty-two days’ notice was given ofi this sale, when in fact the statute required four weeks’ notice prior to said sale in some newspaper printed in the county where the land was situated, if there be one. It must be observed in the discussion of this proposition, that at the May term of the probate- court of Clark county, Henry C. Shaffer, administrator of the estate of William N. Brown, deceased, made his report of the sale of this real estate. In said report the administrator states that he ‘ did on Saturday, the 25th day of May, 1889, between the hours of ten o ’clock a. m. and five o ’clock, p. m., of that day, at the south door of the court house in the city of Kahoka, in said county, and during the sitting of the probate court, held in and for said county, expose to sale at public auction to the highest bidder, upon tbe terms mentioned in said order, the real estate above described, having had the same first duly appraised by William McDermott, R. M. Boulware and R. J. Wood, three disinterested householders of said county, they having first been duly sworn as appears by the affidavit of said appraisers, and their certificate of appraisement herewith filed, marked Exhibit ‘A’, and having given four weeks notice of the estate to be sold, and of the time, terms and place of sale by advertisement published in the Gazette-Herald, a newspaper published in this State, as appears by the affidavit of E. B. Christy, the publisher thereof, herewith filed marked ‘B’, and at said sale aforesaid, E. II. Connable was the highest and best bidder for five hundred and fifty dollars, and the same was stricken off to him.” This report of sale as made by the administrator, was by the probate court of Clark county by an order entered of record, duly approved and confirmed, and the administrator was ordered to execute, acknowledge and deliver to- said E. H. Connable a deed in due form of law, conveying to said E. H. Connable all the right, title and interest which the deceased had in the same at the time of his death.

By the notice of publication heretofore considered, all of the parties interested in said estate were in court at the time of the approval of this report. The approval of the report was a final judgment from which an appeal would lie, and the record discloses that no appeal was taken. Under that state of facts we are simply confronted with this proposition: The probate court having found and adjudged that the notice of sale had been published for four weeks, and said judgment being by a court whose judgments and decrees are entitled to the same credit and presumption as courts of general jurisdiction, can it be attacked in this collateral proceeding and held void for the reason that insufficient notice of the sale of the real estate had been given by the administrator? We have reached the conclusion that it can not, and this conclusion is based upon the rulings of this court from its very earliest history down to the present time. It was said by this court at a very early period of its organization, in McNair v. Hunt, 5 Mo. l. c. 309, in discussing the question of notice of sales, that “it appears from the cases cited that, in Spain, thirty days notice were at some remote period required, and probably still are, but for what reason the crown of Spain could require thirty days’ notice to be given in this then colony, I am unable to see. But even if that were the law, I should say that the fact of the sale was merely voidable, and could not be now questioned in a collateral suit.”

The order of sale in cases of this character occupies the same relation to á sale by an administrator that a judgment or decree does to an execution sale by a sheriff. [Evans v. Snyder, 64 Mo. 518.] In the case of Curd v. Lackland, 49 Mo. 453, it was expressly ruled that the insufficiency of the notice of sale by a sheriff was simply an irregularity, and where the deed was regular upon its face, such sale was not inoperative by reason of the insufficiency of the notice of sale. In the case of Jackson v. Magruder, 51 Mo. 55, it was said by this court that “the judgment of the county court, approving the report of sale, cured the defect, if any, in the advertisement. That was a final judgment from which an appeal might have been taken, and it could not be impeached in a collateral proceeding like this.” In Young v. Schofield, 132 Mo. l. c. 668, while the point involved in this case was not in judgment before the court in that case, the rule announced in the cases herein referred to, that the failure to give the usual and' proper notice under sheriff’s sale at most amounts to but an irregularity, was fully recognized. Sheewood, J., speaking for this court, thus expressly recognized such ruling. He said: “But granting that the failure to notify John C. Young of the issuance.of the execution to Marion county was a non-compliance with the statute, as it undoubtedly was, was it such a failure as amounted to anything more than an irregularity? We are of the opinion that it was not, and in this we do but follow frequent rulings as to the usual notice not being given of ordinary sheriff’s sales. [Draper v. Bryson, 17 Mo. 71; Curd v. Lackland, 49 Mo: 451. See, also, Harness v. Cravens, 126 Mo. 260.] ”

We take it that it is unnecessary to pursue this subject further. That where the judgment of the probate court is regular and recites that proper and legal notice was given for four weeks prior to the sale, such judgment can not be assailed in this collateral proceeding, and if the plaintiff was injured by reason of the conduct of the parties in procuring the order of sale and the sale being made upon insufficient notice, those were wrongs that must be remedied by a direct proceeding to set aside the judgment and sale.

The same may be said as to the complaint of appellant as to the proof of publication by Christy & Waggener, the publishers of the paper in which the publication was made. The probate court in its order of sale of this real estate expressly recites the fact to be that due publication of the process had been made, and that recital is no more open to controversy in a collateral proceeding than where it occurs in a judgment of the circuit court. The affidavit as. made by Christy & Waggener was in proper form; the defect being that they, as a firm, undertook to make oath as to the matters contained in the affidavit. This ' ’ was purely an irregularity and the recital in the order of sale and the judgment approving the sale can not be held void by reason of such irregularity. In Raley v. Guinn, 76 Mo. 271, plaintiffs resorted to ejectment to recover land in Schuyler county, under a tax deed executed by the collector of said county on the 11th day of February, 1887, at a sale which occurred on the 6th day of October, 1874. Henry, J., speaking for the court, proceeding to discuss the questions involved, says: “The first point made by defendant’s counsel, is that the judgment is a nullity, because the printer failed to attach to a copy of the paper his certificate, under oath, of the due publication of the delinquent list, for the time required by law. This the statute (sec. 185, p. 1197, Wag. Stat. 1872) requires, and also that he shall deliver it to the collector, who at the time judgment is prayed, is required to file it as a part of the record of the court.” The learned judge indisposing of the point as raised, during the course of the opinion, thus expressed the views of the court upon that question: “The county court of Schuyler county by its judgment-found, and it is expressly recited therein, that the collector had given due notice, and that recital is no more open to controversy than where it oecurst in a judgment of the circuit court. By the express terms of the statute, the judgment of the county court has the same force and effect as one rendered by the circuit court, and that a judgment of the latter reciting ‘that defendant was duly served with process, ’ cannot be collaterally assailed, is too well settled to require any citation of authorities to support the proposition. Voorhees v. Bank of United States, 10 Peters 449, a leading case on the subject, has been followed in this, and in most, if not all, the States of the Union.” We have carefully considered the cases cited by appellant as to the essential requisites to an affidavit, and an examination of the cases makes it manifest that they have no application to the case at bar. Where the affidavit furnishes the basis of the action, as in the cases heretofore referred to- — the revival of judgments before justices of the peace and in attachment proceedings — it may be said that it must substantially comply with the requirements of the law, but it certainly will not be seriously contended that the affidavit to a proof of publication is of such character as makes it essential that the law shall be literally complied with in order to confer jurisdiction upon a court. The affidavit to a publication by tbe publisher of it is merely to inform tbe court that such publication was duly made, and if a court of competent jurisdiction, when it comes to pass upon tbe question, expressly recites that the order of publication was properly published, that ends tbe contest as to tbe truth of that fact in a collateral proceeding.

In a very early period óf tbe history of this court, commencing with tbe case of Speck v. Wobben, 22 Mo. 310, very strict rules were announced in respect to tbe observance of tbe provisions of tbe statute in tbe administration of estates in tbe probate court; however, this rule which prevailed for a number of years in this State has been abandoned on tbe ground that tbe same presumption of validity must be entertained in respect to tbe judgment and orders of tbe probate court in matters of administration of estates, as are accorded to tbe judgments and orders of tbe circuit court. That we may fully appreciate tbe advanced position of this court upon tbe subject of proceedings and judgments of tbe probate court, a brief quotation from tbe case-of Camden v. Plain, 91 Mo. l. c. 129, will be justified. In spealdng of tbe probate court of Johnson county, in that case, it was said: “Said court was a court of record having exclusive original jurisdiction within that county in all cases arising under tbe general laws of tbe State, relating to tbe administration of estates, and when in such a case, wherein it became necessary to determine a question of fact, that court, thus having jurisdiction of tbe subject-matter, also in tbe manner required by law, by its order of publication, acquired jurisdiction over all persons having an interest in tbe determination of that question of fact, renders judgment thereon, such judgment must be conclusive on all parties in interest, in collateral proceedings. Tbe doctrine that tbe judgments and orders of probate courts are entitled to tbe same presumptions of verity as is accorded to courts of general jurisdiction, proceeding according to the course of the common law, has been, by the recent decisions of this court, well established, and may now be said to be placed beyond question.” To the same effect is Covington v. Chamblin, 156 Mo. 587. It was there announced, in no doubtful terms, that “the order approving the sale of the real estate in question was a final judgment of the probate court, impervious to collateral attack, and subject to impeachment in a direct proceeding for that purpose only, for defects apparent upon the face of the record going to the jurisdiction of the court, or for fraud.”

It is finally urged as a reason why the judgment in this case should be reversed that there was unreasonable delay in the application for the sale of the real estate by the administrator. It is sufficient to say upon this proposition that we have carefully examined the disclosures of the record in this cause. It is apparent that this case was not tried'in the lower court upon the theory that there was any unreasonable delay in the application for sale of the real estate, and the question is now presented for the first time. The record shows that the first administration upon the estate in controversy was by Brown, a son of the deceased; that he did not malee any application to sell it; and it is further disclosed that upon complaint to the probate court his letters of administration were revoked. Upon the removal of Brown as administrator, the widow of the deceased immediately proceeded in the probate court to have the land in controversy set out to her as a homestead, which was done, and she remained in possession of the homestead up to the time of her death. We .are unable to see any injury resulting to the heirs of the deceased, who were claiming this land, by reason of the delay in the application to sell it. When we consider the entire record, the delay in the institution of this suit and assertion of claim to the property in dispute, the appellant is in no position to make complaint as to any delay in the administration of her father’s estate.

This case was submitted to the court without the aid of a jury, no instructions were asked or given, and finding no reversible error upon the record as presented, the judgment should be affirmed, and it is so ordered.

All concur, except Burge'és-, P. J., not sitting.


author: GANTT, J.

text:
    HAXTON v. KANSAS CITY, Appellant.
    Division Two,
    June 20, 1905.
    1. NEGLIGENCE: Pedestrian: Stepping on Loose Stones. Where the loose stepping stones from a curbing to a sidewalk to a public street had no appearance of danger and seemed to have been used by the public generally, and the testimony tends to show that they had been laid there as stepping stones for public use at least a year before, plaintiff was not, as a matter of law, guilty of negligence in using them instead of crossing the street at some other point.

      2: -: -: -: Contributory Negligence. The place where plaintiff fell in crossing the street was the usual and ordinary place for people to cross a public street. At that place were stepping stones from the curbing to the sidewalk which were a prolongation of the crossing. They did not seem dangerous and seemed to have been used by the public generally, but were loose, and when plaintiff stepped on them they gave way and threw her in a hole which was hidden by weeds. In the hole was a gas pipe, and this she struck in the fall, causing the injuries for which she sues. Held, that whether she was guilty of contributory negligence in attempting to cross on these stepping stones was a question for the' jury, and the facts were sufficient to authorize the jury in finding that she was not guilty of contributory negligence.
    3. -: Damages: Permanent Injuries. The instructions need not require the jury to allow plaintiff nothing for future pain and suffering unless her injuries are permanent; where the injuries are such that they are reasonab'y certain to continue to cause future pain and anguish, they are proper elements of damages, though not permanent.

      4. -: Pedestrian: Presumption of Safety. Where the city has assumed, according to plaintiff’s evidence, to construct a crossing of stepping stones from the curbing to the sidewalk, or permitted them to be so used with its acquiescence, and invited' the public to use them as a crossing, it is not error to instruct the jury that it was the duty of the city to exercise ordinary care to keep its sidewalks and crossings in a reasonably safe condition for public use, and that plaintiff had a right to presume, in the absence of knowledge to the contrary, that the city had performed that duty. The criticism to the instruction that the court meant to declare as a matter of law that the place where plaintiff was injured came within the terms “sidewalk and crossing,” is, therefore, without merit.
    5. -: Inapplicable Instruction: Obstruction. An instruction telling the jury that the city has the right to obstruct a sidewalk while making an improvement to the street, correct within itself, should not be given if the dangerous condition existed long before the improvement was begun, and its use by the public was not brought about by the obstruction. And if such an instruction is given, the appellate court will not hold that the jury disregarded it, for it was wholly inapplicable to the case, since the jury must have found that the crossing at the place where the injury occurred was not obstructed by the improvement, and, besides, appellant should not profit by an error invited by itself.
    6. EXCESSIVE VERDICT: $5,000. A verdict of $5,000 for injuries to the back and for a broken ankle and ruptured ligaments of the ankle of a washer-woman, is not excessive.
    7. CHANGE OF VENUE: No Exception. Where no exception was saved to the action of the circuit court of Jackson county in granting a change of venue to Benton county instead of to some other county “in the same or next adjoining circuit,” and appellant voluntarily entered its appearance in the Benton court and submitted to its jurisdiction without objection, it waived all objection to the change of venue.
    Appeal from Benton Circuit Court. — Eon. W. W. Graves, Judge.
    Affirmed.

      B. J. Ingraham, J. G. L. Earvey and L. E. Durham for appellant.
    (1) Appellant’s demurrer to the evidence should have been sustained, (a) There is no proof that the place in question was a public street of tbe city. Down-end v. Kansas City, .156 Mo. 60. (b) Even if it was a public street, the undisputed evidence shows that there was a perfectly safe sidewalk and crossing, at the proper and ordinary place, and within a few feet of the place where the plaintiff desired to cross. She voluntarily chose to cross at an irregular place. The city had not put that part of the street into use for pedestrians. Its condition was manifest and spoke for itself. Ely v. City, 81 S. W. 168; Oliver v. Denver, 13 Col. App. 315; Dougherty v. Harshheads, 159 N. Y. 151; Macomber v. Taunton, 100 Mass. 255; Holding v.St. Joseph, 92 Mo. App. 113. (c) Plaintiff was guilty of contributory negligence. Holding v. City, 92 Mo. App. 113; Wheat v. St. Louis, 179 Mo. 572. (2) The court erred in giving instruction 1 for plaintiff. By this instruction, a recovery was permitted for future' pain and suffering, without requiring the jury to find the injury to be permanent. And in this respect said instruction is not confined to the evidence in that it alleges injuries, whether set up in the petition or not. 1 Joyce on Damages, par. 215; Smiley v. Railroad, 160 Mo. 629; Girdes v. Iron Co., 121 Mo. 361; Batten v. Iron Co., 102 Mo. App. 285; Albin v. Railroad, 103 Mo. App. 318; Bigelow v. Railroad, 18 Mo. App. 367. (3) Instruction 2, given for plaintiff, was improper, (a) Plaintiff was not injured upon a sidewalk, or crossing. On the contrary, she claimed to have been injured at a point beyond the sidewalk, and not upon the crossing. Therefore, this reference to the duty to keep the sidewalk and crossing in repair was calculated to give the jury the impression that the court, as a matter of law, meant to declare the place where she fell to be within the terms “sidewalk and crossing.” It was misleading. There was nothing in the pleadings or evidence to warrant it. Ely v. St. Louis, supra; Stanley v. Railroad, 111 Mo. 606; Hurt v. Railroad, 91 Mo. 255; Arnold v. Ins. Co., 55 Mo. App. 119; Fisher v. Central Lead Co., 156 Mo. 479. (b) The knowledge which plaintiff confessed she had, of the surroundings, made all reference to the “right to presume that it was safe” wholly improper, and tended to take away from the city the right it had to have the jury consider hex-knowledge of the surroxxndings in determining the issue of contributory negligence. Lynch v. Railroad, 112 Mo. 432; Payne v. Railroad, 129 Mo. 419; Bailey v. Railroad, 152 Mo. 461; Schepers v. Railroad, 126 Mo. 670; Rapp v. Railroad, 106 Mo. 428; Nixon v. Railroad, 98 Mo. 186; Brannock v. Elmore, 114 Mo. 64.

      Henry J. Latshaw, Jr., for respondent.
    (1) The evidence shows conclusively that plaintiff was crossing at the usual and ordinary place and at the only crossing there was or ever had been on the north side of Ninth street, crossing Jefferson. (2) That part of the street was in use, and had been fox-twenty years for pedestrians, and these very stones had been laid there as stepping stones for public use for at least a year. (3) Whether or not respondent was guilty of contributory negligence was, under the facts in this ease, clearly a question for the jury, and they were properly instructed upon that issue. That the place where plaintiff was crossing when she fell was the usual and ordinary place, and in fact the only place for people to cross at that point, is clearly established. There is no evidence in this case that plaintiff could, by the exercise of ordinary care, have discovered that the hole was there, or that the gas pipe was sticking up from the bottom of said hole, or that the stepping stones were insecure. (4) It is quite evident that plaintiff might suffer future pain, say, for months or for years, on account of said injuries, and still not suffer said pain permanently, viz., during her entire life. Plaintiff surely, under the law, is not precluded from recovering from future pain merely because said pain will not be permanent. (5) Appellant claims tbat tbe instruction assumes plaintiff was injured “on a sidewalk and crossing, ’ ’ and that it is therefore misleading. Tbe objection of appellant is not well taken, for tbe reason tbat tbe duty of tbe city is tbe same in relation to boles and dangerous places adjacent to and near its sidewalks, streets and crossings as it is in regard to tbe sidewalks, streets and crossings themselves. Bas- ■ sett v. St. Joseph, 53 Mo. 290; Kiley v. Kansas City, 87 Mo. 103; Quinlan v. Kansas City, 78 S. W. 660; Grogan v. Foundry Co. and St. Louis, 87 Mo. 321; Frank v. St. Louis, 110 Mo. 516; Wiggins v. St. Louis, 135 Mo. 558;’0/Neill v. Kansas City, 77 S. W. 64; Campbell v. City, 78 S. W. 292; Perrette v. Kansas City, 162 Mo. 248.
   GANTT, J.

This is an action against Kansas City for damages resulting from personal injuries received by tbe plaintiff June 19, 1900, by falling ibto a bole at tbe northwest corner of Ninth and Jefferson streets in Kansas City, Missouri, and striking tbe small of her back against tbe end of an iron gas pipe extending up from tbe bottom of said bole, and by a severe sprain of her left ankle, by reason of tbe turning of a stepping stone and tbe rolling of the same upon her said ankle. Tbe petition charges tbat tbe city negligently maintained this bole in said street; tbat it neglectfully maintained said stepping stones near said bole; tbat it negligently permitted weeds to grow about tbat bole and these stones which obscured both, and tbat it negligently failed to maintain barriers around tbe bole and stones. There was a prayer for judgment for five thousand dollars for said damages.

Tbe answer of tbe defendant is a general denial and a plea of contributory negligence. Tbe reply denies all new matter.

On tbe application of tbe plaintiff a change of venue was granted on tbe ground of tbe undue influence of the defendant over the minds of the judges of the Jackson County Circuit Court, to Benton county, Missouri. The cause was tried on the 13th of December, 1902, in the Benton County Circuit Court, and a verdict of five thousand dollars rendered in favor of plaintiff. Motions for new trial and in arrest of judgment were filed and overruled, and time given to file a bill of exceptions, and in accordance with the leave granted, a bill of exceptions was filed on the 6th of May, 1902.

The evidence tends to show that the plaintiff is a lady of Welsh descent; she had been married, and had a young son about ten years old, but she was divorced from her husband for his fault previous to the receiving of the injuries for which she sues; she supported herself by taking in washing and kept a few boarders. About seven o’clock in the afternoon of July 19, 1900, plaintiff was sitting on the front porch of her home, 903 Jefferson street, when she saw her young son going north on the west side of Jefferson near Ninth, carrying a basket of clothes, which appeared to be too heavy for him and she started to his assistance. She went north on the east side of Jefferson street, her home being on that side, to the north side of Ninth street, and crossed west over Jefferson street. As plaintiff went to the assistance of her son, she stepped over the curbing on to a space between the sidewalk and the curb on the west side of Jefferson street just north of Ninth street, that is, near the northwest corner of Ninth and Jefferson streets. Jefferson street runs north and south, and Ninth street runs east and west, crossing Jefferson street. In this space there had been some stones which the evidence tends to show had been arranged for stepping stones to allow pedestrians to pass over the curbing to the sidewalk. The plaintiff stepped on one of these stones, which turned with her and threw her on her back, which struck upon a projecting gas pipe which had been left there when the gas post was moved. This space on the sides of these stepping stones and at this projecting gas pipe was covered at that time with weeds. The evidence shows that these stones had heen arranged for ten months to- a year prior to the time plaintiff fell.. About five or six months before plaintiff fell, the lamp post had been moved from the place where this gas pipe stuck up to the position it occupied at the time plaintiff fell. At the time plaintiff fell it appears that Jefferson street was being paved'by the city with asphaltum, and the crossing had been removedffor that purpose. The testimony on behalf of the plaintiff tended to show also that these stepping stones were on a direct line with the end of the sidewalk on the north side of Ninth street and the west side of Jefferson street. The. curbing around the hole into which plaintiff fell had been put in by the defendant city through its superintendent of curbing and sidewalks, Thomas F. Callahan, in the year 1892, and was the “regular shoulder four feet corner.” At-the time plaintiff was injured, both Ninth and Jefferson streets were public, and among the principal thoroughfares of the city, and had been for at least twenty years. Both streets at this point were sidewalked on both sides, and had gas and sewers on them. The principal cable road of Kansas City ran over the hill on Ninth street to the Union Station, and crossed Jefferson street at this corner within a short distance from where plaintiff fell. Jefferson street is the first street on the top of the hill over the incline from the Union Station. When the stepping stone turned with the plaintiff she fell and the stone rolled over on her foot and ankle and her little son was not strong enough to remove it, but a gentleman, who ran to her assistance, removed the stone from her foot and several men then picked her up and carried her in their arms to her home on Jefferson street. Dr. Branaman, who lived near by, was summoned, and testified that he did not remember whether he examined her back or not, but he found her suffering from a disloeated ankle and rnptnred ligaments of the left ankle joint; in a few days be brought Dr. Beattie with him, and they together put her foot in a plaster-paris cast. Plaintiff was confined to her house for about four weeks and was compelled to keep the plaster-paris cast on her ankle for three weeks. She testified that she could not go about very much for a couple of months, walked with crutches at first. Dr. Branaman attended her for about a month, then she called in Dr. Jones, and he treated both her ankle and her back. Dr. Jones testified that when he first examined plaintiff’s left limb he found it swollen near the ankle, and ankle was sore on pressure, and one bone in the leg diseased, the bone was inflamed with two angry looking red scars about the size of a silver dollar over the bone. He also found pus gathered in several places at or near this point, and abnormally large veins in the same region ; that the ankle joint was involved in an inflammatory process; that anchylosis was in progress at the time of the trial. On her back he found an enlargement of the sacrum and pain and tenderness at the sacrum and surrounding parts, to-wit, the lower part of the spine. He testified that an injury or fall would be the natural cause of these conditions, and that these injuries would affect the nervous system, and would naturally produce pains in the back such as plaintiff complained of, and that in a woman of plaintiff’s age, this condition was not likely to get any better. Dr. Burnett, who was appointed on the motion of the city by the court to make an examination of plaintiff, did so on December 9th, a few days before the trial. He made a specialty of nervous and mental diseases, and was a professor of the University Medical College of Kansas City. He testified he found Mrs. Haxton in only fair physical condition for a woman of her age, that she complained of pain over what is known as the sacrum, that is, the lower end of the spinal column between the two hips; this pain incapacitated her to such an extent that she was unable to stoop or rise, or follow her work; she is not able to do the work she once was; but he found no abnormal condition in this area except on the left side of the sacrum, and there it appeared there was some thickness, a little unnatural roughness as compared with the other side. He testified he was unable to find any affection of the nerves at the base of the spinal column. The plaintiff herself testified that the projecting gas pipe struck her right on the back bone; that the pain in her back and foot was so intense she could not move; that her.ankle still bothers her, and pains her so she cannot use it like she could before her injury; that her back is so, weak, arid pains her so much that she cannot wash and do her work like she could before she was hurt; that she has tried numerous jobs to make her living since her injury, and has been obliged on account of her back to give them up, and that while she held different jobs she was able to work only half of the time. On the part of the defense there was evidence that plaintiff’s health was not good prior to her injury, but there was nothing in this evidence to indicate that her spine' or ankle had given her any trouble before that time. Numerous errors are assigned for which a reversal of the judgment is asked. The instructions will be noted further on in the opinion.

I. Three grounds are urged why a demurrer to the evidence should have been sustained. First, that there was no proof that the place at which plaintiff was injured was in a public street, or thoroughfare of the city. Second, that even if it was a public street, the evidence shows there, was a perfectly safe sidewalk and crossing at the proper and ordinary place and within a few feet of the'place where the plaintiff desired to cross, and instead of using that plaintiff voluntarily chose to cross at an irregular place which the city had not put in use for pedestrians; and, third, that plaintiff was guilty of contributory negligence which would bar her recovery.

As to the first of these propositions, we think there was ample evidence to show that Jefferson street was a public street and the place at which plaintiff fell was within the lines of that street, and it was the duty of the city to make it reasonably safe for pedestrians’ use. We have already noted in the statement that Mr. Callahan, the superintendent of curbing and sidewalks, had placed this curbing on the west, side of Jefferson street from Eighth to Ninth streets in the fall of 1892, and at the time this accident or injury occurred to Mrs. Haxton, the street was being paved with concrete preparatory to laying asphaltum thereon. The facts concerning this casó distinguish it from Downend v. Kansas City, 156 Mo. 60, and Ely v. St. Louis, 181 Mo. 724. In this case, unlike those, the testimony of policeman Kirk shows Ninth street, where it crosses Jefferson street, was one of the principal thoroughfares of the city, and the same could be said of Jefferson street. We do not deem it necessary to set forth the evidence at' length to show that both of these streets were clearly public highways which it was the duty of the city to keep in reasonably safe condition for those traveling over them for business or pleasure.

The next contention is that the demurrer should have been sustained because appellant says there was a perfect sidewalk and crossing at the ordinary place and plaintiff voluntarily chose to cross at an irregular place. This seems to be based upon a question put to the plaintiff and her answer to it as follows: Q. “You' could have walked around and stepped upon the sidewalk from the east side, there where people cross the streets?” Ans. “I could, but I did not doit.” Clearly counsel meant north side instead of east side, as there was no possible way of getting to this sidewalk from the east side of any place. Q. “And you could have stepped upon the sidewalk from Ninth street?” Ans. “ Yes, I could have gone that way. ” Q. “ But you did not?” Ans. “No.” We think it is plain the demurrer should not have been, sustained on this ground, because there was much evidence to show that plaintiff was crossing at the usual and ordinary place and over the crossing that had been used for a long time, on the north side of Ninth street crossing Jefferson, and according to plaintiff’s testimony her use of the stepping stones was not negligence in the circumstances, as they had no appearance of danger and seemed to have been used by the public generally in passing that way, and the-testimony tended to show that these stones had been laid there as stepping stones for public use for at least a year.

And this leads to the next contention that she was guilty of contributory negligence, as a matter of law, in attempting to cross on these stepping stones. Whether or not she was guilty of contributory negligence was under the testimony clearly a question for the jury, and they were instructed upon that issue.

That the place where plaintiff was crossing when she fell was the usual and ordinary place for people to cross, at that point, was supported by the evidence of policeman Kirk, who testified that the stepping stones were right at the crossing and were in direct line with the crossing. He said, “Coming weston Ninth street, a person walking along here would strike these stones going across here between the curbing and this space, these stones look as though they had been put in there as stepping' stones to the crossing; that there was a space of about four feet between the sidewalk and the curbing, going west that way, and that there were weeds growing up around these stones; that is the regular way where the people would travel in going from the east side of Jefferson street to the west side of Jefferson street.” These facts taken in connection with the testimony tending to show that the point where she fell was not so dangerous as to deter aperson of ordinary prudence, and that the hole in which she fell and the gas pipe sticking up from the bottom of said hole were hidden from view by the weeds, authorized the jury to find that plaintiff was not guilty of contributory negligence in walking upon these stepping stones to reach the sidewalk, and tended to show at least that plaintiff, in the exercise of ordinary care, would not have discovered that the hole was there, or that the stepping stones were insecure, or that the gas pipe was sticking up from the bottom of the hole. We think there was no error in overruling the demurrer to the evidence for either of the reasons urged in its support.

II. Instruction number one given on behalf of the plaintiff is assailed for the reason that the jury were permitted to take into consideration future pain and suffering without requiring them to find that plaintiff’s injuries were permanent. This instruction was based upon the medical testimony that the injuries to plaintiff would extend into the future for years and would probably be permanent, and on the question as to what injuries the jury would consider in making up their verdict, the court in instruction numbered three directed them “that if you believe that all or any part of the physical ailments and the consequent pain and suffering which plaintiff alleges she-now has, existed in plaintiff before her alleged fall, then for all such pre-existing ailments you can award plaintiff no damages.” None of the cases cited by the learned counsel for the city go to the length which they claim. Those authorities hold that the jury may allow for future pain and suffering if the injuries, are permanent, but none of them hold that the jury cannot allow for future pain and suffering unless such injuries are permanent; on the contrary, it is well-recognized law that where the injuries are such that they are reasonably certain to continue to cause future pain and anguish, they are proper elements of damages.

III. Instruction number two for the plaintiff is challenged. It tells the jury that it is the duty of dq-. fendant city to exercise ordinary care to keep its sidewalks and crossings in a reasonably safe condition for public travel, “and you are further instructed that plaintiff had a right to presume in the absence of knowledge to the contrary that defendant had performed said duty.” The criticism is that plaintiff was not injured upon the sidewalk or crossing, and this reference to the duty to keep the sidewalk and crossing in repair was calculated to impress the jury with the view that the court as a matter of law meant to declare the place where she fell was within the terms “sidewalk and crossing” and was misleading, and that the knowledge which plaintiff confessed she had of the surroundings made all reference to her right to presume that it was safe, improper. ■ The city having assumed according to the evidence of the plaintiff to construct this crossing of stepping stones or permitted them to be so laid with its acquiescence and invited the public to use the same as a crossing, it was entirely proper for the court to give this instruction, and we think there is no merit in the objection to the instruction as far as it told the jury plaintiff had a right to presume it was safe. There was no such knowledge on the part of the plaintiff of any danger in stepping on those stones shown, that would deprive her of the right to this instruction, an instruction that has often been approved by this court under similar facts.

IV. Among other instructions for the defendant, the court gave one numbered ten, in words following: “The court instructs the jury that the defendant city has the right to place obstructions at or within the curb line which marks the boundary between the roadway and the sidewalk, while engaged in improving a street, provided enough sidewalk space is left unobstructed sufficient to accommodate public travel, and if the jury believe from the evidence that the plank sidewalk opposite the point where plaintiff alleges she fell, was of sufficient width, to accommodate public travel at that point and was unobstructed at the time she fell, and that the sidewalk from the east to the west side of Jefferson street was unobstructed, then your verdict must be for the defendant city.”

Counsel for the city insist that as this was the announcement of correct legal principles and as the jury found for plaintiff, they must necessarily have disregarded it and therefore their verdict should be set aside. A further contention is that the court having held this was a proper instruction ought to have sustained a' demurrer to the evidence. In a proper case the. instruction was well enough, but was somewhat inconsistent with the insistence of counsel for the city, in this court, to-wit, that Jefferson street was not a street. We are of opinion, however, that it has no application to the facts developed in this case. There is no evidence that the stepping stones on which plaintiff was injured were temporary obstructions caused by the improvements of the streets. For a year they had, with the knowledge of the city, been so arranged as to invite the public to use them as a walk, and were not within the line of the improvement then being made to pave the street with asphaltum, but were between the curb and the sidewalk. Moreover the jury evidently found that the cross-walk from the east side of Jefferson street was not “ unobstructed” and that the stepping stones were unsafe and negligently maintained as a walk. As to the other proposition, that the court should have sustained a demurrer to the evidence, we have already expressed a contrary opinion. Is defendant in a position to complain of the giving of this instruction? We hold not. If it properly construes instruction number ten, then it obtained from the circuit court a ruling too favorable to it. Clearly the jury did not understand that this was a peremptory instruction to find for defendant, and the defendant cannot complain of an error invited by it and in its favor. [Erickson v. Railroad, 171 Mo. 647.]

V. Complaint is made that the court erred in refusing instruction number fifteen prayed by defendant as follows: “The court instructs the jury that there is no evidence in this case of actual notice to any such city official of the alleged defect.” Policeman Kirk not only saw and knew of the dangerous condition of this place, but nineteen days before the injury occurred, notified his superiors in the usual way. Obviously it would have been error to have given' it. [Franke v. St. Louis, 110 Mo. 524.]

VI. No error was committed in denying instruction number sixteen asked by defendant on the credibility of witnesses. The court fully covered this point in its thirteenth instruction. That instruction goes as far as the courts are justified in going, without invading the province of the jury to weigh and consider the evidence.

VII. Error is also assigned in refusing instruction number seventeen, prayed by the defendant. It was as follows: ‘ The court instructs the jury that if you believe from the evidence that the place where plaintiff alleges she fell was not in the line of the cross-walk from the east side to the west side of Jefferson street and that a person exercising ordinary care and prudence would have avoided the place where plaintiff alleges she fell, then plaintiff cannot recover and your verdict must be for the defendant city. ’ ’

The court had already given instruction number nine, in the following form: “The court instructs the jury that it is the duty of persons travelling over the streets and sidewalks of the city to use their eyes and other senses to see where they are going and to avoid defects which are obvious or could be discovered by the exercise of ordinary care on their part, and if the jury believe from the evidence that plaintiff did not exercise ordinary care in stepping on the stones which she alleges caused her fall, hut hy the exercise of ordinary care could have avoided it or passed over it in safety, then your verdict should be for the defendant city.”

It is apparent, we think, that instruction number nine embodied the proposition for which defendant contends, to-wit, “that if plaintiff had used her eyes and •by the exercise of ordinary care could have avoided going upon the stepping stones she was not entitled to recover.” But this instruction was not properly modified. It assumes and does not require the jury to find that the place into which plaintiff fell and the stepping stones had the appearance of being dangerous and therefore plaintiff was bound in the exercise of ordinary care to avoid going upon them. The facts in evidence without contradiction disclose that at the time the hole was covered with weeds and the stepping stones bordered by them and there was nothing to indicate to one not accustomed to use this path that it was dangerous. Even if the court had not given instruction number nine which fully guarded the defendant’s rights, the evidence did not justify this instruction, nor was there error in refusing to advise the jury that “if the place where plaintiff alleges she fell, was not in a direct line of the cross-walk from the east side of Jefferson street to the west side thereof” she could not recover. The whole testimony showed that at the time Jefferson street was being improved, and there was no cross-walk from the east side to the west side of it, and hence the walk on which plaintiff fell could not have been in direct line with such cross-walk which had been removed pending the paving of the street at the time. On the other hand, the only evidence on the subject was that the stepping stones were in the direct line of the sidewalk on the north side of Ninth street at the west side of Jefferson street. Moreover, if, as the testimony all tends to prove, the city had caused these stepping stones to be placed there for a crossing and invited the public to use them in passing from the street across the curb to the sidewalk, the mere fact that they were not laid in an exactly direct line with what had previously been a crossing, would not exculpate the city for their negligent setting. This instruction was properly refused.

VIII. The city complains of the amount of the verdict, as excessive. Various witnesses did testify that Mrs.-Haxton had poor health before she suffered this fab- It appears she had been afflicted with hemorrhoids and had fainting spells, but it also appears that she was an industrious woman, making her living with the aid of her little boy,, by taking in washing prior to the time of her fall. There is no question that by the fall she received an exceedingly painful sprain of the left ankle and that the ligaments thereof were ruptured, and that two physicians, Drs. Beattie and Branaman,' found it necessary to put the ankle in a plaster of paris cast for three or four weeks, and Dr. Jones and Dr. Burnett afterwards found this ankle in a deplorable condition, particularly for one whose condition in life required her to stand over a washtub to make her living and to do other work requiring her to stand on her feet. All the physicians agree with our common experience that such a sprain and rupture is more painful and serious than the breaking of a bone, as a fractured bone will unite more readily than a ruptured ligament, especially in the region of the ankle. The physician testified that plaintiff’s ankle would never be as good again as it was before the hurt; and that the presence of anchylosis was in progress at the date of the trial. In addition to this the evidence tends to prove that plaintiff’s backbone struck the protruding gas pipe when she fell and the evidence tended to establish that she constantly suffered with pains in her back from this cause, and her physician testified that such an injury from such a cause would affect the nervous system and produce the pains of which plaintiff complained and, considering her age, this condition was not likely to get any better. By reason of her injuries plaintiff was compelled to give up washing and tried various ways of making at living and had been compelled to abandon them or work only half time. The verdict received the approval of the" trial judge and the jury. In view of all the evidence we are not authorized to hold that it was so unreasonable and disproportionate to her injuries as to shock the conscience of the court or to appear to be the result of passion, prejudice or mistake, and hence it must stand.

IX. The sole remaining contention is that the< circuit court of Benton county had no jurisdiction to try this cause because the law governing changes of venue from Jackson county requires that they shall be granted to some county in the “same or next adjoining circuit.” [R. S. 1890, sec. 822; Laws 1879, p. 82.]

When the change of venue was granted no exception was taken to the action of the circuit court of Jackson county in granting it and no motion to strike it from the Benton docket was entered. Defendant voluntarily entered its appearance in the Benton court and submitted to its jurisdiction without objection of any kind. The circuit court of Benton county was and is a court of general jurisdiction and had jurisdiction of this class of cases and the parties voluntarily submitted themselves to its jurisdiction. By so doing they waived any objection they might have had by reason of the statute governing changes of venue from Jackson county.

This is too well settled to be longer questioned in' this State. [State v. Lynn, 169 Mo. 670, 671; State ex rel. v. McKee, 150 Mo. 238; Wright v. Kansas City, 187 Mo. 678.]

One other matter need be mentioned. The circuit court of Benton county permitted a correction of a clerical mistake made by the clerk of Jackson county in certifying tbe transcript to Benton, by changing the word “right” to “left” in describing the injury to her leg. It is apparent the defendant was neither surprised nor injured by its correction or amendment. We find no reversible error, and the judgment is affirmed.

All concur.


author: FOX, J.

text:
    CHARITON COUNTY, Appellant, v. HARTMAN.
    Division Two,
    June 20, 1905.
    1. INSANE PERSONS: County Charge: Recovery By County. Where a person has been adjudged insane and indigent and therefore supported by the county at an eleemosynary institution, and the guardian and curator of such person, while she is so supported by the county, recovers for her and in her name certain property, the county cannot recover from her curator and guardian; nor from her estate, the amount of the property by him so recovered, in payment to the county for money by it spent in her maintenance. An action of that character can be maintained only against the parent responsible for her support.
    2. -: -: -: From Curator: Statute. Neither at common law nor under 'the statute can the county recover from the guardian and curator of an insane person, personally or as the representative of her estate, money by it expended in maintaining the ward at a poor farm or an asylum, unless that curator is her parent and she a minor. The statute allowing a recovery by the county “from any person who, by law, is bound to provide for the support and maintenance of such person” has reference to parents of minor insane children.
    Appeal from Chariton Circuit Court. — Hon. Jno. P. Blitter, Judge.
    Affirmed.

      L. N. Dempsey with L. Benecke for appellant.
    The guardian in his representative capacity is the proper person to sue for the recovery of funds expended by the county in behalf of his insane ward. It is made the duty of the guardian of an insane person to pay for his support and expense out of the estate of such ward. R. S. 1899, secs. 3496, 558. The guardian in his representative capacity is liable to the extent of his ward’s estate for necessaries furnished to the ward. Meyer v. Temme, 72 111. 574; Turner v. Flagg, 6 Ind. App. 563; Booker v. Booker, 60 Ind. 550; Hastings v. Bachelor, 27 Tex. 259; R. S. 1899, sec. 3696. The moment the guardian became possessed of means belonging to the estate of his ward, it became his duty to apply the same for support and maintenance of the ward. Failing to perform his duty in this respect, the county court acted in strict harmony with section 3697, Revised Statutes 1899, by instituting suit against him. M'ontgomery Co. v. Gtupton, 139 Mo. 309.

      J. G. Wallace for respondent.
   FOX, J.

This was a suit instituted on the 15th day of October, 1901, in the Chariton County Circuit Court by appellant, as plaintiff,, against respondent as defendant, seeking to recover money expended by Chariton county for the maintenance of Magdalena Miller, a person of unsound mind, of whom respondent was the legal guardian and curator.

The first amended petition upon which the case was tried, ommitting caption and signature, is in words and figures as follows:

“The county of Chariton, plaintiff, sues under the provisions of section 3697, Revised Statutes 1899, and for its first amended petition for cause of action states: That one Magdalena Miller was, on June 13, 1872, and for several years prior thereto had been, a resident citizen of the county of Chariton and State of Missouri, and that on the said 13th day of June, 1872, under due process of law, she was adjudged (by the county court of Chariton county) to be a person non compos mentis, or insane, and at the time of adjudication she was also an indigent person and a proper subject to be made a charge upon the county of Chariton, and that it was held and adjudged by said county court of Chariton at said time, that she, said Madgalena Miller, be maintained as an indigent or poor person, at the expense of the county of Chariton, either in an asylum of this State or at the county poor farm of Chariton county; plaintiff further states that in compliance with the finding and judgment of said county court said Madgalena Miller was' supported and maintained at the expense of Chariton county, at either the State insane asylum or at the county poor farm from said 13th day of June, 1872, up to this day, and is still an inmate of the county poor farm at the exclusive expense of the county of Chariton aforesaid, being still insane.
“Plaintiff further states that subsequent to said 13th day of June, 1872, to-wit, on the 2d day of February, 1889, the above-named defendant, J ohn T. Hartman, was, upon his application, appointed by the probate court of Chariton county, as guardian and curator of said Magadalena Miller, and that he qualified as such and has ever since acted as the duly qualified and acting guardian and curator of the person and estate of said Magadelena Miller, and plaintiff further states that since bis, said John T. Hartman’s, appointment as such guardian and curator, he has recovered and become possessed of certain real estate and personal estate, to-wit, one house and lot in the city of Brunswick, and the Sum of five hundred dollars belonging and being the property of said ward, Magadalena Miller, and which said money and property are still in the hands of or under the control of said John T. Hartman as the guardian of said Magadalena Miller as aforesaid.
“Plaintiff further states that after said John T. Hartman became possessed of said real and personal property as assets of the estate of his said ward, said Magdalena Miller, it became Ms duty to apply the same for the support and maintenance of Ms said ward, said Magdalena Miller, but said defendant, John T. Hartman, failed and refused to apply said funds and assets of his said ward to the support or maintenance of her, and also refused to reimburse plaintiff for the moneys paid by plaintiff for the support and maintenance of said Magdalena Miller, from the 13th day of June, 1872, continuously up to the present date, notwithstanding the fact that he, said John T. Hartman, well knew that said Magdalena Miller was supported and maintained entirely and exclusively at the expense of Chariton county as an indigent person.
“Plaintiff further states that by virtue of the premises, and the statutes as made and provided, plaintiff is entitled to recover of defendant the amount by it expended for the care and maintenance of said Magdalena Miller during the last five years, namely, the silm of five hundred dollars, being at the rate of one hundred dollars per year, and which sum defendant has on hand or available as assets belonging to the estate of his said ward, said Magdalena Miller aforesaid.
“Wherefore, plaintiff prays for judgment against defendant for the sum of five hundred dollars to be paid out of the assets of the estate of said Magdalena Miller and the costs of suit to be adjudged against defendant, John T. Hartman, personally, and for such further orders and judgments as may be right and proper. ’ ’

To this petition, the defendant interposed a demurrer, as follows:

“The defendant comes now and demurs to plaintiff’s first amended petition and for grounds of his demurrer assigns the following reasons:
“First. Because this court has no jurisdiction of the subject of the action.
“Second. Because this court has no jurisdiction of the person of the defendant in this: that the first amended petition shows defendant to be the duly qualified and acting guardian and curator of one Magdalena Miller, exercising authority as such under and by virtue of his appointment by the probate court of Chariton county, Missouri, and that said probate court has original jurisdiction of all matters pertaining to guardianship of insane persons in its said county.
“Third. Because there is a defect of parties defendant in this: that the first amended petition shows that if any cause of action exists it is against the therein named Magdalena Miller, an insane person, and she is the proper party defendant.
“Fourth. Because said first amended petition does not state facts sufficient to constitute a cause of action. ’.’

On the 7th day of May, 1902, this demurrer was submitted to the court and was by the court sustained, and final judgment rendered for defendant upon the demurrer, from which plaintiff, in due time and form, prosecuted this appeal and the record is now before us for review.

OPINION.

It is apparent from the record that there is but one legal proposition presented to our consideration, that is the correctness of the action of the trial court in sustaining the demurrer to the petition filed in this cause.

Upon the consideration of the proposition presented, the demurrer must be treated as admitting every fact pleaded in plaintiff’s petition to be true; hence the only question involved is, does the petition state sufficient facts, which if true, would entitle plaintiff to recover? The petition fully pleads all the facts. It is conceded by plaintiff that defendant’s ward, Magdalena Miller, was on June 13, 1872, and for several years prior thereto had been, a resident citizen of the county of Chariton and State of Missouri, and that on the said 13th day of June, 1872, under due process of law, she was adjudged (by the county court of Chariton county) to be a person non- compos mentis or insane, and at the time of adjudication she was also an indigent person and a proper subject to be made a charge upon the county of Chariton and that it was held and adjudged by said county court of Chariton at said time, that she, said Magdalena Miller, be maintained as an indigent or poor person, at the expense of the county of Chariton, either in an asylum of this State or at the county poor farm of Chariton county. It is also made to appear from the allegations in the petition, that defendant, John T. Hartman, subsequent to the 13th day of June, 1872, to-wit, on the 2d day of February, 1889, was by the probate court of Chariton county appointed guardian and curator of said Magdalena Miller and qualified as such and has since such appointment recovered and become possessed of certain real and personal estate of his ward. Upon this state of facts is plaintiff entitled to recover ? We have reached the conclusion that there could be no recovery. There is no contractual relation either express or implied between plaintiff and defendant Hartman or his ward.

The order of the county court of June 13,1872, taking charge of Magdalena Miller as an indigent insane person was in pursuance of the statute, imposing the burden upon the counties of supporting their indigent insane, and the fact of furnishing support in pursuance of such order raises no implied promise to repay for such support. In Montgomery County v. Grupton, 139 Mo. l. c. 308, Brace, J., speaking for the court, thus disposed of this question: “It is well settled at common law that the provision made by law for the support of the poor is a charitable provision, from which no implication of a promise to repay arises, and moneys so expended cannot be recovered of tbe pauper, in the absence of fraud, without a special contract for repayment. [Selectmen of Bennington v. McGennes, 1 D. Chip. 44; Benson v. Hitchcock, Adm’r, 37 Vt. 567; Inhabitants of Deer-Isle v. Eaton, 12 Mass. 328; Inhabitants of Stow v. Sawyer, 3 Allen 515; Charlestown v. Hubbard, Adm’r, 9 N. H. 195.] A person so relieved, whether he had or had not property, never was liable to an action for such relief at common law. [Inhabitants of Grovel and v. Inhabitants of Medford, 1 Allen 23.] ‘The mis judgment of the officers of the poor as to the necessities of the person relieved raises no implied promise on the part of such person that he will repay moneys expended in his behalf. ’ [City of Albany v. McNamara, 117 N. Y. 168.] ”

It is insisted by appellant that this action can be maintained under the provisions of section 3697, Devised Statutes 1899. This section provides: “In all cases of appropriations out of the county treasury for the support and maintenance or confinement of any insane person, the amount thereof may be recovered by the county from any person who, by law, is bound to provide for the support and maintenance of such person, if there be any of sufficient ability to pay the same. ’ ’

This action is nothing more nor less than one against the estate of the insane ward, and it is a misconception of the provisions of the sections quoted to say that such an action is contemplated by its provisions. It is apparent that section 3697 has reference to the relation of parent and child, and where a minor child becomes insane, and the county furnishes it support and maintenance, the father who, under the law, is bound to provide for the support and maintenance of his children, would fall within the provisions of that section, and a recovery could be maintained against him; but the statute falls far short of embracing within its provisions actions against the guardian of the ward, personally, or against him as the representative of the estate. The principle announced in Montgomery County v. G-upton, supra, is clearly applicable to the case at bar. In that case the insane patient, Ellen Collins, had been furnished support and maintenance similar to the case at bar; subsequently an estate was discovered; she died and the court sought under the provisions of section 5557, Revised Statutes 1889, the same as section 3697, Revised Statutes 1899, to recover against her estate for such support and maintenance; it was held that such action was not embraced within the provisions of the statute and could not he maintained.

It may be that, after the discovery of an estate of an insane patient being cared for by the county and a guardian and curator having been appointed for such patient, some course might he pursued by the county or prohaté court in respect to such ward, as would compel the guardian and curator to furnish its support and maintenance out of the estate in his hands; but we think it is clear -that this action, under the provisions of the statute, cannot' be maintained.

With these views it results in the conclusion that the action of the trial court in sustaining the demurrer was proper, and its judgment should he affirmed, and it is so ordered.

All concur.