author: FARIS, J.

text:
    THE STATE v. THEODORE BUENTE, Appellant.
    Division Two,
    March 24, 1914.
    1 TWICE IN JEOPARDY: Court of Criminal Correction. Section 21, page 198, Law 1869, authorizes the judge of the court of criminal correction of St. Louis, after a defendant has been put upon trial before a jury therein and evidence heard, upon an information charging him with assault with intent to kill, to discharge the jury and to dismiss as to the lesser offense, if it shall appear that the defendant has been guilty of felony, and to hold him to answer for the felony in the criminal court, and thereafter he may be convicted of either the felony or a misdemeanor only in said criminal court; and said statute is not void as in conflict with the constitutional provision as to former jeopardy.
    2. -: Fixed by Constitution. Whatever may have been the rule at common law by which it was determined when a defendant had been in former jeopardy, the question is now to be determined by the language of our State Constitution on the subject, since, whenever the State speaks through either Constitution or statute, the common law is pro tanto supplanted.

      3. -: -: Fifth Amendment to U. S. Constitution. The question of whether a statute violates the Fifth Amendment of the Constitution of the United States is of no concern in determining whether or not defendant has been twice put in jeopardy, since that amendment is no limitation upon the powers of a State, neither does it apply to them.
    4. -: Constitutional Provision: Rule of Construction. Wherever the constitution of a State, like the Fifth Amendment to the U. S. Constitution, simply, in words or substance, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” the strict common law rule applies, and whenever the accused has been properly put upon his trial, upon a valid indictment before a competent jury in a court having jurisdiction to hear the cause and to make true deliverance of defendant, jeopardy attaches upon the swearing of the panel of trial jurors; but, where the provision of the constitution is, as it is in Missouri, that “nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty,” a defendant is not put in jeopardy by merely being put on trial before a jury sworn to his deliverance; but a statute which authorizes the judge of the court of criminal correction of St. Louis, when it shall appear that the defendant has committed a felony, to dismiss the lower offense, discharge the jury,' and hold defendant to answer to an indictment in the criminal court, and authorizes his trial in said court for either the felony or a misdemeanor, upon an indictment which in every essential feature is a replica of the information' filed in the lower court, is not violative of the said constitutional provision, and defendant’s plea of said former proceedings in bar of the indictment should be overruled. Under that constitutional provision an acquittal “by a jury” is the condition precedent to the attaching of jeopardy, if the requirements of the statute have been observed.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Affirmed.

      Kurt Von Reppert for appellant.
    (1) The facts stated and contained in defendant’s plea in bar and of former jeopardy stand admitted on the record, for the demurrer of the State admits the facts therein stated and the inferences to be drawn therefrom. This is axiomatic, (a) That no one shall be twice pnt in jeopardy for the same offense is a well-established principle of civil law, and is embodied in the very elements of the common law, and is incorporated in the Constitution of the United States and in the Constitution of Missouri. Sec. 23, art. 2, Constitution of 1875; U. S. Constitution, art. 5, Amendments. (b) The term “jeopardy” signifies the danger of conviction and punishment which the defendant in criminal prosecution incurs when a valid indictment has been found and a petit jury is impaneled and sworn to try the case and a true verdict render. State v. Manning, 168 Mo. 427; Cooley’s Constitutional Limitations (7th Ed.), ch. 10, pp. 467, 468; State v. Webster, 206 Mo. 571; State v. Snyder, 98 Mo. 555; State v. Wise-back, 139 Mo. 214; State ex rel. v. Williams, 117 Mo. App. 564; 1 Bishop on Criminal Law (6 Ed.), sec. 1043; •State v. Hayes, 78 Mo. 605. (c) By the term “same offense” is not signified the same eo nomine, but the same act or omission. Commonwealth v. Hart, 149 Mass. 7.; Boswell v. State, 111 Ind. 47; State v. Thornton, 37 Mo. 360. (d) That the offense charged in the information dated January 12, 1912, was included and was a necessary element in and constituted an essential part of the indictment herein, and that both are in fact but one and the same transaction, is self-evident. State v. Burke, 89 Mo. 639; 12 Cyc. 259, 260, 261, 2801. (e) “The prosecuting attorney may in the first instance file an information charging a person guilty of a less crime than that with which he should have been charged. A person convicted of a less offense cannot again be put upon trial for a greater, where the same facts are required to establish it as in the former case. State v. Hatchen, 136 Mo. 643. (2) The State relied on Sec. 4902, R. S. 1909. (a) Defendant contends that said section is unconstitutional, null and void in its application to the defendant in the case at bar, in that it is clearly in violation of section 23, article 2, of the Constitution of Missouri, in that it permits and a-lows this defendant to be again or twice put in jeopardy of life or liberty for the same offense, (b) It is likewise in violation of article 5 of the Amendments to the Constitution of the United States in its application to the defendant in the case at bar, in that it permits and authorizes this- defendant to be twice put in jeopardy of life and limb for the same offense. See cases under point one.

      John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.
    A plea in bar was filed alleging former jeopardy, in that the defendant had been placed on trial before the St. Louis Court of Criminal Correction on the charge of assault and battery, and after the jury of twelve good and lawful men had been sworn and evidence on the part of the State given, the court dis: charged the jury and ordered the defendant held for the grand jury to answer the charge of assault with intent to kill, a felony, and the charge filed in the case at bar, in pursuance to the ruling of the court above referred to. The State filed a demurrer to the plea in bar filed as aforesaid, and therefore the facts stated in and embraced in the plea are admitted. State v. Anderson, 186 Mo. 34; 12 Cyc. 368. Article 5 of the Amendments to the Constitution of the United States is not controverted by the ruling of the court in the case at bar for the reason that this amendment- of the Federal Constitution applies only to Federal laws and trials and not to State prosecutions. 12 Cyc. 259. In the case of State v. Gustin, 152- Mo. 112, this court has held that a conviction for assault and battery in a mayor’s court is not a bar to a prosecution in the circuit court. If the charge of assault and battery, which was the charge under which this defendant was brought to trial in the Court of Criminal Corrections, was a city charge and not a State charge, the case of State v. Gustin above would apply, for this case holds that the trial on a city charge, although substantially to the same effect, does not bar a subsequent trial on a State charge. State v. Wister, 62 Mo. 592; State v. Muir, 86 Mo. App. 642; State v. Klaumeiser, 213 Mo. 119; State v. Gustin, 152 Mo. 108.. However, assuming that the charge of assault and battery, as used in the court of criminal correction of St. Louis, was the same as common assault under Sec. 4484, R. S. 19091, still a conviction for the same would not bar a prosecution for a greater offense such as “felonious assault,” “assault with intent to kill” or “murder.” However, we wish to call the court’s attention to the fact that there had been no conviction before the court of criminal corrections of the city of St. Louis, but the trial had proceeded only so far as the introduction of part of the evidence on the part of the State, or city, as it might be, and the magistrate, within the discretion allowed, discharged the jury and directed that the defendant be indicted for a felony as provided under Sec. 4902, R. S. 1909. Kelly’s Criminal Law & Procedure (3 Ed.), sec. 233; State v. Huffman, 136 Mo. 63. Common assault is not the same offense as assault with intent to kill. Perhaps the constituent elements of common assault would appear in the proof of assault with intent to kill, but the constituent elements of assault with intent to kill would not necessarily appear in the proof of a case of common assault. Secs. 4481, 4484, R. S. 1909; Kelly’s Criminal Law & Procedure (3 Ed.), secs. 574, 576; Larson v. State, 140 N. W. 176; Cunningham v. State, 80 Ga. 4; State v. Hill, 122 La. 711; State v. Reiff, 14 Wash. 664; State v. Warren, 79 Neb. 526; Com. v. Bubser, 14 Gray, 83; State v. Gillett, 56 Iowa, 459; Com. v. Harris, 8 Gray, 470; Ex parte Burke, 58 Miss. 50. A thorough discussion of the question involved in the case at bar may be found in 44 L. R. A. (N. S.) 617 to 621 in foot notes. In regard to the question of former jeopardy in the ease at bar the ruling of the circuit court was1 proper and deserves the approval of this court.
   FARIS, J.

— Defendant was prosecuted in the circuit court of the city of St. Louis upon an information charging him with assault with intent to kill, for that, it was averred, he had stabbed one Rosenthal with a knife. Defendant upon his trial was found guilty by a jury of common assault only and his punishment was assessed at six months’ imprisonment in the city jail and a fine of one hundred dollars. The case is here upon a constitutional question raised by the defendant in the manner below to be pointed out.

Defendant in a proper and timely way filed in the court nisi a plea in bar in which he averred former jeopardy and prayed that for reason thereof he should be finally discharged. In substance, his plea of former jeopardy was based upon the fact that theretofore upon a proper information filed in the St. Louis Court of Criminal Correction by an associate prosecuting attorney of the city of St. Louis he had been charged with assault' and battery upon the said Rosenthal; that he pleaded not guilty to the latter charge, and was thereupon, for the misdemeanor aforesaid, placed upon his trial in the court of criminal correction before a jury duly impaneled and sworn and charged with his deliverance; that all of the testimony on the part of the State in the trial of the defendant for the misdemeanor aforesaid was fully heard by the court, and that thereupon, over the objections and against the protest of defendant, the judge of the court of criminal correction discharged the jury and made an order that defendant be held in bail to the grand jury to answer the charge of assault with intent to kill the said Rosenthal. Further it was averred that the two charges were identical, in that they were based upon identical facts and occurrences. Other facts were set out in the plea in bar with which we need not burden this statement. Suffice it to say that in our view, upon the question of form and contents, the plea in bar was good. The State in the court nisi interposed a demurrer to the plea in bar, for that it did not charge facts sufficient to constitute a bar against the trial of defendant. This demurrer was sustained upon the point of law involved in the case, as raised by the demurrer.

Defendant in his plea in bar attacked the constitutionality of section 4902, Revised Statutes 1909', but for the reasons hereinafter stated this question falls out of the case. He also urged that the facts which he averred, and which the demurrer in law admits, of themselves made out an affirmative showing that he had been twice put in jeopardy of life or liberty for the same offense, in violation of the provisions of section 23, article 2, of the Constitution of Missouri. It is upon this constitutional question that we obtain jurisdiction.

Touching the facts shown upon the trial we may say that the testimony was conflicting. Upon the facts occurring at the immediate moment of the stabbing of Rosenthal by defendant there were no eye-witnesses, save and except Rosenthal and defendant himself. Prior to this stabbing there had been a saloon brawl between Rosenthal and defendant, in which, from the contradictory testimony, it is difficult to say who was the aggressor, though Rosenthal seems to have been the victor. After this encounter was over the defendant left the saloon by a rear door and Rosenthal purchased a bottle of beer at the bar. Rosenthal seems only to have drunk a portion of this beer when he also left the saloon by the same door out of which defendant had gone, for the purpose,’however, as he avers, of going to a toilet room. In a dark corridor or alleyway back of the saloon and leading to and near the toilet room, Rosenthal was attacked by defendant with a knife and cut twice; once upon the thumb, and once in the left side, at about the seventh rib'. The stab wound in the side was somewhat serious, and though it was prevented, through having struck the rib, from entering the cavity, it was of such seriousness as to entail upon Rosenthal some five weeks’ illness and to necessitate his remaining in a hospital for about a week.

Defendant urged self-defense, and while admitting that he liad stabbed Rosenthal, he averred that he did so while Rosenthal was attacking him.

There is no point made as to the sufficiency of the evidence, which, after all, upon the contradictions shown by the record, was for the jury and is not for us. Such other facts as may arise in the case and become necessary to be stated in order to make clear the questions of law involved, will be set out in the opinion.

I. The most serious point in this case and that which is most strenuously urged upon us is that of former jeopardy, which learned counsel for defendant insistently urges accrued to the appellant when the jury was sworn to try him in the court of criminal correction upon the charge of assault and battery. It is urged that the fact that no verdict was rendered by the jury in that court, but that the trial was stopped by the judge thereof, as soon as he perceived, as he found and believed, that the defendant ought to have been put upon his trial for a higher offense, does not change the legal situation.

The State relies upon a statute which.it is conceded applies to the facts before us. This statute is as follows:

“If, upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law, to a felony, such person shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterward prosecuted for felony on the same facts, unless the court before which such trial may be had shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor.” [Sec. 4902., R. S. 1909.]

But it is contended that while the section set out does apply to all and every of the facts in the instant case this section is unconstitutional. That it is violative of the Fifth Amendment to the Constitution of the United States, and of section 23 of article 2 of the Constitution of Missouri.

The St. Louis Court of Criminal Correction, wherein the prosecution of defendant upon the information charging him with assault and battery was begun, and partly heard, to a stage, however, short of a verdict or judgment, has jurisdiction to hold preliminary hearings in felony cases just as and to a like extent as this power is given by statute to justices of the peace out in the State. [Sec. 7, p. 195', Laws 1869.] Likewise, such court has jurisdiction concurrently with justices of the peace to try misdemeanor cases. [Sec. 13, p. 196, Laws 1869.]

Learned counsel for defendant devotes some considerable part of his brief and no mean quantum of learning in an effort to prove that one reason for the constitutional invalidity of section 4902, supra, is that it vests in' the justice of the peace or court trying the misdemeanor case, a discretion to toll the constitutional guaranty against being put twice in jeopardy, at the will, whim or caprice of the justice of the peace or court. It may be that such a criticism is of itself a serious danger to the constitutional life of section 4902. But be that as it may be, touching this phase we are not compelled to pass and do not pass; for the reason that learned counsel has inadvertently overlooked a section in tile act creating the St. Louis Court of Criminal Correction, which section is not susceptible of the objection urged and which is directly in point and applicable to the facts in the instant case. This section is as follows:

“If in the course of any proceeding in said court by information or otherwise, it shall appear that the defendant has been guilty of felony, the court shall dismiss as to the lesser offense, and proceed to examine the matter, and commit or bail the defendant to answer to an indictment in the St. Louis criminal court, and if upon the trial of a party charged with felony in the St. Louis criminal court it should appear that the defendant is guilty of a misdemeanor only, the case shall not be therefor dismissed, but shall be proceeded on to judgment in said criminal court, to the same effect as if the defendant had been tried for misdemeanor in the court of criminal correction.” [Sec. 21, p. 198, Laws I860.]

Manifestly it must be conceded that the above section covers the facts in this case like a blanket. No attack on the constitutionality of this section is made. But it is probable that we are compelled to examine the constitutional question urged by defendant tbri he has been, upon the facts, put twice in jeopardy, from all of the four corners. So, unless section 21 of the Act of I860 (which act established the court of criminal correction, conferred upon it jurisdiction and prescribed its duties, privileges and limitations), is invalid by reason of being opposed to section 23 of article 2 of the Constitution, the point must be ruled against the defendant.

Nothing is plainer than that we come in the last analysis to the words of our own Constitution, the applicable part of which is section 23 of article 2, which reads thus:

“That no person shall be compelled to testify against himself in a criminal cause, nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty; but if tbe jury to which the question of his guilt or innocence is submitted fail to render a verdict, the court before which the trial is had may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the next term of court, or, if the state of business will permit, at the same term; and if judgment be arrested after a verdict of guilty on a defective indictment, or if judgment on a verdict of guilty be reversed for error in law nothing herein contained shall prevent a new trial of the prisoner on a proper indictment, or according to correct principles of law. ’ ’

We need not concern ourselves as to whether either this discussion, or the law, is at all affected by the fact that the act creating the court of criminal correction antedates the adoption of our present Constitution, since the language of the Constitution of 1875 on this point is almost an exact copy of that of 1865', and in substance and meaning precisely the same. [Cf. section 19 of article 1, Constitution of 1865:] Likewise, we need not trouble ourselves in discussing whether the section of the law under inquiry violates, the Fifth Amendment to the Constitution-of the United States, since while long and seriously debated, it is now a settled and closed question that the provisions of the Fifth Amendment are neither limitations upon nor do they apply to or bind the several States. [1 Bishop’s New Crim. Law (8 Ed.), 981; Thorington v. Montgomery, 147 U. S. 490; State v. Rudolph, 187 Mo. 67; Capital City Dairy Co. v. Ohio, 183 U. S. 238; United States v. Keen, 1 McLean, 429.] Neither do we neéd to consider what the common law was on the question of what constitutes jeopardy, even if the common law on this point were a stable and fixed thing. For while in England the basic principle, “that,” as Blackstone expressed it, “no man is to be brought into jeopardy of his life more than once for the same offense” (4 Bl. Com. 335), is axiomatic, it was not, and is not yet so far fundamental as to rise, as it does with us, to the dignity of a constitutional guaranty. Speaking of it in times fairly recent, Cockbijrn, C. J., said: “We are dealing here, not with one of those fundamental principles that lie at the foundation of our jurisprudence, , . . but uAth a matter of practice which has fluctuated at various times, and which even at the present day may perhaps not be considered as finally settled.” [Reg. v. Winsor, 10 Cox C. C. l. c. 308.]

But whatever the common law may have been, and whatever the present law of England and the formative stage thereof, as to being fixed or unstable, may be, does not matter to us, so far as we are here concerned. The common law has been changed by the statute quoted. The vexing and unsettled questions of, “What is jeopardy?” and, “What is the same offense?” and the more comprehensive one of, “When does jeopardy attach?” all fall out of this, case by reason of this statute, which fits the facts here on all-fours. We pause to say that even if the subsequent conviction of the defendant in the circuit court for a misdemeanor only, when he was on trial there for a felony, were not here a coincidence merely, as it indubitably was, instead of being jurisdictional, yet this incidental contingency is provided for and met by the provisions of the section under inquiry, where it is provided that upon a trial for a felony in the criminal court if it shall appear that only a misdemeanor has been committed, the cause shall nevertheless proceed to final judgment. [Sec. 21, p. 198, Laws 1869, supra.]

If the provisions of this section contravene those of section 23, article 2, of our Constitution, defendant has been put twice in jeopardy and we must discharge him. For whatever the common law may be, or has been; whatever the rule may be in other states upon their variant constitutional provisions, we come back at last to our own Constitution. For, says Bishop, in discussing this very question: “The constitutional command, let us not forget, is the supreme authority; and judicial decisions, however numerous, are subject to be corrected by it.” [1 Bishop, New Crim. Law, 1012.] The pertinent clause of our Constitution as contained in section 23, supra, is “nor shall any person, after being once acquitted by a jury, be again, for the same offense, put in jeopardy of life or liberty.” We have seen the condition of the common law on this point, and that the decision of the matter is referable solely to the Constitution. We find wherever the constitution of a State, like that of the Fifth Amendment to the Constitution of the United States, simply in words, or in substance, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” that then there is no conflict of authority upon the proposition that what has mistakenly been deemed to be the strict common law rule applies, and that within the meaning of such a constitutional provision as we quote above, whenever the accused has been properly put upon his trial, upon a valid indictment before a competent jury in a court having jurisdiction to hear the cause and to make true deliverance of defendant, jeopardy attaches upon the swearing of the panel of trial jurors. [State v. Blevins, 134 Ala. 213; People v. Hunckeler, 48 Cal. 331; People v. Ny Sam Chung, 94 Cal. 304; Ingram v. State, 124 Ga. 448.] Hundreds of cases thus holding may be cited; there is no variance in the substance of this view. On the contrary, a different view has been taken upon a constitution such as ours where the condition of “acquittal” is a condition precedent to the attaching of jeopardy. We have seen that in principle this follows necessarily. The history of the matter and the common law riile, or lack of a rule, regarded, there should be no two views about this. “Acquittal by a jury,” says Cyc. “is not usually requisite to constitute former jeopardy, but under a constitutional provision that no person shall be put in jeopardy a second time after having been once acquitted ‘by a jury’ the immunity extends only to those who have been so acquitted.” [12 Cyc. 275.] This statement is fully borne out by the cases decided in South Carolina under the Constitution of 1868, of that State, which provided: “No person, after having been once acquitted by a jury, shall again for the same offense be put in jeopardy of his life or liberty.” Under this provision it was uniformly held that a trial and an acquittal by a jury was a necessary condition precedent to the immunity of twice in jeopardy. [State v. Shirer, 20 S. C. 392; State v. Briggs, 27 S. C. 80; State v. Wyse, 33 S. C. l. c. 589; State v. Richardson, 47 S. C. 166.] After the adoption, however, of the Constitution of South Carolina of 1895, which so changed the provision under inquiry as to make it read in substance as the Fifth Amendment to the Constitution of the United States reads, the rulings of that State changed and fell in line with those of State v. Blevins, supra, and with the holdings of the Federal Courts. [State v. Richardson, supra.]

The peculiar provision of our own Constitution, which is in pari materia with that of South Carolina on this point, seems to have been lost sight of in the adjudged eases. This may be explained, possibly, in part by the fact that our Missouri cases dealt with the matter of former jeopardy at first hands, and not in relation to the constitutionality of a statute designed to further and expedite trials and to eliminate outrageous miscarriages of justice by attenuated technicalities. That this is the matter presently in hand must not be left out of mind. For granting, arguendo, the similarity in law of the ease of assault and battery with that of assault with intent to kill; the jurisdiction of the court and the right of the officer who began the misdemeanor case to likewise legally begin a prosecution' for a felony (which section 27, p. 404, Laws 1909, forbids), we yet have before us the mandate of the organic law that “an acquittal” is a condition precedent to jeopardy. It cannot be logically urged that since section 23 of our Bill of Rights contains three exceptions only to-wit: (a) if the jury fail to agree; (b) if the verdict be arrested on a defective indictment, .and (c) if judgment be reversed for error in law, the rule of expressio unius, exclusio alterius est, applies in all strictness. It is patent that the' makers of the Constitution did not mean and could not have meant that what they said should be thus narrowly construed. This, for the reason that we have read into this section, by our own decisions, exceptions which we rule do not produce jeopardy, but which are not included in either of the three set out in Section 23. We have ruled or expressly approved cases which did rule that, after the jury was sworn to try an accused person upon a valid indictment, before a court having jurisdiction, the rule of twice in jeopardy did not apply if the submission was set aside on account of: (1) The sickness of the trial judge (State v. Ulrich, 110 Mo. 350.); (2) the death of a juror (State v. Ulrich, supra; Rex v. Edwards, 4 Taunton, 309); (3) the expiration of the term of court before the conclusion of the trial (State v. Jeffors, 64 Mo. 376; State v. Ulrich, supra; United States v. Perez, 9 Wheat. 579); (4) an objection to the indictment by demurrer or motion to quash after the jury was sworn to try defendant (State v. Hays, 78 Mo. 600); (5) the discharge of defendant by his own consent express or implied (State v. Hays, supra; Com. v. Stowell, 9 Met. 572; State v. Slack, 6 Ala. 676); (6) that the conviction of an accused person was intended by the makers of the Constitution to be a putting him in jeopardy, equally with an acquittal, though conviction is not named specifically (State v. Hatcher, 136 Mo. 641); (7) that where defendant by fraud procures his own trial upon a lesser offense and pleads guilty and is fined (State v. Cole, 48 Mo. 70); (8) that jeopardy does not attach where a trial is stopped at any stage short of a verdict, when it appears that the prosecution is "being had in a county which had no jurisdiction for lack of venue (Sec. 4940, R. S. 1909; State v. Grubb, 201 Mo. 585). By going outside of our own State this list may be largely increased, but such citations Would not illuminate on the point before us right now.

Similar to the statute under discussion here, are the statutes of a number of states authorizing the entry of a nolle prosequi in case of a variance, or even permitting a second indictment and trial where an acquittal has happened on account of a variance, and which statutes are held not repugnant to the prohibition as to jeopardy. [People v. McNealy, 17 Cal. 332; State v. Kreps, 8 Ala. 951; People v. Oreileus, 79 Cal. 178.] But, of course, the distinction drawn arises from the lack of'identity of the offenses.

It will not be lost sight of that the St. Louis Court of Criminal Correction has as well the jurisdiction to hold preliminary hearings in felony cases, as it has, to try and finally determine misdemeanors. The effect of the section under discussion is to provide an easy and expeditious method of changing from the trial of a misdemeanor case to the holding of a preliminary examination in a felony case whenever the facts are found to warrant the change. Such change entails no hardship upon the defendant which is not offset by the benefit accruing to society, since the matter of taxing the additional costs which the proceeding entails can be regulated by the courts under well settled rules for taxing costs.

We concede the great danger of encroaching upon the fundamental guaranty against being put twice in jeopardy, which would be encountered in saying broadly that in all cases either an acquittal or a conviction (State v. Hatcher, supra) must be had before a jury "before jeopardy will be said by us to attach. Such a construction of the organic law might in many cases so operate as to become unfair and oppressive, as for ■ example, permit the trial court to set aside a submission of a trial for a felony for the sole reason that the State lacked presently at hand sufficient testimony to make out a case, or for some other arbitrary reason entailing upon defendant great hardship. We are not saying that a statute which would permit a trial court to stop any criminal case short of a verdict by a jury, whether the reason for so stopping the case were fair or unfair, arbitrary or unconscionable or otherwise, would be upheld; neither are we saying that such an arbitrary act of the court wrould be upheld, though there be no such statute, but we are saying that under the Constitution of this State the statute under inquiry, which requires a misdemeanor case to be stopped as soon as it appears to the court that the accused is guilty of a felony, is wholesome and salutary, in that, the former status of the common law regarded, it prevents outrageous miscarriages of justice, and because the only reason which allows such stopping and dismissing of the misdemeanor case is writ at large in the section itself, and falls short of the condition precedent of acquittal, and one which while simplifying and expediting procedure, yet works no remediless hardship on defendant. Any other view must needs be builded upon an unsubstantial and bald technicality. This identical result has been reached in the late case of Larson v. State, 93 Neb. 242, where defendant being charged with assault and battery, was put upon his trial before a county judge in Nebraska. After all of the evidence was in, but before a judgment had been rendered, a motion was made based upon the evidence, to stop all further proceedings in the misdemeanor trial and bind defendant over to await the action of the district court upon the charge of assault with intent to inflict great bodily harm, which is a felony. This motion was sustained. Defendant saved the point and upon his conviction in the district court of the felony, to answer which he had been bailed, and which was based on the identical occurrence upon which the assault and battery prosecution was bottomed, he appealed and urged former jeopardy. The Supreme Court held that jeopardy had not attached. There is in Nebraska a statute similar in substance in all respects to that of. our own here under discussion. The Constitution of Nebraska, however, simply forbids the putting of any person “twice in jeopardy for the same offense.” [Sec. 12, art. 1, Constitution of Nebraska.] This holding of the Nebraska Supreme Court was largely bottomed upon the ground that the county court had no jurisdiction to try felony cases and so had no authority to try defendant for a felony, and that thus he had not been in jeopardy before, since the facts which go to make up jeopardy fell short, to the extent of the element of jurisdiction in the court to try the case before it. [Thompson v. State, 6 Neb. 102; State v. Morgan, 62 Ind. 35; State v. Hattabough, 66 Ind. 223.]

In the case of Stoner v. State, 7 Ind. App. 620, it was held that defendant had not been put twice in jeopardy, by reason of his being put upon his trial for an assault and battery, which trial was halted, in a sense, by the verdict of the jury that they found defendant guilty, but that a fine of twenty-five dollars, which was the utmost fine which a justice’s court had jurisdiction to assess, was inadequate as punishment. Thereupon, pursuant to a statute of Indiana, which so provided and permitted, the justice of the peace held defendant in bail to answer such felony charge as should be thereafter preferred against him in the circuit court. Upon appeal, after conviction of such felony, it was held that jeopardy had not attached for the reason that the justice’s court had no jurisdiction to try defendant for a felony. The Indiana statute, upon which the case turned, reads thus:

“Such, justice or jury, if they find the prisoner guilty of a misdemeanor, shall assess his punishment; or if, in their opinion, the punishment they are authorized to assess is not adequate to the offense, they may so find, and, in such case, the justice shall hold such prisoner to hail for his appearance before the proper court, or commit him to jail in default of such bail. ’ ’

The applicable provision of the Indiana Constitution is’ in all respects like that of Nebraska, quoted, supra. While the facts in these cases are stronger by far than those in the instant case, yet it is obvious that there yet lacks something of analogy, by reason of our decisions; since, while it was said in the case of State v. Huffman, 136 Mo. l. c. 63, that a conviction for an assault and battery would be no bar to a subsequent trial upon the identical facts for an assault with intent to kill, it was yet held in a later case in the same volume that a conviction for assault and battery was jeopardy and did bar a subsequent trial when set up by plea against a prosecution for assault with intent to kill, based upon an identical occurrence. [State v. Hatcher, 136 Mo. l. c. 643.] This compelling similarity, however, does inhere: That, in the cases of Stoner v. State, supra, and Larson v. State, supra, just as in the case at bar, the cases were taken from the court which tried the misdemeanors (which in all three cases had jurisdiction both to try and finally adjudge misdemeanors, and to hold preliminary examinations), after the jury was sworn, but before judgment in the misdemeanor cases was rendered.

The case of People v. Hunckeler, supra, is not in point. For there the defendant was placed on trial for manslaughter in the district court of San Francisco. After the taking of all evidence on both sides was concluded, the trial court, on motion of the State, without defendant’s consent, dismissed the jury and ordered defendant held so that a charge of murder could be lodged against Mm. The action of the court was based on a California statute, wMck provides:

“If it appears by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed or continued on, or admitted to bail to answer any Mdictment which may be found against him for the higher offense. If an indictment for the higher offense is found by the grand jury impaneled within a year next thereafter, he must be tried thereon, and a plea of a former acquittal, to such last found indictment, is not sustained by the fact of the discharge of the jury on the first indictment.”

The defendant Hunckeler was- afterwards tried for murder, and being convicted of manslaughter, appealed upon the g'round that he had been twice in jeopardy,- notwithstanding the statute, which he attacked as unconstitutional, claiming that it violated section 8 of article 1 of the Constitution of California, wMch provides that “no person shall be subject to be twice put in jeopardy for the same offense.” The Supreme Court of California, holding defendant’s plea for former jeopardy good, among other things, said:

“This language [of the California Constitution] is more than the equivalent of ‘no person shall be twice tried for the same offense.’ [1 Bishop, Cr. L. 1018.] A defendant is placed in apparent jeopardy when he is placed on trial before a competent court and a jury impaneled and sivorn.”

We italicize the words which make upon the facts whatever distinction exists between the instant case and the Hunckeler case. The broad distinction created by the variant wording of their constitution and ours has already been noted at length. The district court of San Francisco apparently held both trials and had jurisdiction to try and determine fully the first charge as well as the last. Neither is the case of People v. Ny Sam Chung, 94 Cal. 304, in point, except upon the question of identity of offense arising from inclusion of elements of one in the other, regardless of whether one is but a higher grade of the other or not. ' It is an authority in point upon the facts and the law in the case of State v. Hatcher, 136 Mo. 61, as is also the case of State v. Wiles, 26 Minn. 381. But that case is not this case at bar.'

More nearly in point, and upholding the view we here take in broad principle, are the cases of State v. Littlefield, 70 Me. 452; State v. George, 53 Ind. 434; State v. Hill, 122 La. 711; Com. v. Harris, 8 Gray, 470; and Com. v. Sullivan, 156 Mass. 487.

Therefore, being mindful of the rule that we should not declare a statute unconstitutional unless we find and believe it to be so beyond a reasonable doubt (State v. Baskowitz, 250 Mo. 82; State v. Thompson, 144 Mo. 314), and the matter of jeopardy being here wholly referable to this statute, which statute we are unable for the reasons given to declare invalid, under the provisions of our Constitution, we disallow the point to the defendant.

II. Defendant also contends that error was committed in refusing to permit Dr. Breibaeh to testify. Defendant tells us in his brief that he offered Dr. Breibaeh in order to show “the physical condition of the wound” inflicted by defendant upon Eosenthal, the prosecuting witness. The record does not bear out the contentions of defendant’s learned.counsel as to the object with which Dr. Breibaeh was offered. There is not in the record a word even from which the purpose of calling Dr. Breibaeh may be inferred. He was called by defendant; he said he was a physician; it was developed by the questions that he had been called by Rosenthal to treat him, for the wound inflicted upon him by defendant; objection being Blade by the State on the ground of privilege, Dr. Breibach was not allowed to further depose, and defendant saved his exceptions. This is all the record shows. We do not know for what purpose the witness was called. ' The defendant admitted the stabbing and claimed that he acted in self-defense. He was convicted of common assault only. Pretermitting the question of whether the case of Epstein v. Railroad, 250 Mo. 1, applies, as also the question -of whether, when the cutting and stabbing with a knife is admitted and the plea of self-defense is alone urged for a substantive or evidentiary' defense, and the trial results in a conviction of common assault, the matter of depth and extent of wounding and quantum of illness produced, would ever so far cease to be a collateral question as to allow reversible error to be bottomed on it, we here content us with saying, that since we do not see how defendant was hurt by the rejection of Dr. Breibach’s testimony, and since defendant does not upon the record by an offer to prove or otherwise, show us how his case was hurt, we must disallow this point. [Hickman v. Green, 123 Mo. 165; Kraxberger v. Roiter, 91 Mo. 404.]

Other matters are suggested, but having examined them, we find nothing novel urged, or any error rising to a stature meet for reversal. Let the case be affirnaed.

Walker, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    VACILIKE MAHOPAULOS, Plaintiff in Error, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.
    Division Two,
    March 24, 1914.
    1. APPEAL: Statutory Right. Appellate proceedings are purely statutory. A party to avail himself of any right to an appeal or writ of error must comply with the statutes governing the same.
    2. -: -: Filing Transcript, Etc. If an appeal has been taken and perfected in the trial court, the statutes and rules of court regulating the transfer and filing in the appellate court of the records and proceedings must be complied with or else the appellate court cannot take cognizance of them.
    3. -: Dismissal: No Transcript: Writ of Error. Where a party has been allowed and has taken an appeal from a trial court, either a transcript or certified copy of the judgment and order of appeal must be filed in the appellate court before the appeal can be dismissed. It cannot be lodged in the appellate court by a mere written memorandum or other paper not bearing the signature and seal of the clerk of the trial court. And until the appeal is lodged in the appellate court in the way prescribed by statute, and then dismissed, appellant is not entitled to a writ of error.
    Error to Jackson Circuit Court. — Hon. R. H. Middlebrook, Judge.
    Writ quashed.

      Reinhardt & Schibsby, J. ■ G. Rosenberger and Kersey G.’Reed for plaintiff in error
    (1) The time of filing a paper is the date of the delivery thereof to the proper officer, without regard to the action that the officer may take on it. Therefore, when Mr. Silver, on September 19,1910, delivered; to the clerk the paper dismissing the appeal, the effect of such dismissal is not altered by the fact that the clerk failed to make record thereof. Grubbs v. Cones, 57 Mo. 84; Collins v. Kammann, 55 Mo. App. 464; Bensley v. Haeberle, 20 Mo. App. 648. (2) After an appeal bas been taken in tbe circuit court by tbe filing of the proper affidavit and an order allowing tbe appeal to tbe appellate court, although tbe transcript bas not been filed in tbe appellate court, tbe cause- is regarded as pending in tbe appellate court. Therefore, tbe appellant was not precluded from dismissing tbe appeal herein by tbe fact that no copy of-the judgment and order allowing appeal bad been filed in this court. Reed v. Bright, 232 Mo. 415; Burgess v. Conogbue, 90 Mo. 299. Tbe allowance of an appeal divests tbe circuit court of jurisdiction and vests it in tbe appellate court. Reed v. Bright, 232 Mo. 415. This court was in vacation on September 19, 1910, at tbe time Mr. Silver filed tbe dismissal. It cannot be that an order of court was essential to dismissing tbe appeal, because if this were so, it would defeat tbe statute, which allows writs of error to be sued out at any time within one year (Sec. 2054, R. S. 1909) and would ingraft on tbe statute an unwarranted exception, namely, that tbe writ could be sued out within one year only in tbe event tbe appellate court was in session so that- an appeal could be dismissed. Tbe law, of course, makes no such exception. By filing tbe formal dismissal, Mr. Silver did everything that be could do to dismiss tbe appeal and to evidence complete abandonment thereof. This left tbe judgment in full force and effect, and therefore tbe appeal no longer stood in tbe way of tbe writ of error. State v. Reed, 206 Mo. 719; In re Breisen, 41 Atl. (Conn.) 774; Derrick v. Taylor, 171 Mass. 444. (3) It is, of course, conceded that a writ of error and an appeal cannot be prosecuted at one and tbe same time, and this fact was recognized by us at tbe time we sued out this writ of error. Harris v. Chit-wood, 210 Mo. 560. (4) But even after an appeal bas been dismissed by a party in default he may nevertheless have bis writ of error, if sued out within one year from the date of overruling of motion for new trial. Burdick v. Life Assn., 91 Mo. App. 529; Hinshaw v. Warren, 162 Mo. App. 280. And the fact that one writ of error has been sued out and dismissed does not preclude the suing out of another. State ex rel. v. Finn, 87 Mo. 310; State ex rel. v. Silverstein, 77 Mo. App. 304. (5) Where an appellant fails to prosecute his appeal by-failing to file the transcript within the time required by law, the respondent is by the statute given a plain right to have the judgment affirmed, provided he himself complies with the statute by docketing the appeal and moving for affirmance, but if, as here, before the respondent does this, the appellant dismisses his appeal, the motion to affirm comes too late. The respondent must show diligence, or his motion to affirm will be denied. ' Krouck v. Reed, 105 Mo. App. 430; Thomas v. Sullivan, 79 Mo. App. 384; Bur-dick v. Life Assn., 91 Mo. App. 529. (6) A respondent by nonaction waives the failure of appellant to file transcript in time. Gaar-Scott & Co. v. Nelson, 166 Mo. App. 51; Hinshaw v. Warren, 162 Mo. App. 280; Bombeck v. Bombeck, 18 Mo. App. 26; Kronck v. Reed, 105 Mo. App. 430; Banse v.- Tate, 62 Mo. App. 150.

      Paul E. Walker and Sebree, Conrad & Wendorffi. for defendant in error.
    The motions to affirm the judgment and quash the writ of error should be sustained. The plaintiff failed to prosecute her appeal and the writ of error •cannot supersede the undisposed of appeal. Harris v. Chitwood, 210 Mo. 560; Vigo v. Bradford, 129 Mo. App. 656; Secs. 2047 and 2408, R. S. 1909.
   WALKER, P. J.

— Plaintiff brought suit in the circuit court of Jackson county against defendant for damages for the killing of her husband, by one of defendant’s trains, on the latter’s line of railway near Liberty, Missouri, on tbe first day of May, 1908. A trial before a jury resulted in a verdict for defendant, from which plaintiff appealed. The order granting the appeal was dated September 22, 1909. She thereafter perfected her appeal in the trial court, by filing her bill of exceptions. No further steps were taken by plaintiff until September 19, 1910, when her counsel in vacation offered to file in this court what may be termed a declaration of dismissal, if its character may be so designated from the statements made in regard thereto in affidavits, the paper itself not being before us and not found in the files. The clerk declined to file this paper because there was nothing on file from which it could be determined whether an appeal had been granted. Subsequently this- paper was filed by the clerk as of June 19, 1910.

On the same day plaintiff’s counsel sued out a writ of error, and on September 26, 1910, transmitted same with an uncertified copy of the verdict of the jury and the judgment rendered thereon, with the required docket fee, to the clerk of this court, who filed the same on September 27, 1910'. The timeliness of plaintiff’s action is not in question so far as the writ of error is concerned, if the facts authorized the suing out of the writ, but we are confronted with the more serious problem as to whether the plaintiff, not having complied with section 2048, Revised Statutes 1909, which requires the filing in this court of a short or long form of transcript to perfect an appeal, can by a mere written memorandum, affidavit or other paper not bearing the signature of the clerk and seal- of the trial court showing its genuineness, dismiss an appeal which, although regularly taken and perfected in the lower court, has never been brought within the jurisdiction of this court as required by our procedure.

Appellate proceedings being purely statutory, a party to avail himself of any right thereunder must comply with the requirements of the enabling statute. [Thomas v. Elliott, 215 Mo. 598, 602; State ex rel. v. Broaddus, 216 Mo. 336, 342.] If, therefore, an appeal has been taken and perfected in the trial court, before the appellate court can take cognizance of same for any purpose the statute and rules of the court regulating the transfer and filing here of the records and proceedings in such case must be complied with.

This court in the exercise of its appellate jurisdiction can only act upon the records or properly certified proceedings before it, of subordinate tribunals, and the manner in which such records or proceedings may be submitted for consideration is clearly defined in section 2048, supra, and our Eule 28. In the case at bar, therefore, the court could only be regularly apprised of the fact that an appeal had been taken by the filing here of a properly certified transcript of the proceedings of the trial court or a copy of the judgment and the order granting the appeal. This course is a prerequisite to the dismissal of the appeal, and such dismissal must be entered before a writ of error can properly be sued out.

We take judicial notice of our own records (Chicago Herald Co. v. Bryan, 195 Mo. 590) and up to this time there is nothing either in the files or record entries in regard to this case to show that plaintiff has dismissed her appeal.

While much inclined to review any case upon its merits, where it appears that there has been a substantial compliance with the requirements of orderly procedure, the case at bar does not present these features; on the contrary, plaintiff has failed to comply with the plain provisions of -the statute, and the rule of the court, which would have enabled her to dismiss the appeal and would have authorized a review of this case under the writ of error.

We do not determine, because not warranted in so doing by the facts, what our ruling would have been, if plaintiff had perfected her appeal here and had dismissed same after the suing out of the writ of error and before the defendant filed its motions to affirm the judgment and quash the writ. It will suffice to say that there is nothing before us for review.

From all of the foregoing it follows that the writ of error must be quashed, and it is so ordered.

Brown and Baris, JJ., concur.


author: WOODSON, P. J.

text:
    CITY OF ST. LOUIS v. LOUISA BARTHEL et al.; J. E. BRAWNER et al., Appellants.
    Division One,
    April 2, 1914.
    1. CONDEMNATION: Allegation of Ownership or Interest in Defendants: Estoppel. An allegation by the city in its petition to condemn land for a street that defendants are the owners of the ground sought to be taken or claim some interest therein, is not an admission that they are the owners, and does not estop the city from challenging defendants’ title to the ground and claim for damages.
    2. -: Street: Partition of Lands: Reservation. A commissioners’ report in partition, reciting that they subdivided the tract “with a view to the future opening and widening of streets and alleys, and reserved sufficient ground for the purpose of being later appropriated to such streets and alleys, all of which will more fully appear by a plat hereto attached,” which plat shows a street sixty feet wide with a notation of the western thirty feet thereof “reserved,” the confirmation of said report by the circuit court, its record in the recorder’s office, an acceptance by the coparceners of the lots abutting on said street of the lots allotted to them, an acceptance by user by the city of the whole sixty feet, and the acquiescence therein both by the city and the coparceners and their grantees for many years, amounted in law to a dedication of the whole sixty feet to the city for street purposes, and bars the grantees from said coparceners to recover damages for the thirty feet "reserved,” in a condemnation proceeding brought by the city to have said thirty feet condemned for such purpose.
    Appeal from St. Louis City Circuit Court. — Eon. James E. Withrow, Judge.
    Affirmed.

      E. P. Johnson for appellants.
    (1) Under the provisions of Sec. 2, art. 6, of the charter of the city of St. Louis, requiring the owners of the land to be taken to be named and made defendants in the petition for opening a street, and that it shall not be necessary to make any party a defendant unless they are in actual possession of the premises sought to be condemned, notwithstanding the allegation in it is that the defendants own “or claim some interest therein,” said petition admits the title of appellants to the premises, and the question of dedication is not within the issues herein. Olean v. Styner, 135 N. Y. 343; San Jose v. Fresychlag, 56 Cal. 9; Walbridge v. Russell County, 74 Kan. 343. Besides, the proceeding to condemn these premises estops respondent from claiming a dedication of them. Princeton v. Templeton, 71 111. 68. (2) Under said provision of said charter and under the general law it is sufficient that the record owner of the premises be made a party •defendant. Yance v. Corrigan, 78 Mo. 94; Sehnitger v. Rankin,- 192 Mo. 35. The commissioners in this •cause went outside of the issues in it in finding that the premises had been dedicated, exceeded their jurisdiction and undertook to decide a question triable only in the court. Buddeke v. Ziegenhein, 122 Mo. 239; Michael v. City, 112 Mo. 610; In re Commissioners, 120 N. Y. Supp. 930; San Jose v. Freyschlag, 56 Cal. 9. (4) Said report is a part of the record (St. Louis v. Brinckworth, 204 Mo. 280), but if it were not it is made such by the bill of exceptions, and the error of the commissioners in deciding that the premises had been dedicated is material error appearing on the face of the record, for which the judgment should be reversed. Sec. 2083, R. S. 1909; Guinan v. Donnell, 201 Mo. 200; 'Thresher Co. v. Speak, 167 Mo. App. 470; Lilly v. Menke, 126 Mo. 190; Land Co. v. Bretz, 125 Mo. 418; State ex rel. v. Scott, 104 Mo. 26. (5) The plat of Ihe commissioners in partition of the Elbreder property is not in conformity with Art. 3, chap. 134, p. 1327, vol. 2, "Wagner’s Statutes 1872 (Secs. 10290-10297, R. S. 1909), and it could not have been a statutory dedication. In order to constitute a statutory dedication the statute must be strictly and literally complied with. Hertz v. St. Louis, 110 Mo. 624; Milling Oq. v. Riley, 133 Mo. 584; Becker v. St. Charles, 37 Mo. 37; Buschman v. St. Louis, 121 Mo. 535; McShane v. Moberly, 79 Mo. 43; Hannibal v. Draper, 36 Mo. 336. (6) The statute in regard to partition, Sec. 21, chap. 104, p. 965, vol. 2, Wagner’s Statutes 1872 (Sec. 2583, R. S. 1909), leaves it entirely optional with the commissioners whether they will “lay out streets, lanes and alleys,” and Sec. 30, p. 970, of the former and Sec. 2589 of the latter merely requires them, when they have done so, to cause a copy of their report to be recorded in the office of the recorder of each county in which any of the land lies. Wainwright v. Rowlands, 25 Mo. 57. (7) To make a dedication effective, it must "be absolute. If it is a reservation of the land, or a •dedication on condition, it is not absolute and therefore not a dedication. Collier Estate v. Paving Co., 180 Mo. 362; Bridge Co. v. Bachman, 66 N. Y. 261; St. Louis v. Meier, 77 Mo. 13; Creamer v. McCune, 7 Mo. App. 91; Kemper v. Collins, 97 Mo. 644; Clark v. Brookfield, 81 Mo. 503. (8) An acceptance of an offered dedication, if there had been such, was just as necessary to complete the dedication as the offer, and the evidence is conclusive in this case that if there was an offer to dedicate it was refused. Paving Co. v. McManus, 144 Mo. App. 593; Edwardsville v. Barnsbaek, 66 111. App. 381; Benton v. St. Louis, 217 Mo. 687; State ex rel. v. Mueneh, 225 Mo. 210; McG-rath v. Nevada, 188 Mo. 107. And payment of taxes goes to show no dedication, Bushman v. City, 121 Mo. 527. The approval of the partition by the city engineer was not snch acceptance. Donnen v. Kansas City, 156 Mo. 60. Further, nothing was ever expended on said premises by respondents so as to divest appellants of their title or show an acceptance of any offered dedication. Proviso to Secs. 9472 and 9694, R. S. 1899; State v. Macy, 72 Mo. App. 427; Sikes v. Railroad, 127 Mo. App. 326. (9) Only the owner of the fee of land can make a dedication of it to public use. Hannibal v. Draper, 36 Mo. 336; Paving Co. v. McManus, 144 Mo. App. 609; Edwardsville v. Barnsbach, 66 111. App. 387. The commissioners in partition were not owners of the land and therefore could not make a dedication of the premises except by complying with the terms of the partition statute in that respect. (10) The latter authorities dispose of the claim of respondent that the deeds of the Elbreder heirs calling for Compton avenue as a boundary were a dedication, as they had all lost their titles by tax sales previous to the execution of the deeds respectively, except Henry Gr. Elbreder, by executor to Louis Kohlley, and the tax lien on the land antedated the latter deed. Besides, a dedication of this character only arises by virtue of the covenant in the deed. Moses v. Dock Co., 84 Mo. 242. And an administrator does not make such covenants. The deed of Maria Lohman to Jacob Engasser has no such call in it and she is not shown to have had any title to the land described in the deed.

      William E. Baird and Elmer E. Pearcy for respondent.
    (1) The mere fact that the appellants in this cause were made parties defendant does not admit that they have title to any portion of Compton avenue to be opened by Ordinance No. 23567. The petition alleges that the ‘ ‘ defendants named in the caption to this petition are the owners, respectively, of the several parts of the premises hereinbefore described, or claim some interest therein.” That the appellants claim some interest is shown by the fact that they contested the case in the lower court and are now appealing. In condemnation cases where a street is being opened' the very purpose of the proceeding is to acquire the title to the land for street purposes and to foreclose as far as possible all outstanding claims that are asserted against the same. This is done as a matter of precaution so that when the street is paved or otherwise improved there can be no possible defense to the tax bills issued by the city to pay contractors for the doing of the work. The petition does not admit the title of defendants, but asserts that they claim an interest in the same. This has no bearing at all upon the question of dedication. Moses v. Dock Co., 84 Mo. 246. (2) The commissioners did not go. outside of the issues in finding that the premises had been dedicated and they did not exceed their jurisdiction when they so found in their report. They were appointed for the purpose of trying and determining all questions of values and if a parcel of land included within the boundaries as defined by Ordinance 23567 was already a public highway, it was necessary for them to so find in order that their report would show that they had not omitted or overlooked this part of the highway to be opened. The appellants filed their exceptions to this section of the commissioners’ report and had a trial upon the issues set out in their exceptions and the circuit court confirmed the findings of the commissioners. (3) There was a complete statutory dedication of the parcel of land claimed by these appellants. This dedication results from the partition suit, the filing for record in the recorder’s office of the commissioners’ report in partition, and the plat attached thereto, which plat was duly certified to by the city engineer, and shows Compton avenue reserved as a public street. Wagner’s Statutes 1872, chap. 134, secs. 1, 2, 3, 4, 5, 6, 7, 8 and 9, pp. 1327-8; Wagner’s Statutes 1872, chap. 104, secs. 21 and 30, p. 9701; Act Revising Charter of St. 'Louis enacted adjourned session Missouri Legislature, 1870, approved March 4, 1870, appearing in Laws 1869-70, sec. 1, art. 12, p. 486. (4) If the court should find that the facts in this case do not warrant a valid statutory dedication, however, they do constitute a valid common law dedication. Heitz v. St. Louis, 110' Mo. 624; Pry v. Mankedick, 172 Pa. St. 535; Moses v. Dock Co., 84 Mo. 242; Elliott on Roads & Streets (3 Ed.), secs. 128-129; Dillon on Mun. Cor. (3 Ed.), sec. 628; lb. (5 Ed.), sec. 1083; Hannibal v. Draper, 15 Mo. 634; Thomas v. Hunt, 134 Mo. 392; Busehman v. City, 121 Mo. 523; Ferrenbach v. Turner, 86 Mo. 419; Belcher v. St. Louis, 82 Mo. 121; Reid v. Board of Education, 73 Mo. 295. The word “reserved” used in the plat does not mean that title is “reserved” in the owners. The proprietors in this case have done all that they could to cause a dedication of the strips of land marked reserved on the plat. The word “reserved” relates to the future action of the municipal authorities, and not to the proprietors. The statute at that time required an approval of the city engineer of all plats showing that the streets designated conformed to the city plan, and this is what is meant by the word “reserved.” These strips were reserved for public highways to be used by the respective owner's of the several lots as such, and upon the city designating its willingness to accept the same, it becomes liable for the safety of such streets. Streets indicated on plats made in partition proceedings are subject to tbe foregoing doctrines of dedication. Indianapolis v. Kingsbury, 101 Ind. 200; Lake View v. Le Bahn, 120 111. 92; Wisby v. Bonte, 19 Ohio St. 238. (5) It is not necessary for the city to accept an offered dedication in order to make it valid. It may be necessary in order to impose tbe duty of keeping tbe street in proper condition to show tbat tbe public authorities have indicated tbeir acceptance of tbe same and tbeir willingness to assume control and authority over it. If tbe interests of third persons have arisen by tbe sale or transfer of lots tbe title has passed out of tbe original owners and has vested in tbe public. Grogan v. Howard, 4 Fed. 164; Thurston v. St. Joseph, 51 Mo. 512; Heitz v. St. Louis, 110 Mo. 624; McGinnis v. St. Louis, 157 Mo. 197. (6) Tbe assessor bad no authority under tbe laws of tbe State to assess this property for taxes and tbe assessment is void for tbe reason tbat it was against a parcel of land subject' to a public use. City v. Gorman, 29 Mo. 593; Hannibal v. Draper, 36 Mo. 332; Bushman v. St. Louis, 121 Mo. 537; Moses v. Dock Co., 84 Mo. 242; Wright v. Doniphan, 169 Mo. 613.
   WOODSON, P. J.

— This suit was duly instituted in tbe circuit court of tbe city of St. Louis to condemn certain lands particularly described in tbe petition for street purposes.

A trial was bad which resulted in a judgment for tbe city, and tbe defendants, J. E. Brawner, W. P. MeCrory and Anna M. Hilton, appealed tbe cause to this court.

Tbe common source of title, as I gather from the record, was Henry Elbreder, who owned tbe land and died intestate in tbe year 1860.

Tbe street in question was Compton avenue; and tbe strip of ground sought to be condemned was some seven Mocks in length, and among other tracts was one thirty feet wide and some six hundred feet in length, claimed by the appealing defendants as belonging to them.

The city claims this particular strip of ground under a partition decree dedicating it for street purposes in the year 1874; while appellants claim through mesne conveyances from Elbreder.

The real contention of the parties to this appeal is fairly well stated by counsel for appellants in the following language:

“On November 14, 1908, respondent filed in the court below a petition for the condemnation as a public highway of respondent, of the west half of Compton avenue, as shown on the Elbreder partition plat and marked reserved thereon, and marked Anna M. Hilton, as owner, pursuant to ordinance on the plat attached to the report of the commissioners in the cause, which piece of land is 30 by 600 feet., The proceedings were regular and there is no conflict in the testimony or evidence nor any objection to any of the documentary evidence that challenges the sufficiency of any of it for the purpose for which it was intended, leaving only the proper construction of the pleadings, report of the commissioners and the evidence to be passed on by this court, to determine whether there had been a dedication or an acceptance by respondent of the same, if made, of said land, as a public highway, either by dedication shown by said commissioners’ plat, or by calls for Compton avenue as a bounding street in conveyances made by the heirs.”

As indicated by the foregoing statement of counsel, there is no dispute as to the facts; and since they are fully set out by counsel for respondent I will adopt their statement as the statement of the case, which is as follows:

“Commissioners [in this suit] were duly appointed after proper service upon all parties who owned or claimed any interest in the property, and their report, together with plats attached thereto, which were furnished by the street commissioner of the city of St. Louis, under authority of ordinance, was filed in the circuit court on the 13th day of October, 1909. The plat attached to the report of the commissioners in this condemnation suit shows the following situation:
“That Compton avenue from Gravois avenue southwardly to Osage street was a public highway in the city of St. Louis of irregular width. At some places it was thirty feet wide; at others sixty feet wide. The purpose of this ordinance, as shown by the plat, was to make a street, with uniformly straight east-and-west lines, from Gravois avenue to Osage street, sixty feet wide. It shows that the center line of the proposed street was a straight line extending from Gravois avenue to Osage street, and'that to make it sixty feet wide through this entire length in some cases required the condemnation of thirty feet westwardly from this center line and in some cases thirty feet eastwardly from the said line; at other places it is already sixty feet wide. Compton avenue is a north-and-south street. The section of Compton avenue included within Ordinance 23567 from Gravois avenue to Osage street is crossed by the following east-and-west streets southwardly from Gravois avenue in the following order: Utah street, Cherokee street, Potomac street, Miami street, Winnebago street, Chippewa street, Keokuk street and Osage street. As the exceptions filed on the part of the defendant Hilton relate only to property which she claims, we shall describe the blocks bounded on the north by Winnebago, and on the south by Chippewa street, a little more minutely. The plat appearing in the appellants’ abstract shows City Block 1619 and one-half of City Block 1622. The strip of land shown on this plat which Anna M. Hilton claims to own in fee, extends from the south line of Winnebago street to the north line of Chippewa street, a distance of six hundred feet, and has a width of thirty feet. This strip of land thirty feet wide is the western half of Compton avenue as established by Ordinance 23567. The eastern half of this street is shown on this plat with the following notation (which is very indistinct):
“ ‘Heirs of William B. Betts, deceased, viz.: Elizabeth L., William, Carrie, Leonard Betts, and Julia Parsons, wife of Charles T.’
“This strip of land has the same dimensions as the strip in which appellant Hilton claims an interest. It is the eastern half of the street and extends from Winnebago southwardly to Chippewa street. The plat shows City Block 1619 as Elbreder’s Estate Subdivision; the plat shows City Block 1622 as Betts’ Subdivision. Virginia avenue bounds City Block 1619 on the west and Michigan avenue bounds City Block 1622 on the east. Both blocks are subdivided in the same manner. Each block has a frontage of 270 feet on the south line of Winnebago street and 270 feet on the north line of Chippewa street. Block 1622 has a frontage of 600 feet on the west line of Michigan avenue, and Block 1619 has a frontage of 600 feet on Virginia avenue. There are twelve lots in each block fronting on Compton avenue between the alley south of Winnebago street and the alley north of Chippewa street. The lots in City Block 1619 extend from the west line of the property in which the appellant Hilton claims an interest westwardly for a distince of 125 feet to an alley. The lots in City Block 1622 front upon the east line of the strip of land, in which the heirs of William Betts claim an interest, and extend eástwardly for a distance of 125 feet to an alley. These twenty-four lots, twelve in City Block 1619 and twelve in City Block 1622, have no outlet except over the two strips of land in which Hilton and Betts claim an interest. In City Block 1619 the twelve lots fronting on this strip of land claimed by Hilton are owned by eleven separate and distinct proprietors, and if the •contention of the appellant be .true, that the land shown on the plat in the name of Anna M. Hilton is not a street, and that the alley in the rear shown in the name of the heirs of Elbreder is not an alley, the present owners of this property have no possible method of getting to their property except over the property of others.
“In the year 1849 the east half of the southwest quarter of Block 69 of the Commons of the City of St. Louis was acquired by Henry Elbreder in a partition by a partition deed. This eastern half of the southwest quarter of Block 69 comprises what is shown by the plat in the appellants’ abstract, as City Block 1619 [which will be presently set out and marked ‘Exhibit A’].
“Henry Elbreder died in 1860 and at the time of his death he was still the owner of ’this property, now known as City Block 1619.
“On May 11, 1874, a partition suit was instituted in the circuit court of the city of St..Louis for the partition of this property among the heirs of Henry Elbreder. Commissioners were duly appointed and returned into court their report in the proper form partitioning all of this property on the 30th day of November, 1874. The plat showing the method of partition was attached to said report [which will be set out and marked ‘ Exhibit B ’].
“The commissioners’ report in partition recites that they ‘proceeded to view and examine the premises and they thereupon laid them off in blocks and lots, in compliance with the manner of subdividing lots and blocks within the limits of the city of St. Louis, and with a view to the future opening and widening of streets and alleys, and reserved sufficient ground for the purpose of later being appropriated to such streets and alleys* all of which will more fully appear hereto attached,’ etc. The report recites the different lots assigned to the different heirs, which is in accordance with the designations made upon appellants’ ‘Exhibit B.’ This plat designates Virginia avenue, Which bounds the property on the west as sixty feet wide. It marks the eastern thirty feet of this sixty-foot strip street, however, as ‘reserved.’ This thirty-foot strip was a portion of the property owned by Henry Elbreder. It shows Compton avenue as sixty feet wide with the notation on the western thirty feet ‘reserved.’ This western thirty feet was part of the property owned by Henry Elbreder included in the partition suit. The plat shows Winnebago street sixty feet wide with the notation on the south thirty feet ‘reserved.’ It shows an east-and-west alley parallel with Chippewa street and northwardly therefrom 125 feet. This alley is shown as twenty feet wide, and extends entirely through this block from Virginia avenue to Compton avenue. It shows an east-and-west alley twenty feet wide extending from Compton avenue to Virginia avenue, said alley being parallel with Winnebago street and distant southwardly therefrom 125 feet. It shows a north-and-south alley extending from the east-and-west alley on the north to the east- and-west alley on south through this city block. This north-and-south alley is shown on the plat as twenty feet wide. The plat also shows that Compton avenue extends southwardly from Chippewa street and northwardly from Winnebago street in each case with the center line coincident with the center line of Compton avenue, marked on the plat as sixty feet wide, extending in front of the Elbreder’s property, as shown by Exhibit B.
“This commissioners’ report was confirmed by final judgment in the partition suit entered on the 4th day of January, 1875. The proceeding in partition, including the report of the commissioners and the plat attached thereto, was filed for record in the recorder’s office on the 24th day of September, 1875. Before fifing the same the plat was taken to the city engineer of the city of St. Louis and he certified that the location of the streets and alleys represented thereon was in conformity with the official city plan on file in his office. So that on the 24th day of September, 1875, after having obtained the approval of the city engineer as to the location of streets and alleys designated on the plat, the decree and the report and plat of the commissioners in the partition case were placed on record in the recorder’s office of the city of St. Louis.
“The endorsement of the city engineer is as follows :
“ ‘City Engineer’s Office,
“ ‘St. Louis, September 23, 1875.
“ ‘I hereby certify that the location of streets and alleys as represented on the above map is in conformity with the official city plan on file in this office.
“ ‘Walter Katte, City Engineer.’ .
“The commissioners in their report, partitioning the real estate among the heirs, used this language:
“ ‘And thereupon they made partition of said lands in manner following, that is to say:
“ 'To Catherine Elbreder, the plaintiff, they' set off, allotted and assigned the following: Lots numbered 1, 2 and 3, having a front on Chippewa street of 85 feet in the aggregate, by a depth northwardly along Compton avenue of 125 feet to an alley 20 feet wide . . . bounded north by an alley, east by Compton avenue,’ etc.
“ ‘To Henry Elbreder . . . lots numbered 33, 34, 35 and 36, having a front of 105 feet on Compton avenue by a depth westwardly of 125 feet to an alley 20 feet wide, and bounded north by an alley running east and west, east by Compton avenue . . . west by an alley running north and south.
“ ‘To Theresa, wife of Ernst Reisse . . . lots numbered 41, 42, 43 and 44, having a front, of 105 feet on Compton avenue by a depth westwardly of 125 feet to -an alley 20 feet wide, and bounded . . . east by Compton avenue, south by an alley running east and west, west by an alley running north and south;
“ ‘To G-eorge Elbreder . . . lots numbered 37, 38, 39 and 40, having a front of 100 feet in the aggregate on Compton avenue by a depth westwardly of 125 feet to an alley 20 feet wide, and bounded north by lot number 36, east by Compton avenue, south by lot 14 and west by an alley.
“ ‘To Dorothea Nieman ... lot 32 having a front of 28 feet on Winnebago street by a depth southwardly and along Compton avenue of 125 feet to an alley 20 feet wide, and bounded north by Winnebago street, east by Compton avenue, south by an alley. ’ .
“The commissioners in partition throughout the entire length of their report describe the property al-. lotted to each heir as fronting upon a street and extending to an alley. The plat of the commissioners in partition attached to their report shows the same situation. The plat does not show that these lots extend to the center of Compton avenue, sixty feet wide; no allotment is made to any of the heirs extending beyond the boundaries of the streets which are shown on the plat as sixty feet wide.
“The deeds introduced in evidence by respondent show that all of the heirs who became the owners in the fee of the several lots awarded to them in the partition suit, transferred said lots to third parties.
“On the 11th day of June, 1877, .Anton Elbreder, the administrator of the estate of Henry G-. Elbreder, deceased, under an order of sale by the probate court, sold and conveyed to Louis Kohlby Lots 33, 34, 35 and 36, in City Block 1619, describing the property as having ‘a front of 105 feet on Compton avenue, by a depth westwardlv of 125 feet to an alley . . . bounded north’ by an alley running east and west; east by Compton avenue.” The deed also recites: “All of the aforesaid lots are situated in Elbreder ’s Subdivision. ’ ’
“As to the power of the administrator to sell said real estate the deed recites: ‘ That, whereas, the probate court of the county of St. Louis, State of Missouri, at its March term, 1877, made an order of sale directing the administrator of said estate of Henry B. Elbreder, decéased, to sell certain real estate in said order of sale mentioned, that said administrator had caused the real estate directed to be sold to be appraised by three disinterested householders of St. Louis county, as the law directs, and also caused a notice of the time, terms and place of said sale to be published for four weeks prior thereto in the St. Louis Times, a newspaper printed in the English language and published in said county of St. Louis, Missouri.’ This deed was recorded in the recorder’s office on the 14th day of June, 1877, in book 574, p. 303.
“On the 12th day of January, 1878, Henry Reisse and wife, by their trustee, John E. "Wurtzebach, trustee under deed of trust, executed by Ernst Reisse and Theresa, his wife, dated November 10, 1874, sold and conveyed to Maria Lohrmann ‘the undivided six twenty-fifths interest in, to and out of the east half of the southwest quarter of Block 69 of the Commons of the city of St. Louis, in the State of Missouri.’ This deed, executed by the trustee, recites that it is executed in pursuance of a trust imposed by a certain deed of trust, dated November 10, 1874.
“Maria Lohrmann, the grantee in the deed last above mentioned, conveyed to Jacob Engasser, by deed dated September 13, 1883, Lots 41, 42, 43 and 44, in City Block 1619, and in said deed describes said lots as ‘having an aggregate front of 105° feet upon the west side of proposed Compton avenue by a depth westwardly of 125 feet, and being bounded west and south by an alley, north by Sutmoeller, and east by proposed Compton avenue.’
“On the 21st day of February, 1883, George Elbreder and wife sold and conveyed to John D. Sutmoeller Lots No. 37 and 38 in City Block 1619, and described said lots as ‘having an aggregate front of fifty feet on the west line of Compton avenue, by a depth westwardly of 120 feet to an alley, and being bounded east by Compton avenue, west by an alley, south by Elbreder and north by Kholby.’
“By a deed of trust dated April 6, 1883, George Elbreder and wife sold and conveyed to John D. Sutmoeller Lots 39 and 40 in City Block 1619, and described said lots as ‘having a front of fifty feet on'the west line of Compton avenue, by a depth of 125 feet to an alley.’
“On the 17th day of October, 1885, Dorothy Sanders, formerly Dorothy Nieman, then the wife of William L. Sanders, and William L., her husband, sold and conveyed to Margaretta Nieman, Lot No. 32 in City Block 1619, which had been allotted to Dorothy Nieman by the commissioners in partition, and in said deed described said lot as having ‘a front of 28 feet on the south line of Winnebago street by a depth southwardly and along Compton avenue of 125 feet to an alley 20 feet wide, and bounded north by Winnebago street, east by Compton avenue, south by the alley aforesaid,’ etc.
“On the 17th day of September, 1887, George Elbreder, executor of the estate of Catherine Elbreder, deceased, by order of probate court of the city of St. Louis entered at the June term, 1887, sold and conveyed to William Sanders all the right, title and interest of Catherine Elbreder, deceased, in and to Lots 1, 2 and 3 in City Block 1619, and in said deed described the lots as having an aggregate front of 85 feet on the north line of Chippewa street and 125 feet on Compton avenue.
“It will be seen from.the extracts that, in all these deeds executed by the owners who acquired title in the partition suit, the lots conveyed were designated as fronting upon streets and extending to alleys. All of these lots in City Block 1619 have, since the date of said deeds, been transferred by mesne conveyances to the parties now owning them, as shown by the plat attached to the commissioners’ report in this condemnation suit.
“The appellants have introduced in evidence certain condemnation proceedings bearing upon the question of res adjudicada. The first proceeding is the case of the City of St. Louis v. J. Oliver. The Oliver suit was a suit in condemnation for the opening of Winnebago street from Nebraska avenue to Louisiana avenue. This section of Winnebago street, to be opened under this proceeding, extended several blocks east and west. Final judgment in this cause was entered on February 9, 1895. The appellants’ record in this case does not show what the issues were in the Oliver case; neither are the pleadings set out, nor any of the evidence or the judgment of the court. The appellants’ record, so far as the Oliver case is concerned, shows only a suit in condemnation; that a commissioners ’ report was filed in the cause, and allowance was. made of $480 in favor of one J. Oliver for the taking* of a parcel of land 30 by 330 feet along the north side of the Elbreder subdivision for use of Winnebago, street as a public highway, and that this report was confirmed by the judgment of the circuit court, which established said Winnebago street as a public highway on the condition of the payment or the tender of damages assessed by the commissioners. The record does not show that an appropriation ordinance was. ever passed or that the city ever took advantage of this judgment by paying the damages. It does show,, however, that the parcel which the appellants are-claiming was taken for Winnebago street and upon the taking of which they base the question of res adjudicatei, was a separate and distinct parcel of land from the parcel involved in this appeal, which is 30-by 600 feet.
“The next proceeding is the case of the City of St. Louis v. Rankin. This was a proceeding to open Compton avenue. Final judgment in the Rankin ease was entered on the 28th day of July, 1897. Appellants’ abstract shows that after the judgment in the-Rankin case no appropriation ordinance was ever passed to take advantage of the same and that, therefore, the judgment of the court confirming the commissioners’ report was never made a finality by the appropriation by the city of the money necessary to pay the damages.
“The next proceeding is the case of the City of St. Louis v. Elizabeth Bocka, for the opening of Virginia avenue. The appellants’ record in this case-shows that after the commissioners’ report was filed on the 20th day of April, 1897, the cause was dismissed on the 5th day of April, 1898; that final judgment was-not entered in the Bocha case, and that the proceeding was abandoned and dismissed at the motion of the-plaintiff.
“The next case is the case of the City v. Bocka, filed on the 5th day of June, 1904, for the opening of Virginia avenue. The record of this proceeding shows-that the commissioners’ report was filed on the 2d day of October, 1905; that the commissioners found in this-case that the damage for the strip of land tahen for' Virginia avenue, on the west side of the Elbreder subdivision, was one dollar, but the proceeding was dismissed on motion of defendants in this cause. This-was done undoubtedly on account of the fact that the-charter provides that no suit shall be brought for ten years for the condemnation of the same property after a commissioners’ report has been filed in the case,, and the record shows that this second Bocha suit was-filed six years after the first suit had been disposed, of.
“The next proceeding is the case of the City v. Bocka for the opening of Virginia avenue. The petition in this case was filed on November 16, 1908. The-commissioners assessed the damages to the property in which Anna M. Hilton claimed an interest at the-time at the sum of $2728. The record shows that final judgment was entered in this cause confirming the report of the commissioners, but that this judgment was-entered after the hearing of the appellants’ exceptions-in this cause, and it is, therefore, not a part of this-record. Ve might state, however, since this has been, incorporated in the record, that in that case an assessment against the city of one dollar was made by the commisioners. All the rest of the damages were assessed against private property. The city filed exceptions to the commissioners’ report on the ground that the allowance of $2728 to Hilton was improper, as the land was already a public highway, and had a trial on these exceptions. At the trial of these exceptions the appellants in this cause took the position that the city had no right to except on account of the fact that only one dollar had been assessed against the city and tendered the one dollar so assessed to the city, and the circuit court took the view that the city had no right to except and dismissed its exceptions. This case not only shows that the city of St. Louis did not acquiesce in the finding of the commissioners, but that it excepted and attempted to have the commissioners’ report set aside, but owing to the legal proposition raised by these appellants the court found that the city was not injured by the report because only one dollar had been assessed against the public generally, and that the city had no right to except.”

I. There are hut two questions of law presented, by this appeal, namely: first, Is the city estopped by the pleading from questioning the title of appellants, to the property in question; and, second, did the partition decree mentioned in the evidence amount to a. dedication of said strip of ground to the city for street, purposes ?

We will dispose of these questions in the order-stated.

Attending the first: The petition in this case in. substance stated that the defendants named in the caption of the petition were the owners, respectively, of' the several parts of the premises therein described,, or that they claimed some interest therein.

Counsel for appellants, with more plausibility than soundness of logic, contends that the city by the-above charge solemnly admitted by record that the appealing defendants were owners of the strip of ground in controversy, and that it should not now be-heard to contradict the allegations of the-petition.

The very purpose of condemnation proceedings is to ascertain and acquire title to the land sought for street purposes, and to foreclose all outstanding claims and interests that are, or may be, asserted thereto by others.

If that was not true, then the city in attempting to condemn a strip of ground for street purposes,, might through mistake or inadvertence, charge in the petition, that John Jones owned the ground or claimed some interest therein, and would thereby be compelled to pay him for the same when perhaps the evidence-might conclusively show that he had no interest in it whatever.

The suit is one of inquiry as to who the owners of the land are, as well as to condemn it for public purposes, which could not be done without all those who* -claimed title or interest therein are made parties to ihe suit.

This is done as a matter of precaution so that when.a street is opened and improved it will become .a public highway for various kinds of traffic, the means of ingress and egress to and from the adjacent property, and make certain the right of the city to improve the same and guarantee to the contrators the payment of the tax bills issued to them for the improvements made.

This litigation conclusively shows that the appealing defendants are claiming title to this ground, and the wisdom of the city in making them parties defend.ants.

These views are fully supported by the case of Moses v. St. Louis Sectional Dock Co., 84 Mo. 242, l. c. 246-247.

We are therefore of the opinion that the city was not estopped by the petition from challenging appellants ’ title to the land.

II. The second proposition must also be decided against the appellants,, for the reason that the report -of the commissioners made in the partition' suit mentioned, accompanied by the plats filed, show conclusively that the west thirty feet of Compton avenue, the land in controversy, was laid out and reserved, or -dedicated as a public street of the city, whenever it saw proper to accept the same, either by user or formal acceptance.

The parties to that suit received, or at least they thought they received, full and fair compensation for the strip of land in question, by the partition of the estate, by the circuit court of that county; otherwise, I naturally presume that the interested parties would have appealed the case to this court; but not having done so, they and their privies in blood and contract, are firmly bound thereby.

Moreover, the city and the various parties who have for all of these years considered and acted upon the belief that Compton avenue was a public- thoroughfare, and the latter having purchased property and improved the same upon the understanding and belief that it was a public street, should not be prejudiced by the failure of the interested parties to use technical words in the dedication of the street. The words used clearly indicate that the strip of ground in question was intended as a street, and since all parties so considered it to be such, it would be extremely unjust at this late date to declare to the contrary.

I am firmly impressed with the idea that the appellants are trying to make the city pay them for this strip of land, which they never owned,’ upon the flimsy pretense that the commissioners who partitioned the land used the words “reserved for street purposes” instead of stating that the same was set aside and dedicated therefor.

There is no justice or equity in such a contention.

Viewing the case as we do, we are of the opinion that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur.