author: LAMM, J.

text:
    JOHN W. BOWLES, Iowa Guardian of MAGGIE V. WILSON, an Insane Person, Appellant, v. HARRY TROLL, Public Administrator and Missouri Guardian of Said MAGGIE V. WILSON.
    Division One,
    December 2, 1914.
    1. APPELLATE JURISDICTION: Errors Corrected Sua Sponte: Retransfer After Motion Overruled. The Supreme Court is a court of errors, and the power to correct its own errors is self-evidently an integral part and parcel of its powers to correct the errors of other courts, and the duty to correct them in the same case at the first opportunity is always present where a ruling is sharply wrong and unsettles correct practice of the law. And especially is this true of so vital a question as jurisdiction — a question always obtruding itself sua sponte in any case in any court. So that where a case has been transferred to the Supreme Court by the Court of Appeals, on the ground that the amount in dispute exceeds $7500, and a motion to retransfer on the ground of lack of jurisdiction has been overruled, although the court could undoubtedly take the question as foreclose^ once for all, yet if upon further examination it appears that the motion was improvidently overruled, the case will he retransferred.
    2. -: Contest Between Guardians: Amount in Dispute. The Supreme Court does not have appellate jurisdiction of an appeal from a judgment of a court of equity decreeing that an Iowa guardian of an insane person whose domicile is in that State is not entitled to have the administration of the Missouri guardian closed and all the assets turned over to him, where the value of her estate in this State amounts to only $10,000. Neither guardian owns the fund in his own right; both are trustees, and she is the beneficial owner; the value of the right to the custody of the fund, in either, depends upon the perquisites, emoluments and fees of his trusteeship falling to him in administering the estate, and the value of those things is “the amount in dispute” between them, and that value cannot by any legal estimate amount to $7500, where the assets are worth only $10,000.
    •Appeal from St. Louis City Circuit Court. — Hon. Jmnes E. Withrow, Judge.
    Transferred to St. Louis Court of Appeals.

      Warren D. Isenberg and A. V. Proudfoot for appellant.

      Marshall <& Henderson for respondent.
   LAMM, J.

Plaintiff sued in equity in the St. Louis Circuit Court. The object and general nature of his bill was to procure a decree in his favor, as Iowa guardian, requiring Troll, the Missouri guardian, to make a final settlement of his, accounts, and pay over the balance in his hands, that is, transfer the estate, and for general relief — the bill counting on the theory that the ward resided in Iowa; was adjudged insane and confined in an asylum there; that plaintiff is the primary or domiciliary guardian, and defendant the ancillary guardian; that the purposes of the Missouri guardianship have been fully subserved and to continue it would subject the estate of the ward to the wasting burden of double costs and expense.

The case was tried in a notably unconventional way, on an agreed statement of facts, in substance as follows:

Mrs. Wilson is an insane person domiciled for twenty years in Iowa, adjudged insane by a court of competent jurisdiction in Warren county in that State in 1897, and since then confined in an Iowa hospital, the Clarinda Insane Asylum; that in 1897 Bowles, plaintiff, was duly appointed her guardian in Iowa by a named court of competent jurisdiction and has ever since acted as such; that in 1906 defendant Troll, public administrator of St. Louis, was duly appointed guardian in Missouri, and is now acting as such; that plaintiff as guardian is under a $20,000 bond in the proper court in Warren county, Iowa, which bond is now in full force and effect; that said court authorized plaintiff by its due orders to collect by proper proceeding the estate of said ward in the hands of defendant; that the ward is a widow with three children, one a minor about fourteen years of age; that she has no estate in Iowa except a widow’s pension, a small one, received from the United States government; that plaintiff is a relative of said ward by marriage, and a fit and suitable person to be guardian at the domicile of the ward; that plaintiff at the time of defendant’s appointment as guardian, being a non-resident of Missouri, could not be appointed guardian in this State; that defendant’s appointment as such was for the purpose of collecting funds of the ward’s estate in Missouri; that Troll as such guardian has in his hands about $10,000; that the ward is not indebted, so far as known, to any person in Missouri; that two years have passed since Troll’s appointment; that notice of his appointment was duly given as required by law; and that all claims proved against his ward’s estate in Missouri have been paid.

On such agreed facts, the court found for defendant and plaintiff appealed on due steps to the St. Louis Court of Appeals. That court, on its own motion, transferred the case to this court on the theory “the amount in dispute” exceeds $7500 exclusive of costs, basing its ruling on the doctrine of Gartside v. Gartside, 42 Mo. App. 513, a case transferred here and of which we retained jurisdiction. [113 Mo. 348.] Subsequently, it seems, a motion was filed in this court to remand the instant case to the St. Louis Court of Appeals on the grounds of our lack of jurisdiction. This motion was overruled, we now think improvidently. Undoubtedly we could take the question as foreclosed once for all by our ruling on the motion and proceed to decide the cause on its merits. But, on the other hand, this being a court of errors, the power to correct our own is self-evidently an integral part and parcel of the power to correct the errors of other courts, and the duty to correct them in the same case at the first opportunity is always present where a ruling is sharply wrong and unsettles correct practice, or the law. [Star Bottling Co. v. Exposition Co., 240 Mo. l. c. 643-4.] Especially is this so on so vital a question as jurisdiction — a question always obtruding itself, sua sponte, in any case in any court at any time above or below.

That our ruling on the motion to retransfer was improvidently made will appear from the following premises: In the case at bar neither plaintiff nor defendant claim to own the fund in their own right. Contra, both plaintiff and defendant concede it belongs to and constitutes practically the corpus of the estate of their unfortunate ward. Both of them, therefore, are but trustees. She is the beneficiary and the dispute is not over her right to the fund, but it is over their respective rights to the custody of it while it is being used under the supervision of the probate court for its true beneficial owner. So, plaintiff does not ask a money judgment against defendant to be enforced by fi. fa. He invokes merely the power of a .chancellor to do the following thing, to-wit, to coerce a final settlement in the proper probate court of the ancillary guardianship with the ultimate view and purpose of an order of transfer of what then remains of the fund from the ancillary guardian to the domiciliary guardian at the place of residence of the ward in order to throw off the burden of expense, waste and inconvenience of two administrations. Hence the real justiciable dispute is over the power of a court of equity to make that order either by virtue of its superintending control over the probate court, or under a recognized and ancient head of chancery jurisdiction over the estates of insane persons. Necessarily involved, though incidental to the main question thus outlined, is the value of the right in defendant to the custody of the fund, and this in turn springs from the prerequisites, emoluments and fees of his trusteeship falling to him in administering the estate. These, moreover, fluctuate with the amount of the trust fund, with the duration of the trust, etc. Now, in the G-artside case, supra, the trust estate ran up into the hundreds of thousands of dollars and the trusteeship was for life. Judge Rombatjer, speaking in that case, laid the foundation for his judgment on the postulate that where jurisdiction hinges on the value of the matter in dispute such value must be estimated in money; on the further postulate that jurisdiction does not turn entirely on whether the immediate object of the suit was for the recovery of a sum of money, but is to' be got at on a survey of the whole record — for instance: In a suit to establish the right to an office the aggregate of the salary for the unexpired term claimed by the adverse party is the money value of the matter in dispute and is determinative of jurisdiction. So, in an injunction suit, the money value to plaintiff of the object sought to be gained by the bill is the money value of the matter in dispute and determinative of jurisdiction. It was on such postulates, and not otherwise, the Gartside case was resolved on the question of jurisdiction as appears from an excerpt which is the sum of the matter, thus:

“In the case at bar the record fails to show what value, if any, attaches to the defendant’s position as trustee, but it does appear that the duration of that office, if it may be so called, is for life, and invests him, as far as these plaintiffs are concerned, with the partial control of property of the value of two hundred thousand dollars or more, of which he is to be deprived by this proceeding, and we are not prepared to say, unconditionally, that this is a case where the amount in dispute does not exceed twenty-five hundred dollars.” [42 Mo. App. l. c. 515.]

In Gast Bank Note & L. Co. v. Fennimore Assn., 147 Mo. 557, an injunction suit in which there was no allegation in the bill to determine the value in money of relief to plaintiff, it was ruled we had no jurisdiction. This ruling was put in part on a pronouncement made by the Court of Appeals in Brick Co. v. St. Louis Smelting & Ref. Co., 48 Mo. App. 635, reading:

“When the object of the suit is not to obtain a money judgment, but other relief [in this case an injunction], the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. If either is necessarily in excess of the sum within the appellate jurisdiction of this court, then the Supreme Court has exclusive cognizance of the appeal.”

To like effect is Clothing Co. v. Watson, 168 Mo. l. c. 143; and in a very late quo warranto case, State ex rel. Union Elec. Light & Power Co. v. Reynolds et al., Judges, 256 Mo. 710, the learning on the point was reviewed in extenso by our Brother Graves in Banc. In that case we drew to ourselves jurisdiction because the value of the right necessarily involved, estimated in money, self-evidently gave us jurisdiction. We will not swell this opinion by quoting from so late a case. The student with a prying mind may consult it with profit. We dismiss it with the observation that the precedents there marshaled and the reasoning employed point unerringly to the conclusion that we are without jurisdiction in this case, on the question in hand, unless we are prepared to say the money value of the right of the Missouri guardian to hold the corpus of a $10,000 estate in his hands and administer it (thereby enjoying the appurtenant and expectant fees, perquisites and emoluments of the trusteeship), is over $7500. There is a ease, not in our reports, in which no opinion was rendered because it rode off on a motion to retransfer, to-wit, Horton et al. v. Troll, Public Administrator, in Charge of the Estate of Dunham. In that case, although the corpus of the estate itself gave us jurisdiction if- we took that particular amount as decisive, we retransferred it to the St. Louis Court of Appeals because the money value to the administrator of the right to administer was within its jurisdiction.

Turning, now, to the present record, the money value of the right to administer Mrs. Wilson’s estate, which is the only thing Troll stands to lose or win, hence is the “amount in dispute,” in a jurisdictional sense, certainly cannot equal $7500; nnle.ss, more’s the pity (to borrow the wry conceit of a barrister in another case at our bar) we take the letters of guardianship as in the nature of a warranty deed to the whole or the lion’s share of the estate of the ward — a thing we are not willing to do, nor is it asked at our hands.

This court has neither a disposition to yearn after jurisdiction and give teeth to such yearning by reaching out and grasping it on unsubstantial grounds, nor does it shirk a jurisdiction rightfully belonging here. As final arbiter it takes and gives ungrudgingly as the facts warrant and the law directs; and in this case we are of opinion we have no jurisdiction unless other questions besides the amount in dispute give it to us. We have searched the record with an eye to that fact and find no question the Court of Appeals cannot juris dictionally deal with.

The premises all in mind, the cause is retransferred to the St. Louis Court of Appeals. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    W. W. BROYLES v. ENO V. EVERSMEYER, Appellant.
    Division One,
    December 2, 1914.
    1. AMENDING PETITION: Changing Cause of Action: Mistake in Description of Land. Where the original petition in ejectment described the northeast fractional quarter of a section 27, it is not error to permit the plaintiff to file an amended petition describing the land sued for as the northeast fractional quarter of section 28, and after a motion to strike out the amended petition, on the ground that it is the substitution of a new cause of action and not an amendment of the cause of action stated in the original petition, is overruled and defendant stands mute, to render judgment nil dicit for plaintiff on said amended petition for the land described therein.
    2. --: -: Statute Authorizing Correction of Mistake. Sec. 1848, R. S. 1909, declaring that the court, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, may amend any pleading by correcting “a mistake in any other respect,” authorizes the court to permit plaintiff in ejectment to file an amended petition changing the description of the land sued for; and a record entry showing that “leave is granted plaintiff to file an amended petition correcting error in description” is a finding by the court that a mistake was made in the description of the land in the original petition, and those things appearing it will not be held that the amended petition was the substitution of a new and different cause of action.
    Appeal from Lincoln Circuit Courts — Hon. James D. Barnett, Judge.
    Anetrmed.

      Charles Marlin for appellant.
    (1) The two tests adopted in this State to determine whether a second petition is an amendment or the substitution of a new cause of action are: first, that the same evidence will support both petitions; second, that the same measure of damages or recovery will apply to both'petitions. Scovill v. Glasner, 79 Mo. 449; Walker v. Railroad, 193 Mo. 477; Ross v. Land Co., 162 Mo. 317. Another test which the courts have generally adopted is to inquire whether a recovery on the original petition would be a bar to a recovery under the second or amended petition. Bick v. Vaughn, 140 Mo. App. 603; Davis v. Railroad, 110 N. T. 646; 1 Ency. PL & Pr. 556. (2) An application of these tests to the two petitions will demonstrate that the second petition is but the substitution of a new cause of action and not an amendment of the original petition. The evidence which would show title, possession and right of possession of the northeast fractional quarter of section 27 would in no manner show or tend to show title, possession and right of possession to the northeast fractional quarter of section 28. The character of the evidence to support both petitions would not be the same. Burnham v. Tillery, 8 Mo. App. 458; Clothing Co. v. Railroad, 71 Mo. App. 247. (3) The measure of damagns or recovery would not be the same. The rule is that the identity of the matter upon which the action is founded must be preserved in the second petition and the judgment rendered. Walker v. Railroad, 193 Mo. 477; Stewart v. Jackson, 91 Mo. App. 647; 1 Ency. Pl. & Pr. 559. (4) In construing different complaints or petitions to ascertain whether a new cause of action is injected into the second complaint the courts cannot inquire what was the private intention of the pleader but can only look at the petitions to get that intention. Gregory v. Railroad, 20 Mo. App. 448; Sturgis v. Botts, 24 Mo. App. 284. The question in this case seems to be settled in the case of Bricken v. Cross, 163 Mo. 449, a case in which plaintiff after the case had been once reversed, amended his petition so as to cover lands not described in his original petition. The defendant waived his right to object to such amendment by answering the amended petition. The question in the case was whether the Statute of Limitations would run up to the time of filing the original petition or up to the time of filing the amended petition, and the court held that it would run up to the time of filing the amended petition because that was the introduction of a new cause of action. Slater v. Nason, 15 Pick. 345; Robbins v. Harris, 96 N. C. 557; Cilley v. Railroad, 77 Atl. 776; Robinson v. Miller, 37 Mo. 312; Wolf v. Wolf, 158 Pa. St. 621. (5) The liberality in allowing amendments does not extend to such amendments as change the nature and scope of the cause of action or the substitution of a different cause of action in place of the one attempted to be set up in the original pleadings. Pomeroy’s Code Pleadings, see 457; 1 Ency. PL & Pr., p. 472; Hepburn, Code Pleadings, 306; Laughlin v. Leigh, 226 Mo. 620. (6) The amended petition changes the cause of action and substitutes a different one for that stated in the original petition. Bricken v. Cross, 163 Mo. 449; Robinson v. Miller, 37 Me. 312; Wyman v. Kilgore, 47 Me. 184; Robbins v. Harris, 96 N. C. 557; Nickerson v. Bradbury, 88 Me. 593; Wolf v. Wolf, 158 Pa. St. 621; In re Wilhelm Appeal, 79 Pa. St. 120; Slater v. Mason, 15 Pick. 345; Cilley v. Railroad, 77 Atl. 776. The only case in this State which gives any support to the amendment allowed in this case is Wright v. Groom, 246- Mo. 158, and while that case was correctly decided upon the facts, it does not militate against our contention in. this case. The land sought to be recovered in that case was a narrow strip along the dividing line of sections 15 and 22. A former survey of the land had been made and the description in plaintiff’s original petition followed this survey, locating the land sued for in section 15. During the progress of the case and on the defendant’s motion the court appointed other surveyors to resurvey the land, who located the east section corner on the line between the two sections further north than the first survey had located it, thus placing the land sued for in section 22 instead of section 15. The ' amendment asked and allowed was made to correspond to the last survey. The plaintiff’s title was by limitation. The land was the same. “In other words (says the court in that case) the actual land, the real thing, the subject-matter of the suit, was the same under each petition, so the ouster complained of was the same and for aught appearing here the muniments of title would be the same.” Thus we have in that case the identity of the subject-matter of the original petition carried into and made the subject-matter of ■the amended petition and necessarily, the subject-matter being the same in both the original and amended petitions, the same evidence, the same measure of damages or recovery and all the other tests by which the right to amend are judged will give authority for the amendment in that case. But while that case was correctly decided upon the facts as stated by the court the opinion goes further than was necessary and asserts the proposition that an amendment changing the subject-matter of the suit substituting another and different tract of land for the tract originally sued for, was allowable. We submit that our statute is not broad enough to support this proposition. Amendments are not allowed which change substantially the claim or defense. Sec. 1848, R. S. 1909.

      B. H. Norton and Avery, Young & Killam for respondent.
    The only question at issue between the parties is as to the right of the lower court to permit the plaintiff to amend Ms petition by substituting section 28 for section 27. The authorities fully justified the lower court in permitting the amendment and hearing the cause and rendering judgment on the amended petition. Callaghan v. McMahan, 33 Mo. Ill; Sage v. Tucker, 51 Mo. Ap-p. 336; Timber & Iron Co. v. Cooperage Co., 112 Mo. 383; Cooper v. Cranberry, 33 Miss. 117; Heilbron v. Heinlen, 72 Cal. 376; Gillman v. Cate, 56 N. H. 160; Leeds v. Lockwood, 84 Pa. St. 70 ; Blanchard v. Dorman, 236 Mo. 443 ;• “Wright v. Groom, 246 Mo. 158. The case last cited is on all-fours with the case at bar.
   GRAVES, J.

This case involves but a single question of law. Appellant has made a succinct statement of the case in the following taken from the brief:

“The plaintiff commenced this suit in ejectment, for the northeast fractional quarter of section 27, township 50, range 2 west, in Lincoln county, September 16, 1908. To this petition defendant filed- a general demal, October 12,1908. At the March term, 1909, the plaintiff filed his amended petition in which he asked recovery of possession of the northeast fractional quarter of section 28, township 50, range 2 west. On the same day, March 22, 1909, that plaintiff’s amended petition was filed, the defendant filed his motion to strike out plaintiff’s amended petition for the reason that it was the substitution of a new cause of action and not an amendment of the cause of action stated in the original petition, and for various other reasons. This motion was by the court overruled and exceptions- taken and preserved and filed at the same terms of court. The plaintiff took no further steps in the case until March term, 1911, and then on the 28-th day of March, 1911, took judgment against defendant by default. On March 31, 1911, the defendant filed Ms motion to vacate and set aside the judgment and in arrest of judgment. These motions were overruled and exceptions taken and filed.
“The question in the case is: Was the second or so-called amended petition an amendment of the original cause of action or the substitution of a new cause of action. There was no waiver or appearance by defendant to the second petition. Can a plaintiff sue for one tract of land and by amendment recover another by default without appearance by defendant?”

That the last expressions of this court are adverse to the contention of the defendant is conceded by his able counsel. He argues the differentiation of those cases in the first place, and lastly that the broad language used is not a correct enunciation 0f the law. He contends that there is the statement of an entire new cause of action when it is apparent from the two petitions, i. e., the original and the amended, that (1) the subject-matter in dispute is different, (2) that different evidence would be required to support the cases stated in the two respective actions, (3) thal) the measure of damage would be different, (4) that the recovery under one petition would not be a bar to a recovery under the other, and (5) that the same defense would not apply equally well to both petitions.

G-enerally speaking these are the tests applied in determining whether there has been such a departure as to make the amended petition state a different cause of action. However, what we have said upon the subject has been with reference to our statute upon amendments. Section 1848, Revised Statutes 1909, reads:

“The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

If in the record before us the reason of the court for permitting the amendment did not appear, the court would be presumed to have been guided by the statutory rule in permitting the amendment. This statute says the court may amend a pleading at any time before final judgment “by correcting a mistake in the name of a party, or a mistake in any other respect.” In permitting this amended petition to stand it could well be concluded that the trial court was convinced that the section number as stated in the original petition was a mere mistake, and such as often happens in such petitions. A.correction of this mistake, if it was shown to the court to have- been a mistake, is one which would, in our judgment, fall fairly within the meaning of the clause of the statute with reference to “a mistake in any other respect.”

But in the ease at bar we are not left in the dark as to the reason of the trial court for permitting the amendment. The record nisi reads:

“Now at this day come the parties herein by their respective attorneys, and leave is granted plaintiff to file during this day an amended petition correcting error in description, and said amended petition is now filed.”

This amounts to a finding of the court that there was a mistake made in the original petition so far as the description of the land was concerned, and plaintiff was given leave to correct the same. Nor is this a harsh construction of the statute, because if the defendant is- placed at any disadvantage by reason of the amendment, such amendment, under' the statute, must be granted upon terms. In this case, the defendant sought no terms, but stood boldly upon his conception of the law. His boldness may prove his' undoing, but if so, the undoing has been one wrought by his own hands.

This is the view of the statute taken by Lamm, J., in the case of Wright v. Groom, 246 Mo. 158, and is likewise the view previously taken by this court in the other Missouri eases cited by Judge Lamm. Whether the language used by the court in Wright v. Groom, supra, was strictly called for by the facts of that case, is immaterial, if such language announces good doctrine, and we think it does. Under the opinion in that case as well as the other cases therein cited, this judgment should be affirmed. The statute quoted is broad enough to cover just what was done in this case. Let the judgment be affirmed.

All concur.


author: BOND, J.

text:
    GENEVIEVE JODD, Appellant, v. LOUIS MEHRTENS.
    Division One,
    December 2, 1914.
    LIMITATIONS: Dower: Thirty-Year Statute. A widow who claims dower in land which belonged to her husband during his lifetime cannot recover in an action for the admeasurement of dower, if the land has been in the lawful possession of those who bought at a foreclosure sale under a deed of trust signed by her and her husband and of those who claim under them, for thirty-one consecutive years before her suit was instituted, and during all that time neither she nor any one for her has paid any taxes, and if the title emanated from the government more than ten years before the entry by lawful possession of any person holding the premises.
    Appeal from St. Louis City Circuit Court. — Eon. G. G. Allen, Judge.
    Aeeirmed.

      E. K. Bunch and E. G. Bodge for appellant.

      (1) The trial court found for the defendant not only against the weight of the evidence, but in direct opposition to all of the evidence in the cause, and the court therefore erred in overruling plaintiff’s motion for a new trial. Doering v. Sauna, 56 Mo. 480; Ittner v. Hughes, 133 Mo. 680. Dower is not within the Statute of Limitations, unless made so expressly. Dyer v. "Witler, 89 Mo. 95. The law existing at the time of marriage (1848) and not at the time of its dissolution (1878) determines the marital rights of the parties. Riddick v. Walsh, 15 Mo. 519. Dower is a right in law fixed from the moment marriage and seizin concur and becomes a title paramount to that of any person claiming under the husband by subsequent act. Baker v. Railroad, 122 Mo. 396. The Statute of Limitations does not commence to run against a widow until dower has been assigned, nor is staleness of demand any defense to an action for admeasurement of dower. Johns v. Fenton, 88 Mo. 67; Williams v. Courtney, 77 Mo. 587. The act limiting actions for the recovery of real estate, February 4, 1847, and the same act, R. S. 1855, p. 1045, does not include the limitations of suits for dower. Littleton v. Patterson, 32 Mo. 357. Where there is a change in the law after the husband’s alienation, the widow’s dower in respect to the aliened lands is governed by the law as it existed at the time of the alienation. Kennerly v. Ins. Co., 11 Mo. 204. Appellant cites the case of Dyer v. Witler, 89 Mo. 95, as supporting the proposition that dower is not within the Statute of Limitations unless made so expressly. The opinion in this case was rendered by the Supreme Court at the April term, 1886, but the Legislature enacted R. S. 1889, sec. 4558, now Sec. 391, R. S. 1909, and the Act of 1887 was so amended as to require the action for admeasurement of dower to be brought within ten years after the death of the husband. Appellant contends that the above statutes are void and invalid as to this appellant. The concrete question in this case is, does the Act of 1887 (Laws 1887, p. 177), bar the widow’s right of dower ten years after the death of the husband? Appellant contends that said act and all decisions of our appellate courts sustaining said act, are void and invalid as to appellant’s right of dower, because said act is prospective and could not be retroactive. The Constitution of the United States forbids and prohibits any retroactive acts. Therefore we contend that the Act of 1887 was and is prospective, and the appellant’s dower should be sustained.

      A. & J. F. Lee and James A. Waechter for respondent.
    (1) Appellant relinquished her dower interest by the execution and acknowledgment of the deed- of trust-of May 1,1876, in favor of Mary EL Fleming’s trustees. Barker v. Circle, 60 Mo. 263; Sharp v, McPike, 62 Mo. 302; 1 R. S. 1872, secs. 2, 7, 9 and 14, pp. 273-4-5; Ellis v. Kyger, 90 Mo. 606; De Bar v. Priest, 60 Mo. App„ 536; Uenoway v. Maize, 163 Mo. 232. (2) Appellant’s right to dower, if any, barred by the ten-year Statute of Limitations. Laws 1887, p. 177; Sec. 391, R. S. 1909; Robinson v. Ware, 94 Mo. 678; Beard v. Hale, 95 Mo. 18; Farris v. Coleman, 103 Mo. 366; Long v. K. C. Stockyards, 107 Mo. 304; Null v. Howell, 111 Mo. 277; Brewing Co. v. Payne, 197 Mo. 431; Chouteau v. Harvey, 36 Fed. 541; Winters v. De Turk, 7 L. R. A. 659; Tiedeman on Real Property (1906 Ed.), p. 112; Harrison v. MeReynolds, 183 Mo. 533; Phillips v. Harden-berg, 181 Mo. 463. (3) Appellant’s right to dower, if any existed, is barred by adverse possession. Beard v. Hale, 95 Mo. 16; Robinson v. Ware, 94 Mo. 678; Null v. Howell, 111 Mo. 273; Long v. Stockyards, 107 Mo. 304; Robinson v. Allison, 192 Mo. 366; Stone v. Perkins, 217 Mo. 586; Hendricks v. Mnsgrave, 183 Mo. 311; Myers y. Schuckmann, 182 Mo. 159; Fugate v. Pierce, 49 Mo. 441; Franklin v. Cunningham, 187 Mo. 196. (4) Appellant, if not already barred by the ten-year Statute of Limitations, adverse possession, or lapse of time, is barred under the thirty-year Statute of Limitations. Sec. 1884, R. S. 1909; Requa v. Graham, 57 L. R. A. 641; De Hatre v. Edmunds, 200 Mo. 275; Crain v. Petermann, 200 Mo. 299; Campbell v. Greer, 209 Mo. 216; Dunningham v. Hudson, 217 Mo. 101; Collins v. Pease, 146 Mo. 135.
    STATEMENT.
    This is an action for an alleged deforcement of dower. It was begun on October 28, 1910, in the circuit court of the city of St. Louis. The plaintiff (who has died since the appeal taken herein) was the wife of Michael Jodd, Sr. She alleged the death of her husband on the - day of September, 1878, and his seizure at the date of his death of two acres of ground in the city of St. Louis, and State of Missouri. The petition recites the names of the children and heirs of the deceased, who survived him, and alleges that plaintiff, upon the death of her husband, became entitled to dower in the land described in the petition, and that she had never at any time relinquished her right, nor received any equivalent therefor. That the defendant, Louis Mehrtens, entered into said 'premises and wrongfully deforced plaintiff of her dower right therein on the- day of May, 1910. The petition prayed for damages and monthly rents, and for an admeasurement in said land if that could be done. Otherwise, for monthly rents and profits, and for general relief. The answer admitted the possession of the defendant as a tenant, denied that he held under the plaintiff, or any of the heirs mentioned in her petition, denied that plaintiff had not relinquished her dower in the manner prescribed by law, denied that she was entitled to an admeasurement of dower, and pleaded specially the statute of ten years of adverse possession, and also the statute of thirty-one years and alleged.plaintiff was forever barred .thereby to any right or title to said property. The reply took issue. The case was tried upon an agreed statement .of facts in the record, in the form of a written stipulation signed by the parties, and upon some supplemental testimony, given by the real estate agent, who had charge of the property and knew of its condition for thirty or thirty-five years, whose testimony is not however set out under appellant’s abstract. A summary of the agreed-statement of facts is, to-wit: That the plaintiff is the lawful widow of Michael Jodd, deceased, having intermarried with him, on the 26th of October, 1848; that the said Michael Jodd died December 30, 1878; that the defendant in the action was tenant in possession under other persons than the children and widow of Michael Jodd, deceased; that said Michael Jodd and the plaintiff were in possession of the premises on the date of a deed of trust, executed thereon by them, on May 1, 1875, and until the death of said Jodd in 1878; that they held possession under a provision of said deed of trust, whereby the premises were let to the grantors therein until a sale, under said deed, upon-payment of a monthly rent of one cent, and upon an agreement to deliver possession when said deed of trust should be foreclosed; that said deed of trust was jointly executed by Michael Jodd, and the plaintiff, his wife, on May 1, 1875, and conveyed the property to Alfred Fleming and John F. Lee, as trustees for the benefit of Mary E. Fleming, and her legal representatives. Said agreed statement of facts then concludes, to-wit:
    “7. It is admitted that the real estate mentioned and described in said deed of trust of May 1, 1876, was duly sold by said trustees Alfred Fleming and John F. Lee on September 18, 1879, and at said sale ■ the said defendant, Mary E. Fleming, became the purchaser thereof. The trustee’s deed may he read in evidence.
    “8. It is admitted that the legal representatives of said Mary E. Fleming were at all times since, and are now, in possession of said real estate openly and under a continuous claim of absolute title thereto by and under the sale of said premises under and through said deed of trust executed by said Michael Jodd and his wife, the above-named plaintiff, by said trustees Alfred Fleming and John F. Lee, to the said Mary E. Fleming, on September 18, A. D. 1879.
    “9. It is admitted that the equitable title to the premises in dispute emanated from the Government more than fifty years before the bringing of this suit, and that neither the plaintiff, nor any one under whom she claims, has paid any taxes on said premises, or any part thereof, for any part of thirty-one years next preceding the institution of this suit.
    “10. Either party is at liberty to prove any other relevant, competent and additional facts which are not inconsistent with the facts herein admitted.”
    Upon the submission of the case to the trial court without the aid of a jury, judgment was rendered for defendant on October 6, 1911, from which plaintiff duly appealed to this court.
   OPINION.

BOND, J.

(After statement of facts as above).— Upon the calling of the cause in this court, it was submitted without argument, upon the briefs filed by both parties. It must be confessed that the abstract statement, brief and argument filed on behalf of appellant does not disclose that her motion for new.trial was preserved in a bill of exceptions. And we might for that reason, under the repeated rulings of this court, decline to consider any question on this appeal other than those arising upon the record proper. [Jodd v. Lee, 256 Mo. 536; State ex rel. v. Adkins, 221 Mo. l. c. 120; Barham v. Shelton, 221 Mo. l. c. 70; Gilchrist v. Bryant, 213 Mo. l. c. 443; Thompson v. Ruddick, 213 Mo. l. c. 564.]

But a careful consideration of all that is contained in appellant’s brief, including in that review the evidence contained in the agreed statement of facts, as if it had been properly preserved in the bill of exceptions, demonstrates that there was no error in the ruling made by the trial court in favor of the defendants, and this, for the reason, among others, that the agreed statements of facts show that plaintiff’s cause of action falls strictly within the terms of the statute of repose pleaded in defendant’s answer, and set forth in section 1884, Revised Statutes 1909: That is a familiar statute, and need -not be quoted. It was first enacted in 1874. [Collins v. Pease, 146 Mo. l. c. 139.]

It applies to all titles, legal, as well as equitable, which have emanated from the Government more than ten years before the entry of lawful possession of any person holding the premises, which shall, or might be, claimed by another, and precludes any assertion of such claim, if it be shown that said claimant, or those under whom he deraigns title have not been in possession of said premises at any time within thirty consecutive years, and neither said claimant, nor those nnder whom he may hold, have paid any taxes for that period, nor within one year after its lapse, brought an action to recover the premises. The admission contained in section 9 of the agreed statement of facts shows that this case is within the plain language of the statute and is barred by the lapse of more than thirty-one years from the time plaintiff’s right to dower accrued upon the death of her husband in September, 1878, and the institution of her suit on the 28th of October, 1910. [Sec. 1884, R. S. 1909; DeHatre v. Edmonds, 200 Mo. 246, 275;. Crain v. Peterman, 200 Mo. 295, 299; Campbell v. Greer, 209 Mo. 199, 216; Dunnington v. Hudson, 217 Mo. 93, 101; Collins v. Pease, 146 Mo., supra.]

The judgment of the trial court was the only one which could have been rendered under the pleadings, and the facts admitted of record. It is therefore affirmed.

All concur.


author: WOODSON, P. J.

text:
    JACOB A. MIDDLETON v. FRANK T. BAKER and JOHN H. BUCHANAN, Appellants.
    Division One,
    December 2, 1914.
    1. TRUSTEE’S SALE: Mistake as to Time:-Set Aside. A mistake as to the time of sale of land advertised' for sale under a deed of trust, coupled with great inadequacy of price and an offer of the beneficiary to pay all the costs of the sale made before he arrived on the ground, is a sufficient basis for setting aside the sale and ordering another sale.
    2. -: -: -: Offer to Pay Costs. Where the property was duly advertised for sale between nine and five o’clock, and was sold on the day mentioned at two o’clock, in the absence of the beneficiary in the deed of trust, who was mistaken as to the hour of sale and did not arrive until a few moments after the property had been sold by the sheriff as substituted trustee, at less than four per cent of its value and at about eight per cent of the debt, and where upon his arrival he requested the sheriff to. resell the property and offered to pay all the costs then accrued and to guarantee that the property, if resold, would- bring a fair market price, the sale should be set aside on the grounds of common justice.
    Appeal from Callaway Circuit Court. — Ron. N. D. Thurmond, Judge.
    Aeeibmed.
    . J. R. Baker for appellants.
    The judgment of the court was not warranted by tbe pleadings or the evidence: (1) The only reason alleged and the only reason shown by the evidence for setting aside the sale was the inadequacy of the price. Inadequacy of price aloné is not sufficient to set aside a sale. Holdsworth v. Shannon, 113 Mo. 508; Davis v. McCann, 143 Mo. 172; Hanson v. Neal, 215 Mo. 256. Especially is this true when the inadequacy of price seems to have been due to the mortgagor’s own conduct or to his carelessness or his indifference to his interests. 27 Cyc. 1507. As the sale is made at the instance of the beneficiary, it is only reasonable that this doctrine should apply with equal or greater force to him. (2) The effect of the judgment is to grant respondent relief from a situation brought about by his own negligence. One cannot plead and prove his own negligence as a ground for relief. Sands v. Brewing Co., 131 Mol App. 416; Felver v. Eailroad, 216 Mo. 211. And this doctrine applies to sales under mortgage or deed of trust. 27 Oyc. 1507. The evidence in this case shows that the respondent was not at the sale to protect himself through sheer negligence. He knew the time and place, had fixed these himself, and was- at or near the place of sale at the time of the sale, but failed to attend. (3) Equity demands that he who seeks equity must come with clean hands. The respondent in this case certainly does' not come with clean hands, (a) Because his own evidence shows that although he only loaned the negroes, debtors and grantors in the deed of trust, the- sum of fifty dollars, yet he held their note in the sum of two hundred and twenty-seven dollars secured by the deed of trust under which this sale was made, (b) Because respondent’s own evidence shows that he stayed away from the sale in order and with the purpose of having the sale at an unusual hour, at a time known to no one but himself and to suit no one but himself. This court has a right to draw reasonable inferences as to the motive for such conduct. The evidence shows that respondent was familiar with such sales and had conducted a number in his own way. (4) Respondent has not offered to refund to appellants the money which they have spent or shown any disposition to put them in statu quo.

      E. L. McCall for respondent.
    (1) Plaintiff had no agreement with the sheriff trustee that the land was to be sold between one and two o ’clock in the afternoon — the evidence shows nothing of the kind. The evidence shows that the plaintiff was innocently mistaken as to the time the land would be sold — thinking it could be sold any time between the hours of nine o’clock in the forenoon and five o’clock in the afternoon, as stated in the deed of trust. Plaintiff reached the place of sale ten minutes after two o’clock, and learned that the land had just been sold — and then and there he demanded of the sheriff-trustee a resale of the property' — offering to pay all costs and make the land bring the full amount of his debt, amounting to $338. One witness testified that he desired bidding on the land, but reached the place of sale too late. He also stated the value of the land to be $600 or $800. The sheriff stated that he never paid the purchase price of the land over to plaintiff. In Griffith v. Handley, 10 Bosw. 587,- cited in Holdsworth v. Shannon, 113 Mo. 523, it was held that such a mistake as to time of sale was a case of surprise, which coupled with inadequacy of price, justified setting the sale aside.
   WOODSON, P. J.

'This is an act brought in the circuit court of Callaway county, by the plaintiff against the defendant to set aside a sale of real estate, sold under a deed of trust, executed to secure borrowed money.

The grounds for relief, as charged, were fraud, mistake, surprise and inadequacy of consideration paid for the land, etc.

The judgment was for the plaintiff and the defendant appealed to the Kansas City Court of Appeals, and that court certified the case here under the Constitution.

The record is short, the facts few and practically no conflict in the testimony. The facts of the case are substantially as follows:

Ón and prior to July 1, 1905, N. M. Baker, Lidia Baker, William Baker and Nancy Baker owned forty acres of land situate in Callaway county, Missouri, particularly described in the petition. On that date they made and delivered to the plaintiff, James A. Middleton, their promissory note for the sum of $227.20, bearing eig'ht per cent interest, due one day after date, and executed the deed of trust conveying said land to secure said loan. Said note not having been paid when due, the -plaintiff requested the defendant, John H. Buchanan, the sheriff of said county, the substituted trustee (the one named in the deed of trust having died), to advertise and sell the land to pay said note. In pursuance to said request and according to the terms of said deed the trustee advertised the land for sale at the west front door-of the court house, at Fulton, on August 1, 1910, between the hours of nine o’clock in the forenoon and five o’clock in the afternoon, and on said day at the hours of two o’clock p. m. he sold said land to the defendant Frank T. Baker, 'for the sum of $26, a stranger to all the transactions.

All the Bakers save the last one mentioned were negroes; and the latter was an old friend of the makers of the note, and claimed to have acted for them in the purchase of the land at the trustee’s sale, but he never mentioned that fact to the trustee or anyone else present at tye sale; and if I understand the record there was no evidence introduced tending to show he was acting for the makers. At the time the sale took place neither the plaintiff nor any of the makers of the note were present, which fact was known to the trustee.

There was other land sold immediately preceding the time the sale of this forty acres took place. There was a large crowd present, but only two bids were made for this land. The defendant Baker being one of them, and he being the highest bidder, became the purchaser; and he immediately paid the purchase price, and the trustee executed to him a trustee’s deed conveying to him the land mentioned.

The weight of the evidence shows that the plaintiff was innocently mistaken as to the time the land was to be sold, and for that reason was not present at the exact moment the sale took place, but appeared a very short time thereafter; but a few minutes. Upon learning of the sale he immediately, then and there, requested the trustee to resell the land, but the trustee declined to so do — hence this suit.

At the date of the sale there'was due on the note the sum of $338, and the evidence tended to show that the land was worth from $600 to $800.

The plaintiff contends, and the greater weight of the evidence shows, that he was innocently mistaken as to the exact hour at which the sheriff would offer the land for sale, and for that reason he was a few minutes too late to be present at the sale, and was therefore taken by surprise.

In addition he contends that because of the fact that the land sold for only $26, about eight per cent of the debt, and from three to four per cent of the value of the land, the sheriff should have declared the sale void and resold it, especially in the light of the facts that plaintiff offered to pay all the costs then accrued, and offered to guarantee that the land, if resold, should bring its fair market value.

In the case of Griffith v. Hadley, 10 Bosw. 587, it was held that a mistake as to the time of sale, coupled with the fact of inadequacy of consideration paid therefor, without much competition, justified the court in setting aside the sale, and ordering a resale. That case was cited with approval in the case of Holdsworth v. Shannon, 113 Mo. l. c. 523.

If those authorities are to be followed in this case, which I think they should be, upon the grounds of equity and common justice, we must hold that the sheriff did not properly perform his duties in the premises, but should have set the sale aside and resold it, then and there, if the bidders had not dispersed, which the evidence strongly tends to show they had not, or if they had done so, then readvertised it for sale for some future date, according to the terms of the deed of trust.

Entertaining these views I am satisfied that the judgment of the circuit court should be affirmed.

All concur.


text:
    In re Application of SCOTT AIKEN for a Public Road; JOHN T. HOWELL, Exceptor, v. JACKSON COUNTY, Appellant.
    Division One,
    December 2, 1914.
    1. PUBLIC ROAD: Appeal from Award of Damages to One Land Owner: Rights of Another. It is only errors that affect appellant or plaintiff , in error that are reversible. On an appeal by the county in a proceeding to establish a public road, from a judgment on the issue raised by one landowner by his exceptions to the quantum of damages awarded him, the county cannot he heard to interpose the right of another landowner whose land was taken and abided the report of the commissioners awarding him no. damages. Such other landowner does not complain, and the county cannot complain for him.
    2. -: Failure to File Exceptions to Commissioners’ Report. A landowner whose land is taken for a public road who fails to file exceptions to the commissioners’ report awarding him no damages, cannot thereafter, if the county court had jurisdiction of all the landowners and the subject-matter, claim damages.
    2. -: -: Raised by County. On an appeal by the county from the judgment of the circuit court awarding damages to one landowner who excepted to the award made by the commissioners and appealed from the verdict of a jury in the county court, such landowner cannot be punished because another who did not except to the report of the commissioners was awarded no damages for his land taken. The county after trial in the circuit court cannot except for the non-excepting landowner, nor compel him to come into court, and the landowner who did except is in no wise responsible for his failure to except.
    4. -: -: Not Raised Below. Unless the point was made in the circuit court that no damages were awarded by the commissioners to a non-excepting landowner whose land was taken for the public road, it cannot be considered on appeal.
    5. MOTION IN ARREST: Erroneous Judgment. In order to raise the point on appeal that the judgment is erroneous in that it is not responsive to the issues, there must be a motion in arrest.
    6. PUBLIC ROAD: Appeal to Circuit Court: Matters for Consideration: Judgment. Where the county court found the road to be necessary and entered judgment establishing it, and a landowner appeals to the circuit court solely from the award of damages to him, the judgment of the county court establishing the road is not drawn in question or put in jeopardy by the appeal, and to that extent the judgment remains • final, operative and self-enforcing, and it is not necessary for the judgment of the circuit court to find the jurisdictional facts upon which the location and establishment of the public road depends.
    7. -:--: -: Affidavit for Appeal: Merits. An affidavit for appeal by a landowner from the award of damages by the jury in the county court to him for land taken in which it is stated that he “is injured by the verdict of the jury and the judgment of the court, and this appeal is from the merits and an order and judgment taxing costs,” when fairly read, means that the appeal was taken only from the verdict and judgment for damages and costs, the word “merits” being due to the statutory relation between appeals from justices’ courts and from county courts.
    8. --: -: Liability of County for Damages. When the county court has found the proposed road to be of sufficient public utility to warrant its establishment at the expense of the county, has caused it to be opened and has taken possession, the county thereby becomes irrevocably bound, by its own election, to pay the damages assessed in the circuit court in favor of a landowner whose property was taken for the road and who excepted to the commissioners’ award and to the verdict of the jury in the county court, and appealed to the circuit court on the issue of the amount of damages alone.
    9. -: Measure of Damages: Fences: Twice Added. In estimating the damages to a landowner caused by constructing a public road through his land, the jury may be instructed that, in estimating his damages, they may take into consideration the cost of building a new fence, when such fence is necessary; but they should not be told to “consider the quantity and value of the land taken for the road, and also the cost of building the necessary fences along said road, and damage to the whole tract of land of which that taken forms a part, and from the sum of these deduct the benefits peculiar to such tract;” for that is, in effect, by loose language, to tell them to add the cost of the fence to the sum of the value of the land taken and damage to that not taken, when, in fact, the cost of fencing is but one of the elements that go to swell the owner’s damage.
    10. -:-: -:--: Error Corrected on Appeal. Where the verdict is swollen by a definitely ascertained and segregated erroneous amount, the false item may be eliminated •by excision, by requiring a remittitur. Where the instruction authorized the jury to return a verdict for the value of constructing a fence made necessary by the establishment of a public road, in addition to the value of the land taken and damage to that not taken, and all the witnesses agree on the cost of such a fence, that cost will be deducted from -the gross amount of the verdict for damages, as a condition of affirmance.
    Appeal from Jackson Circuit Court. — Eon. Walter A. Powell, Judge.
    Affirmed (conditionally).

      Roselle, Vineyard & Thacker and Frank A. Roys for appellant.
    (1) The court erred in giving at request of respondent, oyer the objection of appellant, instruction A, because it required tbe jury to assess the cost of fences as a distinct item of damage and it also contains overlapping provisions. ' Railroad v. MurpMne, 4 "Wa'sh. 448; Glendenning’ v. Stahley, 173 Ind. 681; Farmers Co. v. Cooper, 54 Colo. 409; Newgass v. Railroad, 54 Ark. 145; Pittsburg v. McCloskey, 110 Pa. St. 436; Curtain v. Railroad, 135 Pa. 20; Ilanrahan v. Pox, 47 Iowa, 102; Henry v. Railroad, 2 Iowa, 288; Commissioners’ Court v. Street, 116 Ala. 36; Lewis on Eminent Domain, sec. 498; Jackson County v. Waldo, 85 Mo. 637; Railroad v. Knapp, Stout & Co., 160 Mo. 396; Railroad v. Baker, 102 Mo. 553; Newby v. Platte County, 25 Mo. 258; Lingo v. Burford, 112 Mo. 157; Daugherty v. Brown, 91 Mo. 32; Bennett v. Hall, 184 Mo. 421; Railroad v. Fowler, 142 Mo. 679; Railroad v. Ridge, 57 Mo. 601; Railroad v. Waldo, 70 Mo. 631; McElroy v. Air Line, 172 Mo. 555; Hickman v. Kansas City, 120 Mo. 122; Bridge Co. v. Stone, 194 Mo. 188; Combs v. Smith, 78 Mo. 32. (2) The judgment of the circuit court is invalid because the court made no finding of the jurisdictional facts which would authorize the road to be established and the judgment incorporates no order establishing the road. R. S. 1909, sec. 10440; Bennett v. Hall, 184 Mo. 407; Allen v. Welch, 125 Mo. App. 287; Williams v. Kirby, 169 Mo. 629. (3) The judgment is invalid because it appears from the face of the record that the damages to the land of John P. Webb affected by the proposed road were not considered or determined. R. S. 1909, secs. 10438, 10440; State ex rel. v. Gill, 84 Mo. -248; Constitution, art. 2, sec. 21; Peterson v. Smith, 6 Wash. 163; Kitsap v. Melker, 52 Wash. 59; Askam v. King County, 9 Wash. 1; Kime v. Cass County, 71 Neb. 677; Levee Comm. v. Dancy, 65 Miss. 341; State v. Fisher, 43 N. J. L. 377.

      L. T. Drydm for respondent.
    (1) Instruction A correctly stated the law. In Galbraith v. Prentice, 109 Mo. App. 498, which was an appeal from a judgment assessing damages in favor of Prentice for the opening of a. public road through his farm, a very similar instruction to this was given, and was held to correctly state the law. Appellant’s counsel has cited a number of cases from other States and some Missouri cases; but the most of the Missouri cases cited are railroad cases, where the railroad was seeking to condemn land for its right of way. Under our statutes, the railroad company is bound’ to build and maintain fences on either side of the right of way, at its own expense. This being true, of course the property owners in such cases would not be entitled to recover any damages for building fences. See R. S. 1909, see. 3145; Railroad v. Fowler, 142 Mo. 679. (2) The appeal was not taken from the order of the county court establishing the road, but from the verdict of the jury and the judgment of the court on the assessment of Howell’s damages. The circuit court had no jurisdiction to make any finding, authorizing an establishment of the road. That question was not before the court. R. S. 1909, secs. 10440, 4091, 7570. The “merits” referred to in the affidavit referred of course to the damages which the jury had allowed him and to nothing else. The whole of appellant’s argument upon this point is not based upon the facts in this case and the authorities are therefore not in point. (3) All parties tried this case in the circuit court upon the theory that the appeal was only from the verdict and judgment on the assessment of the damages allowed Howell, respondent herein. . No reference is made by either party to any other question. This being true, the appellant here is bound by that theory, and cannot seek to adopt a different one in this court. Dougherty v. Gangloff, 239 Mo. 649; Jones v. Ptib. Co., 240 Mo. 200; O’Hara v. Gas Light Co., 244 Mo. 395; Railroad v. Himmelberger, 247 Mo. 179; O’Hara v. Gas Light Co., 131 Mo. App. 428; Rogers v. Foundry Co.,. 167 Mo. App. 228.
   LAMM, J.

Appeal by Jackson county from a judgment for damages in favor of a landowner.

No remonstrance having been filed in the matter of locating and opening a public road in Sni-a-bar township, Jackson county, presently proceedings were had culminating in orders in the county court finding jurisdictional facts together with the practicability of the road, that same was of such public utility as warranted the location, establishment and opening thereof at the expense of the county, etc., the petitioners depositing the probable damages, estimated at $200, in the county treasury. It was further ordered that the proper named officer view, survey and mark out the road and take relinquishments of rights of way, etc. Presently, such officer made report in due statutory form, showing, among other things, that the road ran through the land of John T. Howell, who claimed damages in the sum of $2000. On the approval of that report, three disinterested freeholders were appointed commissioners to view the premises, hear complaints and assess damages to the owners of property not relinquishing the right of way, the court further finding anew that the road was of sufficient public utility to warrant the opening and establishment thereof at the expense of the county. Presently, after qualifying, those commissioners reported assessing Howell’s damages at $400.

Going back a little, there was another property-owner who did not relinquish the right of way, to-wit, John P. "Webb. As to Webb the commissioners reported “damages, none.” To that assessment, Webb filed no exceptions.

(N. B.: No question is raised on the regularity of any of these preliminary matters or to the jurisdiction of the county court; hence details become unimportant.)

On the coming in of the commissioners’ report, John T. Howell in due time filed his written exceptions to the effect that the damages allowed by the commissioners were inadequate, and he claimed and asked for a jury to assess the same. .Presently, on the coming in of these exceptions, a statutory jury of six freeholders was impaneled and, on a trial, it brought in a verdict assessing his damages at $200. Presently, upon that verdict the road forty feet in width was established as a public road by the judgment of the county court, describing it, the parties owning land through which the road ran were allowed until the following March to give possession and open the same, a warrant was ordered issued to Howell, and he, in turn, was ordered to pay all costs accruing since the date of filing his exceptions.

In due time Howell perfected his appeal to the circuit court, his agent’s affidavit for appeal, among other things, stating: . . he believes the appellant is injured by the verdict of the jury, the judgment of the court, and that this appeal is from the .merits and an order and judgment taxing costs.” Thereupon a transcript of the proceedings was filed in the circuit court of Jackson county, and presently at a trial there, on the question of damages alone, a new jury awarded him $1500, and judgment followed against Jackson county for that sum. On the coming in of a motion for a new trial, the court required a remittitur of $200, which was made. It thereupon entered a new judgment for $1300, at the same time overruling the motion. From that judgment, Jackson county appeals.

The motion for a new trial was put on the grounds that the verdict was against the evidence, the weight of the evidence, the law and the evidence, showed passion and prejudice and was excessive. Furthermore, that the court erred in giving three instructions, A, B and C, for plaintiff; also in admitting incompetent testimony over the objection of defendant and in excluding competent testimony offered by the defendant.

At the trial in the circuit court, Webb did not appear, nor did anyone appear for and on behalf of any . of the petitioners for the road. The only appearances were on behalf of Howell, exceptor, on one side, and Jackson county on the other. The following excerpt from appellant’s statement sufficiently indicates the scope of the last trial:

‘ ‘ The trial of the case in the circuit court was also directed solely to Howell’s claim for damages.” (And we may add, the judgment was limited to his damages.) “No evidence was introduced concerning the damages of John P. Webb and the jury in their verdict made no reference to him at all. Neither was any evidence introduced to show the signers of the petition were qualified freeholders, or that notice had been given of their intention to present their petition to the county court, or that the road was of sufficient utility to warrant its establishment at the expense of the county.”

The record shows that appellant objected to no testimony below and that no testimony offered by appellant was excluded; nor is it now contended there was any error in instructions B and C given for plaintiff; nor that the verdict, as a verdict, is against the evidence, or the weight of the evidence, or the law and the evidence; nor that the jury was actuated by passion and prejudice against defendant. So that, by elimination, appellant reduces its assignments of error materially, as will appear in due course.

Challenged instruction A reads (the italicized clause containing the alleged vice).

“The court instructs the jury that in assessing the damages to the landowner Howell you should consider the quantity and value of land taken for the road, together with improvements thereon, if any, and also the cost of building the necessary fence along said road, if any, and damage, if any, to the whole tract of land, of which that taken for the road forms a part, by reason of the road running through it, and from the sum of these deduct the benefits, if any, peculiar to such tract; that is to say, benefits peculiar to the tract itself and not shared in common by it and other lands in the same neighborhood.”

The record shows the road was opened from end to end and side to side in due time under the judgment and orders of the county court, and, as we understand it, has ever since then been and is now in use as a public road.

In taking its appeal, appellant county filed no motion in arrest, but stood alone on its motion for a new trial.

So much for a statement of the case.

The questions here are three, to-wit:

(1) That respondent’s instruction A was erroneous in that it contained overlapping items on elements of damage and required the jury to assess the cost of fences as a distinct item of damages.

(2) That the judgment is invalid because the circuit court made no finding of jurisdictional facts authorizing the road to be established and the judgment incorporates no order establishing the road.

(3) And is invalid because, on the face of the record, it appears that damages to the land of John P. Webb was not considered or determined.

Of these in inverse order:

I. Of Webb’s damages.

The road statutes direct that any party in interest may file written exceptions to the report of the commissioners assessing damages. Thereupon a jury of six freeholders, qualified under the law to act, shall be summoned, which jury “shall try the case anew on the question of damages, in each case separately.” [R. S. 1909, sec. 10438.] On certain contingencies the county court is authorized to order the road established and opened and one of these contingencies is “if the parties in interest fail to file written exceptions thereto.” {Ibid., sec. 10439.] Turning to section 10440, Ibid., it contemplates an appeal' by "either party” to the circuit court "from the judgment of the county court assessing damages, or for opening . . . any road.” "We shall assume for the present, for the purposes of the point in hand, that Howell’s appeal to the circuit court was not from the judgment opening’ the road, but from the verdict on the issue raised by his written exceptions on the quantum of damages and from the judgment on that verdict. From this viewpoint how stands the case on the assignment of error relating to the non-assessment of damages for the appropriation of Webb’s land for the road?

In our opinion the point is without substance, because :

(1) In the first place, in so far as the point concerns Webb and his rights, he is not a party to this proceeding. Not being in court, appellant is not entitled on its appeal from the Howell judgment to interpose the rights of Webb, if any he have. It must let Webb speak for himself. An appellant is not allowed two voices on appeal, one for itself and another for some party absent and not complaining. One voice is enough. It is only errors that affect appellant or plaintiff in error that are reversible, and courts lend an attentive ear to none other. [City of St. Louis v. Lanigan, 97 Mo. l. c. 180; R. S. 1909, sec. 2082; Kansas City v. Woerishoeffer, 249 Mo. l. c. 24.]

(2) In the next place, an analysis "of the sections of the road statute cited supra put it beyond question that the county court had jurisdiction over all landowners affected by the establishment of the road. Webb was one of them. When the commissioners with notice to him (i. e., by an order entered in a proceeding to which he was a party) were appointed to assess damages, view the premises and hear complaints and, in the performance of that .duty, reported he was not damaged, the statute provided him a remedy he could take or leave, to-wit, to file exceptions and have his damages assessed anew. Webb being in that fix and standing mute, do we understand learned counsel now appearing for appellant county to take the position that Webb could neglect to file exceptions, allow the road to be located without protest, and, not only so, but open the road himself in pursuance to the court’s order and turn it over to the public and thereafter claim damages? An answer to that question is not necessary to our case, but we may as well say while we are about it that we do not so understand the law. In Seafield v. Bohne, 169 Mo. 1. c. 551-2, are some observations in point. In that ease no exceptions were filed to the commissioners’ report and after the time for filing the same had expired, the court took up the case and made the final order (p. 550’), precisely as it did in this case, so far as Webb is concerned. In that condition of things, Valltant, J., speaking for this division of the court, said:

“But when private property rights are threatened it is the duty of the owner to avail himself of the process of law for Ins protection, and if he stands by and allows a court in the exercise of its rightful jurisdiction to decide questions of law or of fact contrary to the correct interpretation of the one or to the weight of the evidence as to the other, and neglects the means at hand to correct the error he cannot afterwards treat the whole proceedings of the court as a nullity.” .

(3) In the next place, Howell being in nowise to blame for the absence of Webb in the county court or in the circuit court, how comes it he stands to be punished for what did not concern him? Counsel appearing for the county on this appeal, and raising the point for the first time, were not its trial attorneys in the circuit or county court. Evidently those trial attorneys concluded, when the commissioners found Webb was not damaged, that the next move was up to him under the statutory plan of opening roads. They furtlier concluded, since lie made no move, that silence showed consent and that the finding of the commissioners became conclusive on him, hence their client, the county, was in no .danger of being mulcted thereafter in damag’es for the appropriation of his land. There is no escape from this conclusion, because, being learned in the law, they permitted the judgment of the county court to go establishing and opening the road. Having done that, does it lie in the month of the county at this late day, when new hands have come to the bellows, to face about and change its view on that question on appeal to this court?

Moreover, if learned counsel now appearing for the county are right in their contention, then the county has the road without paying Webb’s damages. If, peradventure, the conscience of the county be pricked in that behalf, a ready remedy is at its door. It can ease its conscience by paying them at any time without our meddling with Howell’s judgment for his separate damages, inasmuch as a reversal will not pay Webb. If, as we fear is the case, it is not conscience, but supposed danger from that angle that is behind the point and puts life and mettle into its heels, then, how will that danger be lessened by reversing Howell’s judgment? Will reversal here parry the menace? Can the county make Webb interpose, or does it want to make Webb come into the circuit court on Howell’s appeal, willy nilly, and claim his own separate damages ? Or, absent Webb, are his damages to be awarded him without his having a fing’er in the pie, a day in court? All those things, we opine, would be new wrinkies in road litigation for which there are no precedents known to us. If he was a bold man who first ate an oyster, as Swift tells, what should we say of a court that added new terrors to road litigation?

(4) Finally, no such point was made below during the trial, or in the motion for a new trial. The circuit court ruled on no such question; ergo we may not. Attend to the lawmaker’s mandate in that behalf: “No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.” [R. S. 1909, sec. 2081.]

II. Of the failure of the circuit court to find jurisdictional facts and to incorporate an order establishing the'road in the judgment.

Although appellant has its road in full and undisputed possession, yet it suggests that it ought not to pay Howell’s damages because it fears its title to the road is bad for that the judgment in the circuit court is a straight award of money damages and makes no finding of jurisdictional facts and does not in terms establish a public road.' Is that assignment of error well taken? Decidedly not, because:

(1) In the first place, it cannot be contended that the circuit court has no jurisdiction at all in the premises. It must be conceded it had jurisdiction to try the issue of damages and enter judgment thereon. If, now, it also had jurisdiction on Howell’s appeal, as appellant contends, to find jurisdictional facts upon which a road could be established and had jurisdiction to establish the road, its jurisdiction to do those additional things would depend on the form of the appeal, as pointed out in the former paragraph and as ordained in Revised Statutes 1909, section 10440, supra. That section provides for two kinds of appeals — one from the damages, the other from the order establishing the road. Let us also concede, only pro hac vice, that Howell’s appeal brought up to the circuit court the issues of establishing and opening a road (i. e., the question of road or no road) and for the same turn let it be admitted it was error to make no finding on those issues. With such concessions, made by way of argument, the questions obtrude at once: Was there any exception taken below? Was the question raised to be ruled nisil Tire answer must be, no. This appellant as the record shows got all it wanted from the court below on those scores. Howell was not opposing the road, nor was he seeking to establish the road. Fie was asking damages for the actual appropriation of his land. That was the sole issue interesting him. In that view of it, the burden was on appellant to show these jurisdictional facts, if on any one. This burden appellant lightly cast off. Moreover, when the judgment was rendered did appellant file a motion in arrest because on the whole record the judgment, was erroneous as not responsive to the issues? No. Contra, it rested content with the form of the judgment, took its exception on other questions and raises the point in hand for the first time in this court. If the question here was whether the circuit court had jurisdiction to render any judgment at all, we would have a question of different quality; but unless we are to rule that a motion in arrest no longer serves any purpose in practice whatever, we must hold one was necessary in this case. [Murphy v. Railroad, 228 Mo. l. c. 85; Stid v. Railroad, 211 Mo. 411, and cases cited; vide, State ex rel. v. Fisher, 230 Mo. 325, arguendo.] And that its absence is fatal to the point.

(2) In the next place, if it be conceded that no motion in arrest was necessary to preserve the point, yet on this record we are forbidden by the statute to reverse the judgment on the point. This is so because the circuit court did not rule on any such question, and, absent its decision, we can make none. [Vide the statute quoted supra, R. S. 1909, sec. 2081.]

(3) In the next place, this record shows conclusively that no appeal was taken on the issue of road or no road but only on the issue of damages. [Bennett v. Woody, 137 Mo. 377.] Therefore the judgment of the county court establishing and opening the road was in no sense drawn in question or put in jeopardy by the appeal, but was left behind a final, operative, self-enforcing judgment, free from the vicissitudes of the event of the appeal and not a whit depending on the circuit court’s finding jurisdictional facts on which the location of a public road depends. Why should the circuit court go out of its way to do over again, by a side stroke, what had already been well and finally done, in the county court? The maxim is: A court has nothing to do with what is not before it.

Moreover, not. only was such the trial theory and therefore the preclusive theory on appeal, according to the settled doctrine of this court, but the affidavit for appeal clearly shows, when fairly read, that the appeal was taken only from the verdict and judgment for damages and costs. - That the word “merits” was used in the affidavit of appeal is due to the statutory relation between appeals from justices ’ courts and from county court, and the context shows the merits meant were those on the issue of damages. It results that when the county court found the road was of sufficient public utility to warrant its establishment and opening at the expense of the county and (closer home) when it went on and opened it and took possession and when (still closer home) Howell’s appeal did not bring up the issues of road or no road, but only that of his damages — we say, when all these things'happened, as they did, then the county by its own election became irrevocably bound to pay the damages whenever they were set at rest by being legally awarded by an adjudication on his appeal. [Forsyth v. Heege, 61 Mo. App. 277.] The point is disallowed to appellant as without substance.

III. Of instruction A.

With foregoing questions at rest, we confront the main contention in the case, viz., that instruction A overlapped on the elements of damage and permitted recovery for the cost of fencing as a separate and specific item. We are of opinion this assignment is well laid, because:

(1) While a strained construction of the language of an instruction is not a sensible device for administering justice-, neither is a loose or illogical construction. As put by Professor Gray: “A loose vocabulary is the fruitful mother of evils; ’ ’ and, we may add that a loose construction of loose language is the nursing father of many more. Giving the language of the instruction a sensible interpretation, it is plain that the jury were told to consider the cost of building the necessary fences along the road and the damage to the whole tract of land of which that taken for the road forms a part, and they were told that from the “sum” of these, together with the value -of the land taken, they were to deduct the benefits, if any, peculiar, etc. That meaning is a fair and legitimate -one-, nay, the only one shining on the very face of the instruction itself. There can be no two ways about that. If now, it be the law (as we shall presently see it is), that necessary fencing is an element, to be sure, but is only an integral element of the damages to the land, and sub-' merges itself into such damages, then the instruction was erroneous; for the jury under instruction A would assess as damages (1) the value of the land taken and improvements, (2) next, the cost of building the necessary fence, (3) next, the damage, if any, to the whole tract by reason of the road running through it, and would add one item to the other, thereby making a “sum,” and from that sum it would deduct the benefits peculiar to the tract, etc.

The general rule- for assessing damages for taking lands for a public highway and railroads is not in doubt. It is (put in small comp-ass) the value of the land taken and the damage, if any, to the tract of which it forms a part, from which must be deducted the benefits, if any, peculiar to such tract arising from establishing the road. [McReynolds v. Railroad, 110 Mo. l. c. 487 et seq.; Bennett v. Woody, 137 Mo. l. c. 383; McElroy v. Air Line, 172 Mo. l. c. 555.] Cases may be found where the jury have been .told that in estimating those damages they may take into consideration this or that item, for example, fencing, when that is necessary to be done by the landowner, and respondent cites us to a case in the Court of Appeals, Galbraith v. Prentice, 109 Mo. App. 498, claimed to sustain the instruction, but in that case the jury were told what elements to take into consideration. They were not told as here to add the fencing to the value of the land taken “and” to the damage to the land.

We are convinced that the cost of fencing when necessary is but one of the elements that go to swell the owner’s damage to the land, and which latter, when added to the land actually appropriated, make the total of his damage to be diminished by peculiar benefits, if any. There is no controlling pronouncement in any of our cases to the contrary, and the well reasoned cases elsewhere seem to so hold.

The right doctrine is announced by Lewis (2 Lewis on Eminent Domain [3 Ed.], sec. 741), thus:

“Where, by taking a part of a tract, additional fencing will be rendered necessary in order to the reasonable use and enjoyment of the remainder, as it probably will be used in the future, and the burden of constructing such additional fence is cast upon the owner of the land; then the burden of constructing and maintaining such fence in so far as it depreciates the value of the land, is a proper element to be considered in estimating the damages. In some of the cases cited an allowance was made for the cost of fencing as a specific item, and the language of many of the decisions seems to warrant the same view. But this is clearly not correct, unless such an allowance is required by the statute under which the proceedings are had. It is a question of damage to the land, as land. If, in view of the probable future use of' the land, additional fencing will be necessary, of which the jury or commissioners are to judge, and the owner must construct the fence if he has it, then the land is depreciated in proportion to the expense of constructing and maintaining such fencing. Nothing can be allowed for fence, as fence. The allowance should be for the depreciation of the land in consequence of the burden thus cast upon it. Evidence of the cost of suitable fencing is competent as affording a means of arriving at the extent of the burden. Where by statute a railroad is bound to fence its right of way, no allowance can be made to the owner for that purpose.”

The testimony was put in in a way to stress the error. Some of the witnesses testified to the damage from the depreciation in value of the farm as a farm by running the road through it and cutting off sixty acres, giving figures. Some testified to the same thing and then, as an additional item, were asked about the cost of fencing; so that when the testimony was in and the erroneous instruction was listened to by the jury, it is plain from the amount of damages they' returned that it was built up precisely as the instruction directed.

(2) But the situation is such that this erroneous instruction ought not to reverse the judgment and necessarily remand for a new trial. This is so because: All the witnesses, testifying to the cost of the fence, agree on the cost, putting it at $338.66. Deducting that sum from the judgment amount, we have left $961.34, as a good round judgment for respondent and all the testimony will support.

Where the verdict is swollen by a definitely ascertained and segregated erroneous amount, as here, the false item may be pinched out, eliminated by excision, under the reasoning of our cases, by requiring a remittitur. The right of judicial excision of such an item was the underlying groundwork of our present doctrine of remittitur which has gone, in its later developments, far beyond that.

If, therefore, respondent within ten days will enter a remittitur of $338.66, his judgment will be affirmed for $961.34, to bear interest from the date of its rendition. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

All concur.