source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. TITUS et al. v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    July 13, 1907.
    1. MANDAMUS: Parties. Citizens and taxpayers of a city are proper parties to bring and maintain mandamus, in the name of tbe State, to compel a railroad company to restore a public street "which it has appropriated to its own use.
    2. PUBLIC STREET: Railroad: Condition in Statute. The condition contained in the statute authorizing a railroad company to construct its track in a public street or highway, that “the company shall restore the street or highway to its former state or to such state as not unnecessarily to impair its usefulness,” is not a condition subsequent, but is a condition that runs with the grant. The statute means that, if the character of the street is such that the company’s tracks cannot be laid therein with- ■ out hindering and preventing the public from using it as a highway, then, no matter how important to the company the laying of its track therein may be, it cannot be done.
    3. -: -: City’s Permission. It is not competent for a city to authorize a railroad company to so use a street as to destroy it as a thoroughfare for public use. .
    4. -: -: Trespasser: Subsequent Consent. The laying of a railway track in a public street or the operation of a railroad therein without the city’s consent, made the company a trespasser. But after it obtained such consent its occupancy of the street became lawful, provided it thereafter restored the street to its former state as a public highway, but if it did not do that it may by mandamus be compelled to do so.
    5. -: -: Knowledge. A railroad company which buys a railway track already constructed in a public street is bound to know that the city could not grant its predecessor the exclusive use of the street.

      Appeal from Clay Circuit Court. — Hon. J. W. Alexander, Judge.
    Arfermed.

      J. L. Minnis and D. G. Allen for appellant.
    (1) It is a well-settled rule that the principle» of interpretation, and the rules of construction, are the same, whether' the instrument he a constitution, a statute, a deed, a grant, a covenant or a contract. Story on the Const. (5 Ed.), secs. 451, 401; Potter’s Dwarris, pp. 47, 175, 182; End. Interp. Stats., secs. 1,. 2, 8, 258, 295. In view of the authorities above cited, and all authorities on the interpretation of statutes, it is evident that the relators are altogether too-narrow in their construction of section 2543, Revised Statutes 1889, and that they have excluded what must have been the intention of the legislators. The legislators could not have contemplated that their grant of power to the Excelsior Springs Railroad Co. to construct its road over and along the avenues, streets and highways of a city or town, should be a grant made in vain; but it must be assumed that the exercise of power granted the Excelsior Springs Railroad Co. drew after it all necessary consequences, and such consequences the law contemplated and sanctions. (2) Under the facts in this case, it is manifest that after the railroad track was laid on Dunbar avenue, that avenue could not have been, nor can it be now, restored to its former state, nor to such state as not unnecessarily to impair its usefulness, and under the authorities, such a consequence must have been within the intent and meaning of the statute. The necessity of the case drew with it all necessary consequences. It was necessary to impair the usefulness, — for the public good, — of Dunbar avenue, and it was not impaired unnecessarily. The clause has a grant and a condition. There could be no such thing as restoration until after construction. The condition, therefore, annexed to the grant, is a condition subsequent. It is, therefore, a void condition, because it is impossible. By all of the authorities, an impossible, subsequent condition is void, and the right passes, uncontrolled, under the grant. 2 Black. Com., 156; 2 Kent’s Com., p. 146; Peyton v. Bury, 2 P. Wins. 626; Graydon v. Hicks, 2 Atk. 16; Cary v. Bertie, 2 Vernon 333, 2 Wash. Real Prop. (5 Ed.), sec. 6; 1 Shep. Touchstone (7 Ed), p. 133; End. Interp. Stats., sec. 441; Potter’s Dwarris, p. 75; 1 Preston on Estates, p. 476. But the whole principle that impossible conditions are void in law is derived from the jurisprudence of the Romans. Its equity and justice have, therefore, appealed to, and been sustained by, all the legal thinkers of Europe and! America. For instance: Gaius says: “An impossible condition, that the promisee, for instance, should touch the sky, makes the stipulation void, although a devise with an impossible condition, according to the authorities of my school, has the same effect as if the condition were not annexed. So, a stipulation to convey the promisee’s property to the promisee, is null and void, for the conveyance is impossible.” Poste’s Gaius, book 3, secs. 98, 99, p. 380. Says Justinian: “An impossible condition in the institution of heirs, gift of legacies, creation of fidei commissa, and gifts of freedom, is considered not inserted at all.” Sandars’ Justinian, sec. 10, p. 269; and sec. 11, p. 427. The conclusion, therefore, is irresistible, that the condition of restoration annexed to the grant of right of way, in section 2543, Revised Statutes 1889, being impossible, in this case, is void.

      Harris L. Moore and Scmduslcy S Sandusky for respondents.
    (1) Under section 2543, Revised Statutes 1889, it was the duty of appellant to restore Dunbár avenue “to its former state, or to such state as not unnecessarily to have impaired its usefulness.” R. S. 1889, sec. 2543. (2) The practice and law governing this class of cases is stated fully and clearly in State ex rel. v. Railroad, 86 Mo. 13; Dubach v. Railroad, 89 Mo. 483; State ex rel. v. Public Schools, 134 Mo. 304; State ex rel. v. School Board, 131 Mo. 514. (3) Relators were citizens and taxpayers of Excelsior Springs enforcing a public duty. State ex rel. v. Railroad, supra. (4) The judgment merely enjoins upon appellant its statutory duty. (5) “If the character of a street should be such that defendant’s track could not be laid upon the street without hindering the public from using it, then no matter how important to the company that its track should be laid in that street, it could not be done, — nor is it competent for a city to authorize such use of a street dedicated as a street as will destroy it as a thoroughfare for the public use.” Dubach v. Railroad, 89 Mo. 488; State ex rel. v. Murphy, 134 Mo. 562; Brown v. Railroad, 137 Mo. 536; Corby v. Railroad, 150 Mo. 465.
   GRAVES, J.

Relators are citizens and tax-payers of the city of Excelsior Springs, a city of the fourth class in Clay county, Missouri. The action is one of mandamus, instituted May 8, 1903, to compel defendant, the owner and operator of a line of railroad in and upon Dunbar avenue, a public street of said city, “to restore said Dunbar avenue to as good condition as it was before its tracks were laid thereon, or to such condition as not to unnecessarily impair its usefulness and for such other orders and judgments in the premises as may be just.” The basis of the action is section 1035, Revised Statutes 1899. The part peculiarity applicable to a railroad corporation which constructs and maintains its road in a public street, is as follows:

“Fourth., to construct its road across, along or upon any streams of water, watercourse, street, highway, plank road, turnpike or canal which the route of its road shall intersect or touch, but the company shall restore the stream, watercourse, street, highway, plank road and turnpike thus intersected or touched b^ its former state, or to such. state as not unnecessarily to have impaired its usefulness.”

Excelsior Springs was incorporated as a city of the fourth class in 1881, and at the institution of the present action had a population of twenty-five hundred inhabitants. Under the evidence it is purely a health and pleasure resort, and is visited by people from all sections of the country. Forest Park, an addition to said city, was platted in 1887, and St. Paul, an addition which lies north of Forest Park, was platted in 1889. Both additions were laid out and platted by the Excelsior Springs Company, a corporation. The streets, avenues and alleys were dedicated to the public. Dunbar avenue runs through these additions or a portion thereof. The dedication of the streets, avenues and alleys in Forest Park contained a reservation, in this language: “All streets, avenues and alleys as represented on the above plat are hereby dedicated to public use forever, saving and except, however, the exclusive right of way for street railways, which right of way is hereby expressly reserved by and to the undersigned proprietor, its successors, and assigns.”

The course of Dunbar avenue is from south to north, but by irregular meand'erings and curves. Its southern end is a street called Concourse and its northern termination is at Kimball avenue.

Dunbar avenue was graded and made a roadway by the Excelsior Springs Company prior to the platting of the additions. The city paid no part of the cost thereof. In 1886, the Chicago, Milwaukee & St. Paul railway was built to Excelsior Springs and its depot located about a mile from the city proper, the direction being west of north. This roadway, now Dunbar avenue, was constructed as a road to said depot. It followed the meanderings of the hill and was and is a very steep grade. The portion thus graded was twenty-five to thirty feet wide, but when platted as Dunbar avenue, it was given the uniform width of sixty feet. Prior to 1891, a corporation known as “The Excelsior Springs Railroad Co.” was chartered to construct a standard gauge railroad from a point on the Wabash railroad three miles east of Missouri City, to Excelsior Springs, and through said city to a junction with the Chicago, Milwaukee & St. Paul railroad. This company first built its line south to the Wabash railroad and established its depot near the south end of Dunbar avenue. In 1891, it built, from its depot in Excelsior Springs, its road over and through Dunbar avenue and other streets and avenues, a distance of a mile, to the Chicago, Milwaukee & St. Paul depot. In doing so the ties were placed in the ground and the rails spiked thereto. Spaces between the ties were filled in with dirt, rock and gravel, so that to this extent the railroad is above the grade of the street. Owing to the steep grade and contour of the street, the railroad of necessity curved and ran from one side of the street to the other. The road for this mile is of standard gauge, but owing to the extreme grade and curvature of the line cannot be operated with standard engines and ears, but is operated with what is called a dummy engine and short, light passenger coaches, the engine pushing the cars up from the Wabash depot to the Milwaukee depot and pulling them back to the Wabash depot, so as to always have the engine on the south end of the train. By ordinance passed by the board of aldermen of said city, December 13, 1894, the route of the Excelsior Springs railroad was established as it now is and as it had beenpreviously constructed, some three years before, and by said ordinance the Excelsior Springs Eailroad Company was given the right “to lay out, locate, construct, maintain and operate a standard gauge railroad upon, along, ■over and across the following streets and avenues of the city of Excelsior Springs, to-wit.” The streets named are the same ones used by the railroad-now and used by it when constructed in 1891, three years prior to the ordinance. This ordinance was evidently passed to meet the requirements of section 1035', Eevised Statutes 1899, then section 2543, ■ Eevised Statutes 1889. The section required the assent of the city before the construction of the road, but none appears to have been given until the passage of this ordinance.

The defendant in this case became the Owner of the property of the Excelsior Springs Eailroad Company, sometime between 1896 and 1901, not clear to us from the record, and has greatly improved the conditions both as to the roadbed and the accommodations,, but has in no wise changed the grade of the roadbed in Dunbar avenue. Prom the evidence it appears that a great many passengers and quite a quantity of freight are annually hauled over this mile of track between the two depots. It also appears that with the exception of a few property-owners in Forest Park, who wanted damages, there was no objection to the construction of this railroad in 1891, and that this defendant knew of no objections at the time of its purchase and learned of none until about the time of the institution of this suit, although it was improving the property and had expended on the whole line (ten miles) some thirty thousand dollars. Since the construction of this mile of railroad, in the course of which a bridge was necessary at one place, it is conclusively shown, Dunbar avenue has been in a condition wholly unfit for travel. In fact, the return of defendant practically admits this condition of affairs. On the other hand it appears that it would be impracticable to so construct the roadbed of the railroad as to preserve the street for use, and that this route is the most practicable route between the two depots, both for the city and the railroad company. When asked if the ties could not be sunk below the level of the street surface, and thus preserve the street, witnesses, for defendant said that owing to the grade and curvature of the road, and the washing of dirt and drifting of snow, this would be impracticable and dangerous.

Judgment was for relators in this language r “Whereupon, it is by the court considered and adjudged that a writ of peremptory mandamus be issued to said respondent, directing, said Wabash Railroad Company to restore Dunbar avenue mentioned in the petition herein, to as good condition as it was before its. tracks were laid thereon, or to such-condition as not to, unnecessarily impair its usefulness; and that said relators recover of respondent their costs and charges in this behalf expended and have thereof execution. ’?

Being unsuccessful in its motion for new trial, defendant duly perfected its appeal to this court.

I. Relators are citizens and taxpayers of the city of Excelsior Springs, so alleged to be in the petition for the writ of mandamus and as shown by the evidence. The alleged failure of the defendant is a failure to perform a duty which it owed to the public. Whatever may be the rule elsewhere, it- is well established in this State that they are proper parties to bring and maintain this action. [State ex rel. v. School Board, 131 Mo. l. c. 514; State ex rel. v. Railroad, 86 Mo. 13; State ex rel. v. Francis, 95 Mo. 44.] This proposition, however, does not seem to be seriously disputed by defendant.

II. This is an extremely harsh case in which to call for a construction of that clause of section 1035, Revised Statutes 1899, herein above quoted in our statement. No assent was given by the city for the construction of the railroad until some three years after its construction; its construction seems to have been the result of a popular demand, with a little opposition by some few property-owners along the thoroughfare, which was to be practically confiscated; the city is in no sense a commercial or manufacturing city, but solely a pleasure and health resort ;■ to have taken any other route would have seriously marred the peculiar beauty of the city’s surrounding natural scenery; the road as constructed and operated .accommodates thousands of the temporary inhabitants, of the city, in the way of giving them prompt and ready ingress and egress to two main trunk lines of railway; freight from one line is brought down an exceedingly steep-grade to a point witlfin easy access of the main portion of the city; more than nine years after the ordinance of 1894, •' containing the assent of the city and practically- ratifying the construction of the railroad, the city-for the first time, by resolution, demands the restoration of Dunbar avenue, and during this time, the defendant, without knowledge of any discontent and objection, either upon the part of the city or the citizens, purchases the property and has expended much money thereon. The city is not a party to the action, but by its resolution of March 26-, 1903, in which it demands the restoration of the street, is seemingly acting in concert with the relators, none of whom acquired property rights in the western part of the city prior to 1895, and most of whom acquired' such rights after January 1, 1903.

Further, upon the one hand, Dunbar avenue, as a public street, is practically destroyed, and upon ¡the other it is impracticable to maintain the railroad and at the same time restore the street to its former condition, or a condition for public use. So that, we repeat, we have here an extremely harsh case for the construction of the section of statute before us, upon which construction must depend the result of this case.

Defendant contends that, inasmuch as the State by this section has granted railroad corporations the right to construct their roads upon and over streets and highways, the subsequent part of the clause quoted, requiring them to restore the street or highway, is a condition subsequent, and if that condition is impossible, then it is void. Learned counsel in discussing this clause, put their contention in this language: “The clause copied has a grant and a condition. There could be no such thing as restoration until after construction. The condition, therefore, annexed to the grant, is a condition subsequent. It is therefore, a void condition, because it is impossible. By all of the authorities, an impossible, subsequent condition is void, and the right passes, uncontrolled, under the grant.”

They then insist upon a liberal construction of the statute. If it were a question of first expression in this State, as counsel seem to insist, then a closer scrutiny of the law might be required. But our court has heretofore considered this question, and whilst the cases wherein it was considered do not possess the har-shness of the case at bar, we can see no reason from departing from our former rulings, and thereby overrating a line of cases, and we accordingly adhere to the doctrine of these cases, which cases are as follows:' State ex rel. v. Railroad, 86 Mo. 13; Dubach v. Railroad, 89 Mo. 483; Brown v. Railroad, 137 Mo. 529; State ex rel. v. Murphy, 134 Mo. l. c. 562; Knapp, Stout & Co. v. Railroad, 126 Mo. l. c. 37; Corby v. Railroad, 150 Mo. 457, and cases therein cited and reviewed.

In the Dubach case, supra, this court, through Henry, C. J., said: “It is true that it is settled law in this State that laying a railroad track in a street may be authorized by the Legislature. [Porter v. Railroad, 33 Mo. 128; Tate v. Railroad, 64 Mo. 158.] But it must be done in the manner authorized. And the authority by which the defendant undertook to change the location of its side track required it ‘to be so constructed as not to hinder or prevent the public from using the street.7 If the character of a street should be such that defendant’s track could not be laid upon the street without hindering the public from using it, then no matter how important to the company that its track should be laid in that street, it could not be done. Nor is it competent for a city to authorize such use of a street dedicated as a street as will destroy it as a thoroughfare for the public use. [Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 124.]”

In discussing the section now under consideration in the Brown case, supra, we said’: “But the statute gives railroad corporations the right to construct and maintain their roads across and along the public streets of cities, the assent of the municipal authorities being first obtained (B. S. 1889’, sec. 2543), and cities of the second class, to which St. Joseph belongs, are authorized to direct and control the construction of railroads in their streets and alleys, and to require them to be so constructed and laid as to interfere as little as possible with ordinary travel and use. [B. S. 1889, sec. 1255, sub-div. 26.] The exercise of the rights and powers thus conferred has received the approval of this court in many cases. [Knapp, Stout & Co. v. Railroad, 126 Mo. 35; Lockwood v. Railroad, 122 Mo. 88, and cases cited in each.] It is true the power of municipal authorities to grant to a railroad company the right to lay its tracks along the street of the city is not absolute. They cannot do so if the operation of the railroad will destroy the use of the street as a pub-lie thoroughfare. [Knapp, Stout & Co. v. Railroad, supra; Lockwood v. Railroad, supra; Dubach v. Railroad, 89 Mo. 483.] ”

■ In the Murphy case, supra, we said; “The power to' regulate the use of streets refers to legitimate public uses not inconsistent with the ordinary and paramount use for travel thereon, or with the private rights of abutting property-owners. An ordinance having the effect of diverting the streets from a public to a private use, or of unreasonably appropriating them •to a public use other than that of ordinary travel by pedestrians and vehicles, is ultra vires and void.’ ’

Further, in the Knapp, Stout & Co. case, supra, after a review of the authorities, we said: “Taking these cases all in all, it is very clear a municipal corporation has no power to grant to a railroad com-. pany such use of a street as will destroy its usefulness as a public thoroughfare, or destroy or unreasonably interfere with the right of an abutting property-holder,. to access to and from his property. Though the city gave its assent to the construction of this railroad track, still the defendant was bound to construct and use the track with due regard to the rights of the public and adjacent property-owners. The defendant has no greater rights than others, for in the use of the street it is but one of the public, and must conduct and operate its track accordingly.”

We spoke thus, in the Corby case, 150 Mo. l. c. 469: “ The sum of it all is that the public cannot grant to any one exclusive rights in a public highway, nor can it authorize any one to use the whole or any part thereof in such a manner as to unreasonably interfere with its use by the other members of the public or with the right of access of the abutting owners to their property.”

So that we conclude that whilst the law permits a railroad to enter upon a public highway, it is a conditional grant, i. e., the company, “shall restore . . . highway ... to its former state, or to such state as not unnecessarily to have, impaired its usefulness,” and if the highway is such as will not enable the company to substantially perform the condition imposed, it can not enter, and the municipal authority can not grant authority for it to so enter and remain.

III. Prior to the ordinance of 1894, the railway company then operating the railroad in Dunbar avenue, was a trespasser and no more. No assent of the city had been obtained. After this ordinance it changed from a mere trespasser to a lawful occupant, provided it met the conditions prescribed by the law as found in section 1035, supra. This the original company never did, nor has its successor, the defendant, in this action. Defendant purchased with a knowledge of the requirements of the law, and with a knowledge of the then apparent conditions of the street. What money it has expended has been under these circumstances. It was bound, in law, to know that the city ■could not have granted its predecessor the exclusive use of this street. Nor do we think there are any serious elements of estoppel in the case. In fact, counsel have not urged the question. Upon reconsideration the defendant may find that it can comply with the judgment of the trial court, and so reconstruct its road and Dunbar avenue as to permit the use thereof, both by the public and itself. But, however this may be, the judgment is right, and it is therefore affirmed.

All concur.


author: WOODSON, J.

text:
    JOHN C. KING et al., Appellants, v. MAGGIE GILSON et al.
    Division One,
    July 13, 1907.
    1. WILL CONTEST: Evidence in Rebuttal. Plaintiffs (proponents), in a will contest, should not be permitted to introduce matters in chief after defendants have rested their case. Their evidence in rebuttal should be confined to the new matters, brought out by the defendants’ evidence. But admitting the evidence out of order may not be prejudicial. [Per Woodson,, J.]
    2. -: Hypothetical Question: Left to Decide Fact. The expert should not be required to decide for himself which of' two witnesses testified to the truth regarding the testatrix’s loss of memory, and, hence, these words found in the hypothetical question, namely: “Although it is charged by one witness for the defendant that at an interview in the fall of 1893,. or early in 1894, she repeated a short story twice or perhaps three times during the course of a half hour when they were conversing on general topics/ which statement is denied by another unimpeached witness of high official standing in this city,” were improper. The assumed facts should be stated as facts, so that the jury may consider or reject the opinion of the expert, accordingly as they find the assumed facts to be true or false.
    3. NEW TRIAL: Newly-Discovered Evidence. The newly-disCovered evidence should be set out in the motion for new trial, or it will not avail. The movent cannot state in the motion that he has discovered material evidence which would produce a different result on a retrial, and depend on affidavits to be subsequently filed to reveal what that- evidence is.
    4. -: -; Diligence. Where the affidavit states that. affiant testified in the probate court, when the will was there-presented for probate, the same things set forth in the affidavit filed in support of a motion for a new trial of the case-subsequently brought in the circuit court, asking to have the-same will admitted to probate, the affidavit itself shows a lack, of proper diligence to obtain affiant’s testimony at the trial.
    Appeal from St. Louis City Circuit Court. — How. Jesse A. McDonald, Judge.
    Affirmed.

      Kinealy & Kinealy with John M. Wood and B. L. McLaran for appellants.
    (1) There is no evidence to sustain a verdict against the will of Mrs. Lack of September 13, 1893. Story v. Story, 188 Mo. 110; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindeman, 153 Mo. 286; Cash v. Lust, 142 Mo. 639; Yon de Yeld v. Judy, 143 Mo. 363. (2) There being no substantial evidence to sustain a verdict against the will, it is immaterial whether or not any error was committed on the trial against defendant. Story v. Story, 188 Mo. 129'. (3) The will is a reasonable one and is itself a strong proof that Mrs. Lack was then of sound and disposing mind. Gay v. Gillilan, 92 Mo. 264; 1 Wharton & Stille, Med. Jur. (5 Ed'.) , sec. 997. (4) Defendants in their hypothetical question to Dr. Runge admit the proof of facts, on the trial, from which the legal conclusion is that Mrs. Lack was of sound and disposing mind and memory when she made the will. (5) There is no error in the hypothetical question propounded by plaintiffs to the medical expert. Riley v. Sherwood, 144 Mo. 354; Century Dictionary, “Although”; Rogers on Expert Testimony, sec. 31 p. 74; State v. Morley, 102 Mo. 386. (61 The motion of plaintiffs for a new trial, so far as it was based on the discovery of alleged new evidence, was not before the court or made in accordance with the law of this State so that it could be considered or sustained. State v. David, 159' Mo. 535; Railroad v. Mirrilees, 182 Mo. 145; State v. Welsor, 117 Mo. 582.

      Isaac H. Orr, Jones, Jones & Uocher and Wm. H. é Davis Biggs for respondents.
    (1) (a) The question as to whether there is evidence to sustain a verdict against the will has been decided by this court on the former appeal of this case, to the effect that there was ample evidence on which to put the case to the jury. King v. Gilson, 191 Mo. 327. (b) The records on both appeals being the same, the law of the case as declared on the former appeal is conclusive on this point. Taussig v. Railroad, 186 Mo. 269; May v. Crawford, 150 Mo. 223; Giordan v. Burris, 153 Mo. 223; Carey v. West, 165 Mo. 455; State v. Spencer, 166 Mo. 274: (c) Outside of the point being settled by the opinion of this court, there is ample evidence against the validity of the, will of 1893. Roberts v. Bartlett, 190 Mo. 680. (2) The hypothetical question asked appellants’ experts in rebuttal was clearly erroneous in this: (a) it was not proper in rebuttal; (b) the question permitted the expert to pass upon and determine a controversy as to the facts, to' himself determine what were the facts; (c) the question contained matters wholly immaterial to the question which the expert was called upon to answer or submitted a question of fact to the expert and embraced immaterial matter for his consideration; (d) the question states a material fact as testified to by one witness, which fact the question- sets forth is ‘‘ denied by another unimpeached witness, of high official standing in this city.” Russ v. Railroad, 112 Mo. 49; Hicks v. Railroad, 124 Mo. 125; Railroad v. Falvey, 104 Ind. 421; Williams v. State, 64 Md. 394. (3) The newly-discovered evidence was properly before the court. It came to the knowledge of defendants after the trial; it was not owing to a lack of due diligence that it did not come sooner; it is so material that it would probably produce a different result on a retrial; it is not cumulative and the affidavit of the witness is produced. State v. Speritus, 191 Mo. 41; State v. Sublett, 191 Mo. 175; State v. Cummings, 189' Mo. 646; State v. Murray, 91 Mo. 95; State v. Bailey, 94 Mo. 316; State v. McKenzie, 177 Mo. 699; State v. Carpenter, 182 Mo. 53; Devoy v. Railroad, 192 Mo. 197. The granting of a new trial on the ground of newly-discovered evidence rests in the sound discretion of the trial court. Ins. Co. v. Curran, 45 Mo. 142; Coleman v. Cole, 96 Mo. App’. 22.
   WOODSON, J.

TMs is the second time this case has been appealed to this court. The first trial resulted in a verdict and judgment against the validity of the will, and upon appeal to this court the judgment was reversed and remanded for a new trial. The case is reported in the 191 Mo. 307, where the main facts are set out in full, and for that reason will not be restated here.

The cause was retried in the circuit court of the city of St. Louis, and the verdict of the jury sustained the validity of ,the will. In due time the defendants filed their motion for a new trial, which was, by the court, sustained, to which action of the court the plaintiffs duly excepted, and have appealed the cause to this court.

The facts disclosed by this record do not differ materially from what they were when the case was here on the former appeal, except some additional facts, which will be found in the course of this opinion.

I. It may not be out of place to state that the will in controversy is dated September 13, 1893, and the testatrix departed this life on July 26, 1899.

The will was first presented to the probate court of the city of St. Louis for probate, and, after a full hearing, it was rejected, and shortly thereafter this suit was instituted in the circuit court of that city, asking to have the will admitted to probate.

The validity of the will was assailed upon two grounds:

First: Because its execution was procured by fraud and undue influence exercised over the mind of the testatrix; and

Second: Because the testatrix was, at the time of its execution, of unsound mind and disposing memory, and was on that account incapable of making a will.

The plaintiffs introduced evidence which made out a prima-facie case. The defendants then introduced evidence tending to prove undue influence and the unsoundness of the mind and memory of the testatrix; then the plaintiffs introduced evidence tending to contradict and rebut defendants’ evidence.

Both parties asked many instructions, and the court selected certain ones from each list asked and gave them and refused the remaining'. Those given correctly and fairly presented the law of the case to the jury; and no question is raised in this court as to the correctness of the court’s action and ruling in giving and refusing instructions.

The plaintiffs ’ contention is, that the ruling of the court in permitting certain hypothetical questions hereafter mentioned to be asked, and the admission of' the answers thereto in evidence, was proper and legal; and that the action of the court in sustaining the motion for a new trial, because of the admission of that evidence, was erroneous. While upon the other hand, the defendants insist that the action of the court in that regard was erroneous, and consequently its ruling in sustaining the motion for a new trial was proper.

We will dispose of those two propositions in the order stated.

It will simplify matters to here state that there were three or four expert witnesses who testified on behalf of plaintiffs in rebuttal, and there were from one to three hypothetical questions propounded to each along the lines of the one hereinafter set forth. All of these questions are assailed by the defendants. It will serve no good purpose to copy all of them nor to discuss them separately, because the objections lodged against each are substantially the same, and the ruling upon one -will apply equally well to all, as the same rule of evidence underlies all of them.

One of the hypothetical questions mentioned and the answer thereto admitted in evidence, over the objections of defendants, and the one we will consider, is as follows:

“Dr. Hughes:

“Q. Doctor, I will ask you another hypothetical question: Assuming the following facts are true, that the testatrix, Mrs. Emilie Lack, was a widow and executed^ will on September 13, 1893, at the age of seventy-four years, in which the beneficiaries were her heirs-at-law, all persons of her own blood, and in which she excluded from its benefits three of her nephews, being the brothers G-us A. B. Brecht, Charles Brecht and Frank Brecht, alleging as a reason therefor that they had ill treated her and that Gus A. V. Brecht had defrauded her out of her property; that it was in evidence that she had lived with those brothers nearly from her husband’s death to about fourteen months previous to the date of the will above mentioned; that Gus A. V. Brecht did previously and while she was living with him defraud her out of her property of the value of about twenty-three thousand dollars, part of which he restored in money, and the balance of which he paid after a judgment had been rendered agáinst him; and that the other two brothers had insulted her and been guilty of various acts of mean treatment to her, including calling her a liar, and had repeatedly told her that she was a crazy servant girl, and they wished she was dead; and that at this time she owned property of the value of over twenty-two thousand dollars ; that she had been married to one Frederick Lack, by whóm she had no children; that her husband was the manager of a charity known as the Provident Association ; and that she was a paid employee in that institution, her duties being to pay the employees, about ten or twelve in number, and to dole out provisions and clothing to the poor; that in November, 1890', her husband became sick of a complaint of which he died on or about February 12,1901; that when her husband became sick she then commenced to be forgetful, but when her forgetfulness of any fact was called to her mind she remembered her mistake and would say she had forgotten it; and that at no time was she afflicted with a total loss of memory, extending to her immediate family and property; that evidence has been offered stating that she exhibited fear of her life from those Brecht brothers and feared the Catholics and wanted to propitiate them with money; and evidence has been offered that she feared they would Mil her; that this condition continued until towards the end of December, 1890, when she left the premises of the Provident institution and was discharged from their employment; that soon after her husband’s death early in 1891, she went to live with her three nephews, Cus A. V. Brecht, Charles Brecht and Frank Brecht who are named in her will made September 13, 1893, and was there swindled, abused and called a liar and told repeatedly that they wished she were dead, as already stated; that while there she acted rationally and sensibly; that by efforts of her relatives and of Finis Lack the question of her sanity was submitted to a jury in March, 1892, and that jury found that she was not of unsound mind and was not incapable of managing her affairs; and within about a month another jury found that she was of unsound mind and was incapable of managing her affairs; and that she, in July, 1892, went to reside at the house of her half-sister, where she was treated with kindness and rode out for exercise, and had rest, and that while there and up to the date of this will and until her last illness she was a great reader of the newspapers and conversed rationally on what she read in them, and on other topics, and exhibited no abnormal actions, and was clear, normal, and rational in her language and acts although it is charged by one witness for the defense that at am interview in the fall of 1893, or early in 1894, she repeated a short story twice or perhaps three times during the course of half an hour when they were conversing on general topics, which statement is denied by another unimpeached witness of high official standing in this city; that she was highly educated and talked like a cultured lady, and that she so continued to act and converse until the time of her death on July 26, 1899, when she died of a chill after a sickness of a few hours; and that she was always, up to her last illness, a person of lady-like habit, very neat, cleanly and refined, and could always help herself. I will ask you now, whether, in your opinion this lady was of a sound mind on September 13, 1893, and if she so remained until her death; I will ask you if she was afflicted with senile dementia?

“Mr. Jones: I object to the hypothetical question on these grounds: first, that the hypothetical question embraces facts elucidated by the witnesses, brought out by the witnesses of the plaintiffs in this case, on whom is the burden of proof; and it is not a proper question at this stage. It is not in any sense in- rebuttal of defendants’ proof or rebuttal of defendants’ hypothetical question. We also object to the question on the ground that the hypothesis stated is not definitely stated, in that it recites a fact as haying been testified to one way by one witness and another way by another witness, and puts upon the expert the duty of determin-. ing which is the correct statement of facts. Hypothetical questions must include facts and not evidence of facts.

“The Court: Objection overruled.

“To which ruling of the court the defendants, by their counsel, then and there duly excepted.

“Mr. Kinealy: Now, the first question was, was she of sound mind? A. I understand the question.

“ Q. If she remained so to her death, and if she was afflicted with senile dementia? A. I think she was as sound-minded as the average person of her years is, that she was-not afflicted with senile dementia in the scientific sense of that term. Some people call all people demented who are not as quick-minded and as prompt in memory and understanding as themselves, or as they think they are, but, speaking from what I know, from the observance of old people and the treatment of old people who are sane, and from the additional knowledge that I have gathered from the treatment of people afflicted with genuine dementia, I should say that she had an average sound mind for an old person and that she was not demented.

“Q. Could you say whether or not she was of unsound mind, of any form, on those facts? A. There might have been transitory periods in her life when her mind was-

“Q. I mean in the period covered by these facts? A. She might have had delirium when she died.

“Q. That is a species of unsound mind, is it? A. It is a decided condition of unsoundness of mind.

“Q. Now, will you answer the other questions put as to whether or not she was sane when she died? A. She appears to have died sane.

“ Q. I will ask you now if that woman was capable of understanding that she had property? A. Your hypothetical case states that.

“A. Yes, sir,- the hypothetical case shows it there.

“Mr. Kinealy: Was she capable of understanding- A. Let me tell you why. She had a purpose to execute, a will to execute, and she has received indignities from her nephews, and she remembered that she had received those indignities. She remembered her threat to carry it out in that will, and she made it ■and she had mind enough to do it; and she could not be demented under those circumstances.

“Q. She had, then, mind enough to know that she had property to will, that she was making a will, and the persons to whom she intended to devise her property; is that so? A. I think so.”

The defendants contend that this question was erroneous in this:

(1), It was not proper in rebuttal; (2), the questiorr permitted the expert to pass upon and determine a controversy as to the facts, to' himself determine what wero the facts; (3), the question contained matters wholly immaterial to the question which the expert was nailed upon to answer or submitted a question of fact to the expert and embraced immaterial matter for his •consideration; (4), the question states a material fact as testified to by one witness, which fact the question sets forth is “denied by another unimpeached witness, ■of high official standing in this city.”

The first objection lodged against the question is, that it is not proper evidence in rebuttal.

The record discloses that at the trial the plaintiffs introduced evidence tending to prove the due execution of the will, and that the testatrix was of sound mind and disposing memory at the time of its execution, and then rested their case. Thereupon the defendants introduced evidence tending to show she was of unsound mind and incapable of making a will. In rebuttal, plaintiffs, over the defendants’ objections, were permitted to ask the foregoing question of Dr. Hughes, which together with his answer were admitted in evidence, as before stated, which bore upon the testatrix’s mental condition, one of the main facts to be established in order to make out a prima-facie casé, to which defendants excepted.

The rule of procedure in establishing, or in contesting a will, in the circuit court, was fully and finally settled in this State by the decision of this court in the case of Harris v. Hays, 53 Mo. 90; Judge Napton, who wrote the opinion in that case, after reviewing the conflicting decisions of this court upon that subject, announced the rule of procedure in the following language: “The proper course, doubtless, is for the proponents of the will to introduce the subscribing witnesses, or, in case of their death, proof of their handwriting, and establish by them the execution of the will, and the sanity of the testator. This makes a primafacie case, and the burden of establishing incompetency or undue influence rests then on the contestants. ’ ’

This rule has been uniformly followed by the courts of this State ever since its enunciation. [McFadin v. Catron, 120 Mo. 252, 138 Mo. 219; Carl v. Gabel, 120 Mo. 283; Riggin v. Westminster College, 160 Mo. 579; Fulbright v. Perry County, 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276; Tibbe v. Kamp, 154 Mo. 545.]

That being the rule of practice, the plaintiff should not have been permitted to introduce evidence of matters in chief after defendants had rested their case. Their evidence in rebuttal should have been confined and limited to the new matters brought out by the defendants’ evidence. In other words, plaintiffs should be required, in the first instance, to introduce their entire evidence in chief before resting their case, and not be allowed to divide it and introduce a portion of it in chief and the remainder in rebuttal. The defendants are entitled to know plaintiffs’ entire case before they are called upon or required to meet and answer it, otherwise great injustice might be done defendants. We are, therefore, of the opinion that the evidence was admitted out of order, and that the action of the court in so admitting it was erroneous. But in this particular case we are not prepared to say it was prejudicial or reversible error. Defendants have not pointed ont in what manner they have been prejudiced or injured by the introduction of the evidence in the order mentioned.

The order of introduction of evidence is a matter resting largely in the sound discretion of the trial court, and if that discretion has not been abused to the detriment of the other party the action of the court will not be disturbed. [Garland v. Smith, 127 Mo. 567; State v. Buchler, 103 Mo. 203; State v. Daubert, 42 Mo. 239; State v. Linney, 52 Mo. 40; Pier v. Heinrichoffen, 52 Mo. 333; Ober v. Carson’s Exr., 62 Mo. 209; State v. Murphy, 118 Mo. 7.]

But it is the better and safer practice to stick to the well-known and well-beaten paths established in the practice.

II. The second and fourth objections refer to the words italicized in the hypothetical question, and are as follows: “Although it is charged by one witness for the defense that at an interview in the fall of 1893, or early in 1894, she (the testatrix) repeated a short story twice or perhaps three times during the course of half an hour, when they were conversing on general topics, which statement is denied by another unimpeached! witness of high official standing in this city.”

A person to be capable of making a valid will must be of sound mind and disposing memory, and only such persons have a disposing memory who1 are capable of calling to mind all their property and all the persons who come reasonably within the range of their bounty. [Benoist v. Murrin, 58 Mo. 307.] So in this case it was material to inquire as to the memory of the testatrix, and the clause objected tó in the hypothetical qiiestion had a significant bearing on her memory. If the condi- • tion of her mind was such that she would repeat incidents or stories two or three times in the course of half an hour, the expert giving his opinion upon her mental condition should know that fact and not he left in the dark as to that important question.

In answering the question as propounded, the physician was either compelled to ignore that portion of the question or to decide for himself which of the two witnesses testified to the truth regarding her repeating the story, neither of which had he the right to do. It was the duty of the jury, not of the expert witness, to-say whether the testatrix repeated the story or not. In a recent case, in the discussion of this question, this court said: “Again, the question does not, in, many respects, state the facts, hut leaves it to the expert witness to say what the facts are, that is to say, whether the witnesses testified to the truth. ... It was the duty of the jury, not of the expert witness, to say whether the physician wrote the letter.....It is the province of the jury to say what the facts are, and the answer of the expert is of no value whatever if the jury do not believe the assumed facts to be true. . . . The assumed facts should be stated as facts, so the jury can consider or reject the opinion of the expert, accordingly as they may find the assumed facts to be true or false.” [Russ v. Railroad, 112 Mo. l. c. 49; Hicks v. Railroad, 124 Mo. 125; Railroad v. Falvey, 104 Ind. 421; Williams v. State, 64 Md. 384.]

Again, in another case, this court said: “It is manifest that a very slight change of fact may lead to a very radical difference in the conclusion drawn from them. This is particularly true when the opinion of physicians is used to prove the effect produced upon the health of a person.” [Hicks v. Railroad, 124 Mo. l. c. 125.]

We are, therefore, of the opinion that the court erred in the admission of that evidence.

The last objection to the question is, that it contains matters wholly immaterial to the question which the expert was called to answer. Counsel have not called our attention to nor pointed out the immaterial matters complained of. We have carefully read the question, and have failed to discover any immaterial matters stated therein.

III. The record discloses that one of the reasons assigned by the court for sustaining the motion for a new trial was “the discovery of new evidence.”

This evidence is contained in the affidavit of Dr. E. R. Waterhouse, who was the family physician of John C. King, the husband of the half-sister of the testatrix, and at whose house she resided during the last five or six years of her life. The affidavit is as follows:

“Eugene R. Waterhouse on his oath states that he has resided in St. Louis for the past eighteen years and has been a practicing physician during that period ; that during the years 1897 and 1898 and 1899,1 was the family physician in the family of John C. King, who lived at 1303 Washington avenue; that during said period I treated Mrs. King for a fistula and also treated Mrs. Emilie Lack, half-sister of Mrs. King; that during said period I visited their residence about seventy times and usually saw Mrs. Lack on the occasion of these visits; that I have examined the records of my office and find that the above visits were made by me; that from the first time I visited Mrs. King I noticed Mrs. Lack’s physical and mental condition and also during the above-mentioned period, and from my observations and Mrs. Lack’s actions and conduct I formed the opinion that she was a woman of undoubtedly unsound mind; that Mrs. Lack’s actions were indicative of an unbalanced mind. When you would address her she would not answer, but begin to sing and hum and would have a vacant stare from her eyes; and that she-bore all the symptoms of having an unsound mind; that this condition continued as long as I visited the'King residence. Affiant further says in reference to-Mrs. Lack’s physical condition that she was unable to-care for herself; that she had lost control of her bowels and urinary organs and was slouchy and dirty in her personal appearance; that during a portion of the period I visited the King residence Mrs. Lack was taken care of by various servants whose names I do not know. Affiant further says that in my opinion the mental disease of Mrs. Lack was progressive in nature and that during the latter part of the above period she was wholly irresponsible and required constant watching. That on my first visits to Mrs. King’s residence and when I noticed Mrs. Lack’s peculiar actions, Mrs. King explained them by saying that her mind was wrong; and repeatedly thereafter Mrs. King made the same statement to me.

“Affiant further says that: he was called to John King’s residence on G-ravois avenue, just before Mrs. Lack died, but was informed before he arrived at the house that Mrs. Lack was dead. Affiant further states that at the request of Mrs. King and in the company of 'Mrs. King I visited the probate court of the city of St. Louis in the year 1898 or 1899, to testify and did testify before the probate judge in reference to Mrs. Lack’s physical and mental condition, to' the effect that she was wholly unable to care for herself and that she was of unsound mind.

“Affiant further says that he also treated John A. King, son of John C. King, and was their family physician during the periods above mentioned.”

The motion for a new trial was filed on March 27, 1906, and one of the grounds assigned therefor is in words as follows:

“11.' Because, since the trial of this cause, the defendants have discovered new and important evidence material to the issues submitted to the jury, which evidence is not cumulative in character and which evidence was unknown to defendants at the time of the trial.”

On the same day the court granted defendants ten days in which to file affidavits in support of motion for new trial; and within that time they filed the affidavits of Dr. Waterhouse, Arthur Marshall, Edward Unwin and J. H. Orr, one of the attorneys for the defendants, the three latter stating what diligence they had used in trying to discover all the witnesses and evidence in the case.

The plaintiffs contend that the action of the court in granting a new trial on the ground of newly-discovered evidence was erroneous.

The motion for new trial does not disclose or set' out the newly-discovered evidence or its nature, nor does it give the names or addresses of the witnesses by whom the newly-discovered evidence was to be given, nor was there any affidavit filed with the motion.

The motion simply states that, “since the trial of this cause, the defendants have discovered new and important evidence material to the issues submitted to the jury, which evidence is not cumulative in character, and which evidence was unknown to the defendants at the time of the trial. ’ ’

This question has been before this court repeatedly, and there is nothing new to be said upon it.

In the case of State v. David, 159 Mo. l. c. 535, this court said: “A new trial was also asked upon the ground of newly-discovered evidence, but the evidence was not set out in the motion. The mere fact, asserted in the motion, that the newly-discovered evidence was material, did not prove it to be so. It should have been set out in order that the court might pass upon its materiality. Por these reasons, besides others unnecessary to mention, this question cannot be considered by this court.”

And in the case of State v. Welsor, 117 Mo. l. c. 582, the law applicable to this question was stated in the following language: “In the case of State v. Ray, 53 Mo. 349, Judge Sherwood, in delivering the opinion of the court, says: ‘In the State v. McLaughlin, 27 Mo. 111, this court adopts, with most cordial approval, the rules as laid down in Berry v. State, 10 Ga. 511, by Judge Lumpkin in respect to new trials, on the ground of newly-discovered evidence, as follows: “The application must show, first, that the evidence has come to-his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not cumulative; fifth, that the affidavit of the witness, himself, should be produced, or its absence accounted for; sixth, that the object of the testimony is not merely to impeach the character or credit of a witness.” ’ See, also, to the same effect, State v. Rockett, 87 Mo. 666; State v. Butler, 67 Mo. 63; State v. Carr, 1 Fost. (N. H.) 166.”

In- the case at bar, the affidavits were not filed in-support of aud in proof of the newly-discovered evidence stated in the motion for a new trial, because, for the very obvious reason, there was no such evidence stated therein; but the object and purpose in filing them was to bring the evidence itself and not the proof thereof to the attention of the court. The law requires such evidence to be set out in the motion; and the mere-fact that it is so stated does not prove it to be true, and for that reason its truthfulness is required to be established by affidavits.. But here the defendants are trying to make the affidavits serve a twofold purpose; first, a ground for a new trial, and, second, proof of the statements constituting that ground. This cannot be-done. The motion for new trial must be filed within four days after the trial, and the court has no power to extend the time for filing it. If the evidence is set out in the motion, then this court has repeatedly held that the trial court may give the parties time in which to-file affidavits in support thereof.

The defendants state in their motion that they have discovered new evidence; that it was material to-the issues; that it was not cumulative, and that if admitted in evidence probably a different result would be reached if a new trial was granted. If they knew such evidence existed at the time the motion was written, why did they not incorporate it into the motion and later file the affidavits in support thereof?

If such a practice as is contended for in this case was permissible, it would enable the parties to supplement and add to their motion for a new trial after the expiration of the four days allowed for filing it, and thereby open the door to temptation and fraudulent conduct in bolstering up motions for new trials.

There is an additional reason why the court should not have granted a new trial on account of the newly-discovered evidence, and that is because defendants did not show proper diligence in trying to discover the witnesses and evidence in the case. Dr. Waterhouse states in his affidavit that he was a witness in the proceedings in the probate court and testified as to Mrs. Lack’s condition. Her mental condition was under investigation in those proceedings and Mr. Orr knew of them. The slightest investigation on his part would have revealed to him the names of the witnesses who-testified as to her insanity in that court.

And again, he states in his affidavit that he had been King’s family physician for five or six years, during the time the testatrix lived at his house, and' that he made some seventy-odd professional visits there during those years, yet not a word of inquiry was ever made as to who the family physician was.. Doubtless many neighbors could and would have furnished that information had they been asked. Proper diligence was not shown. [Railroad v. Mirrielees, 182 Mo. l. c. 126-145.]

For the reasons stated in the first paragraph of this opinion, the judgment of, the circuit court sustaining the motion for a new trial is affirmed.

All concur as to paragraphs two and three, but ValUcmt, P. J., and Lamm and Graves, JJ., dissent as to paragraph one.


text:
    JOHN HURLEY v. DAVID KENNALLY, Appellant.
    Division One,
    July 13, 1907.
    DEED OBTAINED THROUGH FRAUD: Undue Influence: Incapacity: Evidence. Where an infirm and ignorant old man, who had' recently lost his wife, induced by his loneliness and the proffered kindness of defendant, went to defendant’s house to live, was there kept supplied with whiskey, and while sick conveyed land at the time worth three thousand six hundred dollars to defendant upon condition that defendant would clothe, support and maintain him during the remainder of his life, and there is evidence that he knew nothing about having made the deed until so informed by others, and that when it was made a lawyer and a notary appeared on the scene and they were liberally paid for their services and the deed was signed by his mark in their and defendant’s presence alone, his hand being at the time held by the lawyer, and the evidence is contradictory of whether the lawyer and notary were sent for by defendant or brought by defendant at plaintiff's reguest, and that after the deed was made defendant by conversations with interested friends of plaintiff tried to conceal from them that a deed had been made, the finding of the chancellor that plaintiff at the time was mentally incapacitated from understanding the nature of said deed and that it was procured by the exercise of undue influence over him by defendant while he was in said condition of mind, will not be disturbed.
    Appeal from Jackson Circuit Court. — Eon. J. E. Glover, Judge.
    Affirmed,

      Bruce Barnett for appellant.
    (1) There was no evidence of mental incapacity. The only pretense or attempt at proof thereof was that defendant was old and sick, and that he had an hallucination that his deceased wife had sat by his bed in the same dress in which she was clothed when buried. This court has repeatedly held that neither of these facts is sufficient to establish mental incapacity. Cutler v. Zollinger, 117 Mo. 92; Studdard v. Wells, 120 Mo. 25; Cutts v. Young, 147 Mo. 587; Fitzp atrick v. Web ex*, 168 Mo. 562; Studybaker v. Cofield, 1591 Mo. 597. ' (2) There was no evidence whatever of fraud or xindue influence. The only thing of the kind pleaded in the petition or suggested by the evidence is that defendant furnished the plaintiff some whiskey, but there is no evidence whatever that he ever became intoxicated or his faculties clouded, or that he was under the influence of liquor at the time the deed was executed, or that he drank any liquor at all upon that day. There is no such inadequacy of consideration as to raise the presumption of fraud.

      Daniel B. Holmes and I. Tavenner for respondent.
    (1) The evidence fully justified the court in setting aside the deed. Dickson v. Kempinsky, 96 Mo. 258; Bispham’s Prin. Eq. (6 Ed.), sec. 230; Fry v. Lane, 20 Ch. D. 322. (2) There is abundant evidence scattered all through the record that Kennally failed to carry out the provisions of the deed with respect to support, maintenance, etc. There is no pretense that since Hurley left Kennally’s house the latter has ever given him but $2 or that he has even attempted in any way to provide him adequate support. There is nothing in the deed, even as it is wi'itten, that required Hurley to live with Kennally.
   GRAVES, J.

Action by plaintiff instituted in March, 1902, to cancel a deed made by him to defendant, February 12, 1902, conveying to said defendant a small tract of land lying south, of Kansas City, estimated by plaintiff’s witnesses to be worth $3,600 at that time, and about twice that sum at the date of trial. The deed is in form a warranty deed, but contains as expressive of the contract between them the following clause:

“It is a further consideration! of this deed of conveyance that said David Kennally party of the second part, shall support and clothe and maintain the said John Hurley party of the first part, during the remainder of his natural life; shall provide him with necessary medical attention and all other necessities, and upon his death give him a decent burial and pay all necessary funeral expenses.”

There is in addition an expressed consideration of $350, although no actual money was paid at the time defendant, however, claimed previous advancements in that sum.

This is the second appearance of the case in this .court. The first time, our views will be found in 186 Mo. 225. The merits of the case was not then passed upon by us. The first trial, nisi, was before the late Judge J. W. Henry, who first found for the defendant, but upon a reconsideration of the case upon motion for new trial he sustained the motion upon the ground, evidently, as stated in our former opinion, that the judgment was not sustained by the weight of the testimony. After sustaining the motion and without further trial, the court entered judgment for plaintiff, and this judgment upon the appeal of defendant, was reversed, and the cause remanded for trial de novo.

It was retried before Judge J. H. Slover and upon that trial plaintiff was again successful, as evidenced by the following judgment entered therein:

“Wherefore it is by the court ordered, adjudged and decreed that said deed hereinbefore described from plaintiff to defendant is null and void, and that the same and the record thereof be and the same are hereby set aside, canceled and for nanght held, and that the possession of the said premises be restored by the defendant to the plaintiff; that there is due the defendant from the plaintiff the sum of one hundred and sixty dollars, together with interest thereon from and after this date at the rate of six per cent per annum, and that the defendant have a lien upon said land and premises for the payment thereof; and further that the plaintiff have a writ of restitution of said lands and premises, and have and recover of the defendant his costs herein most wrongfully expended, or incurred, and have hereof execution. And it is further ordered, adjudged and decreed that upon the payment of said sum of one hundred and sixty dollars and interest as aforesaid to the defendant, or into this court for the defendant, that the lien above declared on said lands and premises shall at once cease and terminate.”

Prom this judgment the defendant duly appealed, after unsuccessful motion for new trial. We have a case of facts rather than one of law. The plaintiff, an aged Irishman, from the county of Cork, had been married about thirty-two years to his wife Ellen; for twenty four years prior to August, 1901, they had resided together in a little two-room cottage upon this small tract of land; the good wife, who was a neat housekeeper and an excellent cook, departed this life in August, 1901, leaving the plaintiff, then eighty-one years old, alone; they had no children, and no relatives, except some second cousins; after the ancient custom of the fatherland, a “wake” in usual and customary form was held, and the wife placed in her last resting place; mass under the rules of the church was said for her departed soul; the aged and decrepit husband, who knew nothing of cooking-, returned to the desolate little home; through the kindness of neighbors he was furnished with food for a few days and in the meantime he met the defendant, likewise from the Emerald Isle, but from the adjoining county of Limerick; the meeting was at a barber shop in Kansas City, and is described thus by plaintiff:

“Q. When did you first see Mr. Kennally after your wife’s death? A. I seen him in town. I went into a barber shop to shave and Kennally was peddling his milk around town somewhere and happened to come in there. He seen my horse in the street; he come in and said, ‘You never cooked in your life; come up to my house and I will cook for yon,. Live with me for a while.’ That is how it was.

“Q. Well, what did you tell him? A. I told him I would. ■ Told him to send my furniture up there. I told him I would, and I sent the furniture up there.

‘ ‘ Q. Did you ask him to let you come to his place, or did he invite you up there? A. He invited me up there.”

And thus by defendant:

“Q. What did he say about his circumstances? A. He said he was living down there by himself. I asked him who gave him anything to eat. He said Mr. Young gave him something to eat. ‘Why,’ I says, ‘you could come up to my house, John,’ said I, ‘and I will give you something to eat.’ ‘I know you couldn’t cook or do anything for yourself, and whenever you want anything, come up to my house. ’ That was all.

“Q. What did he say to that? Did he make any reply to that, that you remember? A. I believe that he said that he would.- I said, ‘You mustn’t get hungry down there; when Mr. Young gets tired of cooking or giving you anything, come up to my house.’ I said, ‘You know you couldn’t cook or do anything for yourself, or make a cup of coffee, but I can do it and you mustn’t get hungry,’ was all.

“Q. That was all that was said there that day? A. That was all.”

Defendant is and was an old bachelor, aged at the time 60 years, and ran a dairy near where plaintiff lived; he had living with him an aged Teuton, Solon Shaekett, by name; they kept house themselves, except once or twice a week a woman relative of the defendant came over and did some cooking and house-cleaning; the evidence is contradictory as to the cleanliness of the place.

It also appears that defendant was much affected by the death of his wife. Defendant, in further detailing the barber shop incident, says:

“Q. Did he cry on that occasion? A. Well, yes, we both cried. We both chimed in. Mrs. Hurley was an old friend of mine.

‘ ‘ Q. You both cried on that occasion? A. Yes, sir..

“Q. You next saw him at his house some two weeks afterwards? A.' Yes, sir.

‘‘ Q. And then he cried again? A. Indeed he did. He was so glad for me coming — ‘ Why didn’t I come before this,’ he said.”

Shortly after this meeting the plaintiff had a Mr. Young haul over some of his furniture, and after about two weeks, defendant went over after the plaintiff, and he describes the incident thus:

“A. I found the poor old man lying right there on a mattress on the floor, and when I went in I said, ‘My God, John, this house is so bare.’ And, ‘Davie,’ he said, ‘is the only friend I have got on earth — why didn’t you come long ago?’ And he commenced to cry and he sat upon the chair. Well, he says, ‘I feel relieved now, and my mind is easy.’ And then he commenced telling me about mashing his bones and killing him, and Tom Hurley was going to kill him about the $75 that his mother stole, and some things his wife had; I said, ‘You can be easy — you. know Mrs. Hurley has .got enough, besides that/ I says, ‘It won’t be long — it won’t be very long until the others are lying in the same condition, ’ I said. He sat up then, and Mr. Stewart came over—

“Q. That is the old gentleman that got sick here yesterday? A. That got sick. And he said to Mr. Stewart, ‘I am satisfied now — I can get one night’s rest where I will be protected and. I won’t be afraid of my life.’

‘ ‘ Q. Then he went up to your house ? A. "We put the mattress in the wagon and Mr. Stewart got old John Hurley in the milk wagon, with his head up towards where I was and his feet down to the back end of the wagon on a board, his feet were hanging out, down upon the mattress, and I brought him home.”

This removal of plaintiff was about September 1st, or a little later perhaps. It should be noted that plaintiff and defendant had been acquainted for some years, and that both were of the same religious faith. Plaintiff seems to have had an appetite just a little partial to the taste of “red liquor” and especially if it was flavored with rock candy. Immediately upon the arrival of plaintiff at defendant’s home, it would seem that whiskey was made a substantial portion of the old man’s diet. Speaking of the plaintiff’s condition and treatment immediately after his arrival, the old German says:

“Q. Why did he think he would die? A. I thought myself that he would die in about three or four days.

“Q. When he first came there? A. When he first ■came there.

“Q. He looked feeble? A. He looked feeble, and Dave took right good care of him.

“Q. He looked feeble and broken-hearted? A. Broken-hearted.

“Q. Well, then, while he was there I suppose he had Dave furnish him with all the whiskey he wanted? A. Yes sir.

“Q. How much did Dave furnish him? A. Well, I believe they used to get half a gallon a week, I believe, or a gallon; I don’t know.

“Q. Or a gallon? A. I don’t know.

“Mr. Buckner: Oh, he didn’t say so.

“Q. Sometimes you think they had a gallon, do you know? A. No, it might be a gallon or two gallons; I don’t know. It was one of them big—

“Q. (Interrupting): One of those big demijohns? A. Yes, sir.

“Q. And all you fellows helped yourselves more or less? A. No, sir. Sometimes Mr. Hurley or Dave gave me a drink when they wanted to; and sometimes they wanted to give me more, and I told them no.

“Q. The whiskey was for John Hurley, was it? A. Yes, sir.”

Hpon this point, defendant says:

‘ ‘ Q. How much whiskey did you furnish Mr. Hurley during the time that he was there? A. Lord, I couldn’t tell you now — it has been so long since.

“Q. How much a week — a half a gallon a week? A. Perhaps maybe an old demijohn, or maybe something more. I couldn’t exactly tell you.”

Shortly after reaching the home of the defendant, the plaintiff began to visit Matilda Kelley and her brother, two aged persons of the same nationality. These visits were frequent, whether induced by the companionship of the Kelleys or a nearby saloon is not -quite clear to our minds. It is clear he would return at times feeling a little worse from visits to the wayside saloon. The result was a deed to the Kelleys for four acres of the ground, without consideration. The latter part of January, the plaintiff took a severe cold and was confined to his room and bed, quite sick. During this illness, on February 12th, 1902, a lawyer and notary public appeared, with the deed already prepared, and it was executed by the mark of plaintiff being-placed thereto under the guiding hand1 of the lawyer and in the presence of defendant, the lawyer and the-notary. After the execution of the instrument, the three, plaintiff being left out, joined in taking a drink from a bottle of whiskey in plaintiff’s room, whereupon defendant paid the lawyer ten dollars and the notary two dollars. It is a matter of dispute as to how these-parties happened to come. Plaintiff says that he did not send for them, and the defendant says that he brought them there at the request of the plaintiff. There is also a discrepancy in the testimony of the defendant’s witnesses as to how the lawyer and notary-got there. The wife of the deceased lawyer says that, they sent a carriage to- the house for her husband, while the notary says that he and the lawyer took the-street car from the office and went to the end of the car-line, and was then taken by defendant’s rig to the house. The defendant’s testimony corroborates the notary. A discussion as to the reason for this difference is unnecessary, but may be inferred from the-charges in the petition. The estimable lady witness said: “I have no feeling one way or the other, except, my husband’s name.” But sufficient upon this point. According to defendant, when the deed was drawn, the-attorney said to the aged, decrepit and sick old man, as he lay propped up in bed: ‘‘ John, this is the honestest deed I have drawn between two parties. ’ ’ If this really occurred, it strikes us as a very singular remark. If it occurred, which we doubt, it would indicate much. To our mind it was not said, but is used by the witness as a self-conceived shield, for what he at least realized' to have been an over-reaching'and dishonest transaction. From one witness, the following was shown as to what defendant thought of plaintiff’s condition at about the time of making the deed: '

‘ ‘ Q. What did he say about how siek Mr. Hurley was? A. Well, he said he was real sick — he said, once or twice, two or three nights he said he thought John was going to die — and he had nursed him and been up at night maldng a fire and every thing, but now he said he was better.

“Q. State what, if anything, he said about being protected for looking after Hurley? A. He said he had all this trouble and all this care, but he didn’t tell me anything about John having given him, the farm, but he just said, ‘How will I be protected, May Murphy —I have had all this care and trouble — how will I be protected, May Murphy?’ ”

This conversation was after the defendant had the deed and he practically admitted the conversation.

The details of all the evidence in this record will serve no good purpose. Suffice it to say that it appears for the plaintiff, who can neither read nor write, that while very sick he signed a paper at the request of defendant and his attorney; that he did not know what he was doing at the time; that he did not know that he had made a deed for some days afterward when he was informed by some lady relative who visited him; that when informed that he had made a deed to all the property he had, he said that he had made no deed; this was several days after the deed was recorded on February 13th; that he was then sick and when he was asked what he would now do for a tombstone for his wife, said that his wife was not dead, for he had talked with her the night before; that his wife sat in a rocking chair in the room and talked to him; the old German said, before making the deed, he talked about seeing his wife at night; to others a few days after the deed was made and before he recovered from his sickness, he said that he talked with his wife every night. All goers and comers found whiskey in his room.

' On the other hand the evidence is that the deed was read to plaintiff; that he was glad the lawyer had brought it; that he had been wanting it done for some ■time; that he did not want his relatives to have. Ms property; that he had directed the deed made in September before; that he was not very sick at the time the ■deed was made and understood what he was doing; that he had said all along that he wanted defendant to have the land for keeping him.

It also appears that at one time several real estate ■men called upon plaintiff to see what he would take for •his' land, and that it seemed to anger defendant, who treated them rudely and talked to them offensively. •The plaintiff says, and it was borne out by the circumstances, that when he was informed that they had gotten him to make a deed, as soon as he was able, he left defendant’s place and had never returned. He claims .that he asked for a doctor and a priest while he was 'sick, but defendant brought a lawyer instead. These matters are denied by defendant. We will not go further into detail. Suffice it to say that we have gone •over all the evidence in the ease and feel satisfied with .the conclusion reached by the learned chancellor who presided at the trial in the lower court.

In his findings, speaMng of tMs deed, he says: It ■•“was by the defendant fraudulently procured to be .made to Mm by the plaintiff at a time when plaintiff was feeble in mind and mentally incapacitated from un•derstanding the nature of said deed and by the exercise of undue influence by the defendant over the plaintiff .while he was in said condition of mind; that the defendant has not kept and did not intend to keep; the cove-..ants on his part implied by the acceptance of said deed; and that said deed is null and void and ought to be set aside. ’ ’

The chancellor then takes an accounting between-the parties, which resulted in the $160 mentioned in the judgment proper. .

To our mind the weight of the testimony sustains the findings and judgment of the lower court, and such judgment is affirmed.

All concur.


text:
    MAYES et al., Appellants, v. PALMER et al.
    Division One,
    July 13, 1907.
    1. JUDICIAL NOTICE: Of Appointment of Judge. The court will take judicial notice of the appointment of the trial;judge who was appointed to fill a vacancy caused by the death of the' . regularly elected judge, and of his subsequent election at a general election to fill out the balance of said unexpired term.1
    2. TRIAL: Begun Before and Finished After Election of Judge., A trial begun: before the general election, before a judge legally-appointed to serve until a general election, and finished, before, the same judge, after that election, at which the same judge; was elected for the balance of the unexpired term, was regular, and a motion for a new trial will not be sustained on the theory that the trial was not had and the judgment was not rendered/ during the same term of office of the judge.
    3. PUBLIC ROAD: Appeal to Circuit Court: Public Necessity.;. An appeal lies to the circuit court from the judgment of the county court establishing a public road and ordering it to be opened, and the circuit court can try the cause anew, and has jurisdiction to find that the proposed road is not of public' necessity, and on that ground to dismiss the petition therefor. The question of determining whether or not the road is a public necessity has not been given exclusively to the county court.
    Appeal from Lincoln Circuit Court. — Eon. E. W.Jolm.son, Judge. :
    Affirmed.

      Wm. A. Dudley and Martin & Woolfolk for appellants.
    (1) Upon the expiration of the term of Judge Johnson, November 8, 1904, he no longer carried the proceeding had in this case at the previous October term in his breast and the trial should have been de novo at the December term. Clanton v. Ryan, 14 Colo. 419; Ellis v. Rector, 32 Mich. 379; State ex rel. v. Perkins, 139 Mo. 106; Connely v. Ashworth, 98 Cal. 205; Gordon v. Trainor, 92 N. Y. Supp. 321; Babcock v. ¡Wolf, 70 Iowa 576. (2) The question as ‘to the public necessity for a given highway is a legislative question delegated exclusively to the county court, and the court erred in determining the case by declaring the road unnecessary. Kansas City v. Baird, 98 Mo. 215; Savannah v. Hancock, 91 Mo. 57; Aldridge v. Spears, 101 Mo. 400; State ex rel. v. Engleman, 106 Mo. 400; Kansas City v. Oil Co. 140 Mo. 464; St. Louis Co. v. Gris-wold, 53 Mo. 193; Scott Co. v. Leftwich, 145 Mo. 26; Bridge Co. v. Stone, 174 Mo. 22; State ex rel. v. Thomas, 183 Mo. 229; Howe v. Callaway, 119 Mo. App. 261; Crary v. Port Arthur Chan. Co., 92 Tex. 275; Palmer v. Harris Co., 29 Tex. Civ. App. 340; Powers v Railroad, 33 Ohio St. 429; Schuster v. Sanitary Dist., 177 111. 626; Railroad v. Lewiston, 134 Cal. 412; Los Angel-es v. Waldron, 65 Cal. 283; Stratford v. Greensboro, 124 N. C. 127; Railroad v. Railroad, 111 Mass. 125; In re Eowler, 53 N. Y. 60; Park Corn’s v. Armstrong, 45 N. Y. 234.

      Norton, Avery é Young for respondents.
    (1) In truth and in fact Judge Johnson was both 'de facto and de jure judge of the circuit court, and had jurisdiction to enter the judgment under any view of the case. (2) Respondents were interested parties, and exercising their right as remonstrators given them by the statute, had a right to appeal and to¡ have this ■question of necessity and utility tried anew. There is no authority cited by appellants that justifies them in the conclusion that Judge Johnson did not have jurisdiction to try the question of public utility and necessity. In re Big Hollow Road, 111 Mo. 326; Bennett v. Mali, 184 Mo. 407.
   WOODSON, J.

This case originated in the county court of Lincoln county. Appellants filed their ■ petition in said court, asking for the establishment of a public road between the towns of Elsberry and Apex. The respondents, in due time, filed their remonstrance against the prayer of the petition. All jurisdictional steps in the case were properly taken and guarded. The county roád commissioner filed his report, as required by law, and respondents filed their written exceptions' thereto, and, after having heard both parties, • the exceptions were overruled and1 the road ordered established as prayed. The respondents duly appealed from the order and judgment establishing the road to 4he circuit court of that county, where a trial de novo was had, at the October term, 1904, thereof, before the Hon. H. W. Johnson, Judge, sitting as a jury.

When the cause was called for trial numerous objections to the introduction of any evidence were made by the respondents, which were, by the court, overruled. 'The appellants then introduced evidence tending to prove all the allegations of the petition, and respond- , ents introduced evidence tending to contradict and disprove those allegations. At the close of the introduction of all the evidence in the cause, the appellants requested the court to state its finding of facts in writing, separately; whereupon the court took the case under advisement, and, thereafter, on November 21st, 1904, in vacation, the judge made and filed with- the clerk of said court his findings of fact and conclusions of law.' The findings of fact sustained substantially the allegations of the petition and the regularity .and legality of the proceedings, but in its conclusions of law declared that the proposed road was not of sufficient public necessity and practicability to justify the establishment of the same.

The declarations of law given by the court are as follows:

“From the foregoing facts the court concludes that the proceedings had in the county court were regular and that this court obtained jurisdiction of the cause to try the same.

“The proposed road not being of public necessity the petition should not be granted but should be dismissed, and it is so ordered.”

Afterwards, at the October adjourned term of said court, held on the 21st day of December, 1904, the ap- • pellánts excepted to the findings of fact and conclusions of law theretofore filed by the judge in vacation. The court then rendered judgment for the respondents; ' and on the same day appellants filed their motions'for ■ a new trial and in arrest of judgment, which were, by the court, overruled, and exceptions were duly saved, and they have timely appealed to this court from the judgment of the court refusing to establish the road and dismissing the petition.

. I. Appellants present but two questions to this court for determination.

First: They contend that the Hon. H. W. Johnson, who tried the case below, was not in fact judge of the circuit court of Lincoln county at the time the judgment was rendered, and for that reason the judgment was and is a nullity.

Second: That the question of the public necessity for the highway is a legislative question delegated exclusively to the county court, and the trial court erred in holding the proposed road was unnecessary.

We will dispose of these questions in the order presented.

Regarding the first question, it may be said, no such question was presented to the trial court. . The record discloses that the trial was had “before the Hon.. H. W. Johnson, Judge, sitting as a jury,” and is perfectly silent as 'to when or how he became clothed with authority to try the cause. The first mention of this question is found in the motion for a new trial, and that reference is in the- following words:

First: “The findings of facts and order dismissing the cause were not made and filed during term of office of the judge who tried this cause.”

Second; “The court has no jurisdiction to enter judgment upon proceedings had in this cause before his present term of office began.”

Without any evidence whatever to support it, we find in appellants’ statement of the case in this court the following: “In the summer of 1903, Judge Hughes of the 11th Judicial Circuit died and Hon. H. W. Johnson was appointed to succeed him, his commission expiring at the next general election,. Nov. 8, 1904. On November 8, 1904, Judge Johnson was elected to succeed himself for the remainder of Judge Hughes ’ term, receiving his commission a few days after the election.”

While the record is silent as to the appointment of Mr, Johnson as judge of the 11th Judicial Circuit to succeed Judge Hughes, and to his election on November 8, 1904, to fill out the unexpired term of Judge Hughes, yet the appellants contend that it was the duty of the trial court and is of this court to take judicial notice of those facts, and that they are thereby presented as effectually to the court as if they had been established' by proper evidence.

In treating this question in vol. 16, pp. 899 to 902, par. 3, Cyclopedia of Law and’ Procedure, we find the following:

“a. In some of the states, courts are expressly required by statute to take judicial notice-of whatever is established by law, . . . and judicial departments of the State and of the United States. . . . These statutes seem to be merely declaratory of the pre-existi/ng rule upon the subject.

“b. Courts of a State judicially know who is or was at any time the chief executive thereof, or of any government formerly exercising sovereignty therein. Other officials including de facto officers, whether appointed by the executive or elected by the Legislature, have been judicially recognized; such as state agents, attorneys-general, auditors-general and their deputies, tax officials, bank commissioners, commissioners of deeds, notaries and paymasters. The date of accession to office and the term of office are likewise noticed.

“(D) Courts judicially know who is or was the executive head of the United States; the principal officers of state in the national government; the heads of departments and of bureaus therein; the permanent or pro tempore commissioner of patents; the commissioner of the general land office, his pro tempore substitute, and principal subordinate officials; the comptroller of the currency or a deputy acting as comptroller. It has been held, however, that the state courts at least do not judicially notice a deputy United States marshal.

“ (11) Since judicial knowledge of official position implies knowledge of the methods by which it is legally obtained, state courts judicially know the date of holding a general election, or a special election provided for by a general law, and what officers are to be elected, such as governor, secretary of state, county superintendent, prosecuting attorney, sheriff, township- trustee, or president of the United States; what party ‘tickets’ •were before the voters at a general election; and the result of the election as shown by the official returns. A state court also judicially notices the governor’s ap pointments to prominent offices, such as attorney-general, commissioner of deeds, election commissioner or a sheriff. . . . Federal courts take judicial notice of the date prescribed by law for the general election of state officers, and the legal requirements under which such election is held.”

The St. Louis Court of Appeals held that it would take judicial notice of the acts of the mayor of St. Louis in removing the superintendent of the house of refuge from office. [Bristol v. Fischel, 81 Mo. App. 367.]

And this court has held that it would take judicial notice as to who was elected to office at a general election, and such notice embraces those elected to official positions in a county. And that when the judicial memory is at fault, it may refer to documents of reference. In the same case it held that it would take judicial notice of public statutes. [State ex rel. v. Seibert, 130 Mo. 202.]

In the light of the authorities before cited, the authority of the court to take judicial notice of the ap - pointment of H. W. Johnson, Judge of the Eleventh Judicial Circuit, and his subsequent election to fill out the unexpired term of Judge Hughes, will not be questioned, and is not seriously denied by counsel for respondents.

"We will now return to the question first presented by this record. "Was the Hon. H. W. Johnson, in fact, judge of the circuit court of Lincoln county at the time .the judgment was entered in this case?

Judge Hughes, the regularly elected, qualified and acting judge of that circuit, died in the summer of 1903, thereby causing a vacancy in that office. The Governor first appointed Robert D. Rogers judge to fill the vacancy, who resigned and left the office vacant again, and on August 19,1903, the Governor appointed H. "W. Johnson judge of that circuit to fill the second vacancy. Conceding Judge Johnson served under that appointment until the general election, on November 8, 1904, and was then elected to fill out the remainder of the term, which was December 31,1904, as claimed by appellants, Judge Johnson’s appointment and election were in strict compliance to the requirements of section 1631, Revised Statutes 1899, which is as follows:

“If the office of the judge of any court of record of this State shall become vacant from death, resignation, or from any other cause, such vacancy shall be filled by the appointment of the Governor until the next general election held after such vacancy occurs, when the same shall be filled by election for the residue of the unexpired term.”

According to this section, he was judge of the Eleventh Judicial Circuit without an intermission from August 19, 1903, to December 31, 1904. It is true he filled a portion of that term under his appointment, and the remainder of it under his election; but the two periods put together covered the residue of the term from August 19', 1903, to December 31, 1904.

Now, according to this record the judge made his finding of fact and gave his conclusions of law on November 21,1904, and, thereafter, on December 21, 1904, during the same term of court, he rendered the judgment complained of in this case. So it is seen, according to this record, Judge Johnson was judge of that circuit during the entire period that was taken up in the trial of the case, from the presentation of the pleadings to the granting of the appeal to this court, all of which was during the residue of Judge Hughes’ term of office.

We are, therefore, unable to concur with the views of counsel for appellants wherein he contends the trial, the finding of facts and the judgment dismissing this cause were not made and rendered during 'the same term- of office of the judge who tried the case.

The same conclusion was reached by this court in the case of State v. Gordon, 196 Mo. 185. The facts in that case were substantially as follows: Judge Davis who tried the case was at the time of the trial serving his first term as judge, and at that time had been reelected for a second term. He began the trial of the case before the expiration of his first term but did not complete it until the beginning of his second term. He had, however, duly qualified for the second term. And the point was made in that case by defendant, as is in this, that the entire trial did not take place during the term of office of the officer who began the trial, but contended that the trial was begun during the term of office of one officer and concluded during that of another officer, and the mere fact that Judge Davis happened to be the officer of both terms did not differentiate the question involved here from the one that would have been involved had some one else succeeded JudgeDavis. The court held, in effect, that defendant’s contention was untenable, and that the mere fact that a part of bis trial took place during the first term of Judge Davis’s office and remainder during his second term did not entitle him to a new .trial. In that case, as in this, the entire trial was before the same judge and court, and during the same term of that court, and that is all the law requires.

The case of State ex rel. v. Perkins, 139 Mo. 106, has no application to the facts of this case, because the judge in that case who began the case did not succeed himself, but tried to complete the trial after the expiration of his term and the term of Judge Perkins had begun.

n. The second question presentedl is, did the circiut court have jurisdiction to try and determine the public necessity of the proposed highway?

This question turns upon the meaning of section-9419, Revised Statutes 1899, which is as follows:

“In all cases of appeals being allowed from the-judgment of the county court, assessing damages, or for opening, changing or vacating any road, the circuit court shall be possessed of the cause, and shall proceed to hear and determine the same cmew; but no-commissioner shall be appointed by the circuit court, nor shall any appeal prior to the determination thereof in the circuit court operate as a supersedeas of the-proceedings of the county court.”

This section plainly provides for an appeal from the judgment of the county court, assessing damages or for opening, changing or vacating any road, and also provides that the circuit court shall proceed to try the case anew. In the case at bar, the county court entered a judgment ordering the road opened, and an appeal was taken from that judgment to the circuit court of Lincoln- county, and the latter court, in compliance to the plain command of that statute, tried the case anew. The circuit court not only followed the spirit of that statute but the letter of it also.

This identical question was presented to this court, in the case of Bennett v. Woody, 137 Mo. l. c. 380, and Brace, J., speaking for the court, used this language: “The respondent contends that the appeal should be dismissed, because the appeal from the county court to the circuit court was premature, in that it was. taken from the judgment on the assessment of damages in the-county court before any order was made establishing the road. We do not think this contention can be maintained. By section 7801, Revised Statutes 1889', it is provided that” (then follows the quotation of the section which is the same as section 9419, R. S. 1899, heretofore set out in full). Then he proceeds as follows: “By the plain terms of this statute an appeal is contemplated as well from the judgment of the county court assessing the damages as from the final judgment ordering the road to be established and opened, which can be made only after the county court shall have found that ‘the use to which said premises are sought to be appropriated is of a public use, that the proposed road ... is of sufficient public utility to justify the payment of damages awarded/ and the damages are paid to the owner or into court for his use.”

The statute in question authorizes an appeal from the order of the county court establishing and ordering the road to be opened, but does not authorize an appeal from the order of that court refusing to establish and open the road. [Aldridge v. Spears, 101 Mo. 400; In re Big Hollow Road, 111 Mo. 326.]

We are, therefore, of the opinion that an appeal does lie from the judgment of the county court, ordering a public highway opened, to the circuit court, and! the judgment of that court is affirmed.

All concur.