author: JAMES T. BLAIR, J.

text:
    Ex Parte DICK & BROTHERS QUINCY BREWERY COMPANY, Petitioner, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 1, 1921.
    1. CEBTIOEABI: Conflict in Opinions: Facts Outside of Becord. In a certiorari to a court of appeals, wherein it is asserted by relator that said court’s ruling that the evidence was sufficient to submit the case to the jury contravened prior decisions of the Supreme Court, evidence which does not appear in the opinion of the court of appeals cannot be considered.
    2. -: -: Other Decisions of Court of Appeals. On certiorari to a court of appeals, conflict of its opinion with other decisions of courts of appeals cannot be made the basis of quashing said opinion.

      3. -: -: Agency: Presumption Arising from Ownership: Question for Jury. Where a plaintiff was injured by an auto-truck in use for the delivery of beer and soda water, and there was no question that the driver was in the course of employment, and the real question at issue was whether the relationship of agency or master and servant existed between the driver and a brewery-company, and the Court of Appeals in its opinion says the evidence tended to show that a certain firm was conducting the business of distributing beer on commission, and hired the driver in that business; that the truck was owned by the brewery company; that it had been substituted by it for horse-drawn trucks; that it caused its own name to be printed upon it; that no charge was made against the firm for its use; that repair bills were paid by the brewery company; that it paid the rent on the building occupied by .the firm, and maintained at its own expense the refrigerating plant for cooling beer; that it fixed the sale price of beer; that containers, when empty, were returned to the company at its expense; that the firm acted for it in collecting notes and rents and buying saloon buildings for the company; that the company carried insurance on the truck and had previously settled a claim for damages arising out of an accident in which the truck had a part, and then rules that such evidence was sufficient to carry the case to the jury on the question whether the driver was the agent of the brewery company in delivering the beer, and further rules that said issue does not rest upon any mere presumptions arising out of the ownership of the truck, but upon direct testimony concerning the relations between the company and the firm, and also upon inferences of fact which the jury were entitled to draw from the evidence, its said rulings do not conflict with prior decisions of the Supreme Court.
    4. -: -: Instruction: Covering Whole Case. It will not be ruled that the Court of Appeals violated previous rulings of the Supreme Court in holding that the instruction given for plaintiff which undertook to cover the whole case contained every necessary element entitling plaintiff to recover against relator, including a requirement for a finding of the existence of such a relation between a firm and the truck driver who negligently caused the injury, on the one hand, and relator on the other, as to render relator liable for the driver’s negligence, where an examination of the instruction itself shows that it did in express words include such requirement and all other necessary elements.
    5. -: -: Evidence: Personal Injuries:, Members of Pamily: General Objection: Repetition. It is settled law in this State, and has been since Dayharsh v. Railroad, 103 Mo. 1. c. 577, that, in an action for damages for personal injuries negligently inflicted, it is error to admit, over proper and timely objection, evidence of the number of plaintiff’s children and who compose his family; and while the Court of Appeals so held, its ruling that a general objection was insufficient to save the point was error, and conflicts with prior decisions of the Supreme Court, in view of the fact that the evidence was incompetent for any purpose, and a general objection to it was timely made, and the general objection held inadequate by the Court of Appeals was made, not to a new question, but to a repetition of the question after the trial court had ruled the evidence admissible.
    6. EVIDENCE: General Objection: Exception. An exception exists to the rule that a general objection that certain evidence is irrelevant, incompetent and immaterial is too broad and sometimes constitutes no objection at all. It is that if the evidence objected to is not competent for any purpose a specific objection has no. office and a general objection is sufficient.
    7. -: -: Repetition. Once an objection has been seasonably made and overruled and exception saved, it is not necessary, in order to save the point, to continue to repeat the objection to the same testimony. On the contrary; persistence in a running fire of the same objection to the same testimony might become indecorous and disrespectful.
    8. -: -: Materiality Not Foreseen. The admission of incompetent testimony cannot be excused on the theory that at the opening of the trial the court cannot know that the testimony objected to may not prove competent in some way at later stages of the proceeding. If this were a true theory, then any evidence wholly incompetent can be admitted without error, since it is open to scarcely any other than a general objection, and no general objection would be good at the beginning of the trial.
    9. -■: Responsive Answer: Shown by Subsequent Testimony. The answer “ten children” is responsive to the question, “Who compose your family?” and it is not shown to be irresponsive by subsequent testimony showing it to be in part untrue.
    10. --- — •: Objections: Made by One of Several Defendants. When one of several defendants makes an objection to the- admission of testimony it is unnecessary for the others to repeat it in order to put themselves in position to base an assignment of error upon it on appeal.
    11. -: -- — : -: Motion for New Trial. Likewise, one of a group of defendants may, in his motion for a new trial, adopt an objection made by another defendant to a ruling of the trial court in admitting evidence and base an assignment of error thereon.

      Certiorari.

    Record quashed.

      Culver & Phillip, John S. Boyer, William B. Bostian, and R. R. Brewster for relator.
    (1) The trial court erred in refusing to give the peremptory instruction asked by the defendant at the close of plaintiff’s case, and, again, at the conclusion of all the testimony, and the decision of the Court of Appeals affirming its ruling in that regard is at variance with the latest controlling decisions of this court. Any presumption that might have arisen from the ownership of the truck in question and from other facts and circumstances was swept aside and destroyed by the direct and positive testimony introduced by plaintiff himself. Hays v. Hogan, 273 Mo. 1; Guthrie v. Holmes, 272 Mo. 215; Bollman v. Bullene, 200 S. W. 1068; Mockowik v. Railroad, 196 Mo. 571; Glassman v. Harry, 182 Mo. App. 308; Spellman v. Delano, 177 Mo. App, 33; Allen v. Coglizer, 208 S. W. 102, (2) Plaintiff’s instruction number two, which purported to cover the whole case was erroneous and prejudicial in that it lacks the essential elements of liability, and the decision of the Court of Appeals upholding this instruction is in direct conflict Avith the folloAving latest controlling decisions of this court: State ex rel. v. Ellison, 272 Mo. 583; Wojtylak Coal Co., 188 Mo. 283; Hall v. Coal Co.; 260 Mo. 367; Walker v. White, 193 Mo. App. 18; Traylor v. White, 185 Mo. App. 331; Humphries v. Railway, 191 Mo. App. 721; Pearson v. Lafferty, 193 S. W. 43; Kerr v. Bush, 198 Mo. App. 617; Dalrymple by Guardian v. Motor Co., 135 Pac. 91, 48 L. R. A. (N. S.) 424; Standard Oil Co. v. Anderson, 212 U. S. 215; Wyllie v. Palmer, 137 N. Y. 248, 19 L. R. A. 285. (3) The errors and omissions contained and made in plaintiff’s instruction number íavo cannot be corrected and supplied by other instructions, inasmuch as plaintiff’s instruction number .two purports to cover the whole case. Walker v. White, 192 Mo. App. 18; State ex rel. v. Ellison, 272 Mo. 583; Humphries v. Railway, 191 Mo. App. 721; Hall v. Coal Co., 260 Mo. 367. (4) The trial court committed error in permitting plaintiff to testify as to the number of his children and the ruling of the Court of Appeals upon this point is in direct conflict with the following latest controlling decisions of this court; Hecke v. Dunham, 192 S. W. 120; Dayharsli v. Railway, 103 Mo. 570, 23 Am. St. 900; Williams v. Railway, 123 Mo. 573; Mahaney v. Railway, 108 Mo. 191; Stephens v. Railway, 96 Mo. 207. (5) Where appellant has once squarely objected to the introduction of certain evidence, it is not necessary that he follow it up with repeated objections on the same point. Bailey v. Kansas City, 189 Mo. 512; Wabash Ry. Co. v. Cockrell, 192 S. W. 446; Schierbaum v. Schemme, 157 Mo. 1; Gold v. Jewelry Co., 165 Mo. App. 154, Reynolds v. Publisher, 155 Mo. App. 612.

      Duvall cG Boyd for respondents.
    (1) This court will not, under its rules governing applications for writ of certiorari, notice petitioner’s charge that “ the demurrer to plaintiff’s evidence should have been sustained by the trial court.” State ex rel. Scullin v. Robertson, 187 S. W. 34; State ex rel. Dun-ham v. Ellison, 213 S. "W. 459. (a) This court, for the facts in the case, will go only to the opinion of the Court of Appeals, and will not review the record to determine whether or not a demurrer should have been sustained. State ex rel. Dunham v. Ellison, 213 S. W. 459; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S. W. 804; State ex rel. Const. Co. v. Reynolds, 214 S. W. 369. (b) The Court of Appeals found that “ there was ample evidence from which the jury could find that the delivery of beer, in which the truck was engaged at the time of the injury, was the business of the brewery company,” and that point is not before this court. The cases of Hays v. Hogan, 273 Mo. 1, Guthrie v. Holmes, 272 Mo. 215, and Bolman v. Builene, 200 S. W. 1068, cited by relator, and other similar cases cited by it, are not controlling in this case. As pointed out by the Court of Appeals in its opinion, there Avas proof of abundance of facts from Avhich the jury could infer that the driver of the truck, although employed by Davis & Sons, was in fact .the servant of appellant, Dick & Bros. Lockwood v. Am. Exp. Co., 76 N. H. 580; Epstein v. Ruppert, 29 Md. 432; Sandifer v. Lynn, 52 Mo. App. 553; Diel v. Henry Zeltner Brewing Co., 51 N. T. Supp. 930; Williams v. National Cash Register Co., 157 Ky. 164; Usher v. Tel. Co., 122 Mo. App. 98; Banks v. Southern Exp. Co,, 53 S. E. 156. (2) Plaintiff’s instruction number two, which submitted the issuable facts, was correct. Counsel for petitioner complained that it did not require the jury to find that “ the driver of the truck, at the time and place in question, Avas the agent, servant or employee of the petitioner,” and is therefore erroneous. The instruction did better than that. It required the jury to find facts, which, if true, constituted him the agent of petitioner. (3) The Kansas City Court of Appeals correctly ruled against relator the contention that the trial court committed error in allowing the plaintiff to answer the question “who compose your family?” No objection was made to that question by anybody. The question was asked and answered at the outset of plaintiff’s testimony and at the beginning of the trial. The question “ Who are the members of your family?” was asked by counsel Avho represented Davis & Sons', but who did not represent the brewery company said: “ We object to it as being incompetent, irrelevant and immaterial.” That question was not ansAvered and the one now complained of was then asked and answered without any objection by any one.- Even if it could be said that the questions were the same, but they were not, the objection made by counsel for Davis & Sons amounted in law to no objection. Fuller v. Robinson, 230 Mo. 22; Stevens v. Knights etc., 153 Mo. App. 196; Renfrew v. GoodfelloAAr, 162 Mo. App. 333. (b) Such an objection would not be good unless the evidence elicited self-evidently could serve no purpose in the case. Surely it cannot be said that at the very beginning of the trial, the trial court should have known that the evidence elicited by the question was absolutely immaterial and would serve no purpose .whatever in the trial of the case. Hoav could the trial court know at that stage of the case but that the members of his family Avould be introduced to describe plaintiff’s injuries and sufferings, or for some other, material purpose? (c) But no objection Avas made by anyone to the question which Avas answered; nor Avas any motion made to strike out the ansAver. Nor Avas the point preserved in relator’s motion for a neAV trial. The only complaint made by the relator in its motion for a new trial as to the admission of evidence Avas in these Avords: “ The court erred in admitting over the objection of this defendant, incompetent, irrelevant and immaterial evidence offered by the plaintiff.” (4) Relator has not sliOAvn and cannot sIioav that in tin; opinion and judgment of the Court of Appeals in the case of Vaughn y. Davis et al., it announced any general principle of law contrary to the latest announcement of this court upon the subject, or, on a given state of facts, announced and applied any conclusion of laAV contrary to a conclusion of this court on a similar state of facts, and the writ of certiorari should not have issued in this case. State ex rel. Peters v. Reynolds, 214 S. W. 122.
   JAMES T. BLAIR, J.

Certiorari. The record brought here by the Avrit is that of the Kansas City Court of Appeals in Vaughn v. Wm. P. Davis & Sons et al., 221 S. W. 782. Vaughn was struck and injured by an automobile truck in use for the delivery of beer and soda water in the City of. St. Joseph. He sued W. P. Davis & Sons, of St. Joseph, and Dick & Brothers Quincy Brewery Company, an Illinois corporation, and had judgment. The brewery company, relator here, alone appealed. The Court of Appeals affirmed the judgment.

Relator contends the opinion rendered in the case is in several respects in conflict with decisions of this court. One of these contentions goes to the ruling that there was sufficient evidence to take to the trial jury the question whether relator was liable for damages resulting from the truck driver’s negligence. This makes it necessary to set out the facts stated in the opinion of the Court of Appeals in connection with the ruling mentioned. These facts are as follows:

“There was no question but that the driver was in the course of his employment, driving the truck in the business of delivering beer, for which it was intended and used; nor is there now any contention over the fact that he negligently ran plaintiff down and injured him permanently and seriously. The great contest is over the question whether the relationship of agency or master and servant can be said to have existed between the driver and the brewery company so as to render the latter liable for the former’s negligence. Or, in other words, is the evidence such that the jury can say such a relationship did exist?
“The record discloses that at the time of the injury, and for four years prior thereto, Davis & Sons were distributing agents for the brewery company in the City of St. Joseph, and were also engaged in the manufacture and sale of soda water. They occupied a certain building at Main and Isadore streets on which the brewery company paid the rent, and in it were stored the shipments of beer which the brewery regularly made to St. Joseph. In it the brewery company maintained a refrigerating plant and paid the expense of refrigeration, so as to keep the beer at the proper temperature until it was delivered to the saloons and possibly elsewhere throughout the city. The brewery company paid for the wholesale and retail liquor licenses which were required of Davis & Sons. The brewery company fixed the price at which the beer, which Davis & Sons, distributed, was sold. Davis & Sons sold and delivered the beer from said warehouse or depot, collected the money for it, deducted their commission, and remitted the balance to the brewery company, and the empty barrels and cases were returned to it at Quincy at the latter’s expense. In addition to distributing beer, Davis & Sons collected rents and notes due the brewery company, representing it in making contracts whereby the retailer agreed with the brewery company to handle the brewery company’s beer, and in the buying of saloons for the brewery which were licensed in the name of individuals, but which belonged to the company. The compensation Davis & Sons received for all these things was the commission they got on the beer sold.
“Formerly, the beer had been delivered in wagons furnished by the brewery company, but about a year before plaintiff’s injury the brewery company in lieu thereof sent the truck in question to be used in the delivery of beer by Davis & Sons, and the purpose was to ‘expedite the delivery of’ the brewery company’s beer in St. Joseph. At the direction of the company Davis & Sons had painted on one or both sides of the truck the sign ‘Dick & Bros. Quincy Brewing Company,’ the brewery company bearing the expense thereof. When it was necessary to repair the truck the expense thereof was borne by the brewery company. Also, at the direction of the company, Davis & Sons took out two policies of indemnity insurance, the premiums on both of which were paid by the company. One of these policies insured the the brewery company against loss or damage to the truck caused by collision, and the other insured the brewery company against liability on account of injuries to any person by the truck in question. After these policies were issued, but prior to plaintiff’s injury, the truck was involved in another accident, claim for which was settled by ah attorney representing the brewery company. This evidence in relation to the policies and the settlement of a claim thereunder was admitted solely as bearing on the relationship existing between the brewery company and the truck, together with the business in which it was being used. The foregoing facts were elicited from W. F. Davis, whom plaintiff put upon the stand, and who, when asked as to the arrangements between Davis & Sons and the brewery company with reference to sending the truck to them, replied:
“ ‘They (the brewery company) sent it here for to use in their business.’
‘ ‘ And when asked why they sent it, he replied:
“ ‘They sent it here to be used in hauling and delivering beer. Q. Whose beer? A. Dick & Bros., Quincy, Ill.’
“Under cross-examination, however, by the brewery company the following was brought out: That the driver of the truck was employed ‘through’ W'. F. Davis & Sons, and they paid him; that Dick & Bros. Brewery Company sold beer to no one in St. Joseph except to Davis & Sons; that they, Davis & Sons, bought f. o. b. Quincy, Ill. In answer to thé question, ‘Whose beer is it which you buy when it is loaded on the train at Quincy?’ He said, ‘It is supposed to be ours.’ It was further elicited by defendant in cross-examination of Davis, and through other testimony offered by the appellant herein, that Davis & Sons delivered the beer by means of this truck, which was owned by the brewery company, but was ‘loaned,’ without charge, for use as a matter of accommodation and custom between them, and that Davis & Sons were also permitted to use the truck in delivery of their soda water; that regardless of whether Davis & Sons sold the beer they ‘ordered’ or whether they collected or did notnollect.for it, they owed the amount they ordered. It was elicited, however, that when they ordered beer they ‘just sent in an order for it.’ When asked what terms are stated, witness answered, ‘No terms at all.’ When asked what were the agreed terms between them, he said, ‘We sell the beer and'send them the invoice price.’ When asked if Davis & Sons sold a barrel of beer to a man in St. Joseph who never paid for it, would they ‘have to pay for that beer just the same to Dick Bros.?’ he answered, ‘Well, yes; we do.’ When asked who directed the driver of the truck where to go and prescribed his duties, he said. ‘W. F. Davis & Sons, I suppose.’ And when asked, ‘Did Dick Bros, have anything whatever to do with deciding who should drive the truck, where he should go, what he ought to do, or have anything to do by way of directing his actions?’ he replied, ‘None.’ ”

I. The Court of Appeals held the evidence sufficient to support the jury’s finding that relator was responsible for the driver’s negligence. Relator contends this ruling necessitates the quashing of the record.

(1) Relator sets out some things as evidence which do not appear in the opinion. These cannot be considered. [State ex rel. v. Ellison, 278 Mo. l. c. 47; State ex rel. v. Reynolds, 226 S. W. 564; State ex rel. v. Ellison, 266 Mo. l. e. 610, 611.]

(2) Conflicts with decisions of the courts of appeals cannot be made the basis of a judgment quashing the record under examination.

(3) Relator contends the ruling conflicts with Hays v. Hogan, 273 Mo. l; Guthrie v. Holmes, 272 Mo. 215; Mockowik v. Railroad, 196 Mo. 550, and Bollman v. Bullene, 200 S. W. (Mo.) 1068. The gist of relator’s argument in this connection is that Vaughn’s right to have, the issue in question submitted to the jury depended solely upon a presumption arising from the ownership of the truck, and that this presumption was destroyed by other evidence. In the Mockowik case the plaintiff: had testified that he stepped upon a railroad track in front of a locomotive which he saw and at a place where he knew moving locomotives were likely to be encountered. He detailed all the facts. The court ruled his testimony showed him guilty of contributory negligence as a matter of law, and no presumption of ordinary care on his part could be invoked to defeat the conclusive force of the facts to which he had testified. In the case of Hays v. Hogan, supra, plaintiff had been injured by an automobile driven by the son of the owner. Plaintiff relied upon the ownership of the car by the father and the fact that the son was driving to show the latter was acting within the scope of presumed authority from the father. This court, at page 24, said, and on this relator now relies, that the mere “ownership of an automobile purchased by the father for the use and pleasure of himself and family does not render him. liable in damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the-same on the public highway, in furtherance of his own business or pleasure.” The portion of the opinion in Guthrie v. Holmes relied upon by relator is as follows, page 233: “Proof that the automobile belonged to defendant and was being operated by defendant’s regularly employed chauffeur was a prima-facie sufficient showing that the chauffeur was acting within the scope of his employment, and the burden of evidence shifted to the defendant to show the contrary. . . . This presumption cannot stand in the face of positive proof of facts to the contrary; and where the plaintiff has relied upon such presumption and it has been opposed by positive evidence to the contrary, he must then produce evidence tending to disprove the defendant’s positive testimony, or his prima-facie case will fail. The presumption in question is rather a frail thing. It is unlike an inference that arises upon the proof of certain facts, and which is necessarily true if the facts are true. It rests upon the facts that the automobile was owned by the defendant, and that the chauffeur who was operating it was in the general employment of the defendant; neither one nor both of which tends to prove the chauffeur was engaged in the owner’s business. [Berry on Law of Automobiles (2 Ed.), sec. 615, p. 694.]” The decision in Bullman v. Bullene follows the decisions from which we have quoted. We do not think relator makes out a case of conflict with these decisions. The Court of Appeals states in its opinion that plaintiff’s case, on this issue, “does not rest upon any mere presumptions arising out of the ownership of the truck, but upon direct testimony concerning the relations existing between the brewery company” (relator) “and #Davis & Sons, also upon inferences of fact which the jury were entitled to draw7 from all the evidence in the case. ” The question became one whether Davis & Sons were conducting the business of distributing beer for themselves and independently of relator, or in distributing beer acted as representatives and agents of relator and acted for it. The evidence tended to show the truck was owned by relator; that it had been substituted by relator for horse-drawn trucks previously furnished by relator for the same-use; that relator caused its own name to be painted upon it when it was put in service; that no charge was made against Davis & Sons for its use; that repair bills were paid by relator; that relator paid the rent on the building occupied by Davis & Sons, and maintained, at its own expense, the refrigerating plant used for cooling the beer; that relator fixed the sale price of the beer; that containers, when empty, were returned to relator at its expense; that Davis & Sons acted for relator in collecting notes and rent and in buying saloon buildings for relator; that relator carried indemnity insurance on the truck in question and had previously settled a claim for damages arising out of an accident in which the truck had a part. W. F. Davis testified that relator furnished the truck for use in relator’s business and in the distribution of relator’s beer. This and other evidence appearing in the opinion tended to show, as a fact, that W. F. Davis & Sons were mere local agents acting for relator in St. Joseph. On cross- . examination Davis qualified his testimony in some respects. We do not think it can be said, as a matter of law, his testimony on cross-examination, vague and halting in several respects, destroyed the testimony he had already given. It was for the jury to say when he told the truth, in all the circumstances. The point is ruled against relator.

II. In the Court of Appeals plaintiff’s principal instruction was attacked. The chief objection relator urged was that, the instruction purported to coyer |.]ie case authorized a finding for plaintiff without requiring the jury first to find the existence of such a relation between Davis & Sons and the truck driver, on the one hand, and relator, on the other hand, as to render relator liable for results of the driver’s negligence. The Court of Appeals held this objection was not well-founded, and this ruling is said to conflict with decisions of this court. The Court of Appeals did not deny or question the rule that an instruction purporting to cover the case and authorize a verdict must require a finding of all essential facts.' On tlie contrary, it recognized and applied that principle and held that the instruction conformed to it. The instruction required the jury, before finding for plaintiff, to find, among other things, that Davis & Sons, at the time of plaintiff’s injury, were “engaged in the business of delivering and distributing for the defendant, Dick & Bros. Quincy Brewery Company, in said city of St. Joseph, the product hereinabove referred to as Dick & Bros. Quincy beer and . . . that on said date the defendant, Dick & Bros. Quincy Brewery Company, for the sole purpose and consideration of aiding and furthering its business in said City of St. Joseph, and of furthering the delivery and distribution, through defendants W. P. Davis & Sons, of its product known as Dick & Bros. Quincy beer, owned, kept, maintained and furnished to defendants, W. P. Davis & Sons, the . . . truck mentioned in evidence, and instructed, authorized and empowered said W. P. Davis & Sons to use, run and operate said . . . truck, or cause the same to be used, run and operated for the purpose of delivering” the product of the brewery company, and that Millikel (the driver) had been employed by Davis & Sons and was operating the truck “in and about the business of delivering and distributing the product of Dick Bros. Quincy Brewery Company known as Dick ■ & Bros. Quincy beer, ’ ’ and that Millikel was guilty of certain acts of negligence by reason of which plaintiff was injured by the truck, and that plaintiff was then in the exercise of ordinary care.

We think the Court of Appeals was right in ruling that this instruction requires, before verdict for plaintiff, a finding of facts which, show such a relation of the relator to the driver as to render relator liable for the driver’s negligence, if other facts predicated are found.

The outstanding issue of fact was whether Davis & Sons were acting for themselves or for relator in distributing beer. If the jury found that relator furnished the truck to Davis & Sons for use in its, relator’s, business, and that Davis & Sons were, at the time, actually using the truck in distributing relator’s beer, not for themselves, but “for the defendant, Dick & Bros. Quincy Brewery Company,” the issue was covered and the fact resolved against relator. We agree with the Court of Appeals that the instruction might have been more brief and more clear, but also agree that it was not reversibly erroneous when tested by the principle and decisions invoked by relator.

III. In the opinion of the Court of Appeals appears the following:

“The evidence complained of consists of an answer made by plaintiff, at the outset of his testimony, to a question as to who composed his family. In order that it may appear just as it took place, we set out the record as follows:
“ ‘Q. What is your occupation? A. Farming.
“ ‘Q. Are you a married man? A. Yes, sir.
“ ‘Q. Who are the members of your family?’
“(At this point counsel who appeared for Davis & Sons said: ‘We object to it as being irrelevant, incompetent and immaterial.’ The court: ‘Answer the question.’ To which ruling of the court defendants at the time excepted.
“ ‘Q. Who compose your family? A. Ten children.
“Q. How many are at home with you? A. Two, now,’ ”

The Court of Appeals ruled that there was no objection made to the question which the witness actually answered; that the objection was made to a question the witness did not answer. A glance at the excerpt from the opinion will make the ruling clear. Relator contends (1) the evidence was inadmissible, and (2) the ruling referred to conflicts with several decisions of this court. That, such evidence ought not to be admitted is settled law in this State (Dayharsh v. Railway, 103 Mo. l. c. 577), and the Court of Appeals did not hold otherwise.

With respect to relator’s second point, this court has held that once an objection has been seasonably made and overruled and exception saved it is not necessary, in order to save the point, to continue to repeat the objection to the same testimony, (Schierbaum v. Schemme, 157 Mo. l. c. 22), and that “'the persisting in a running fire of the same objections to the same precise evidence may become indecorous and disrespectful.” [Bailey v. Kansas City, 189 Mo. l. c. 513.] In the instant case the rule is peculiarly applicable. The question answered was not a new question. It was no more than a repetition (immediately following the ruling, objection and exception) of the question ruled upon, and the repetition was made merely to refresh the memory of the witness so that he might give the evidence just ruled admissible by the trial court. This ruling of the Court of Appeals on this point is in conflict with the principle in the cases last cited.'

Respondents seek to justify the result of the ruling by other arguments. They suggest the objection was too broad and constituted no objection at all. Such an objection sometimes is held to be so. “But an exception exists to the rule. If the evidence objected to is not competent for any purpose in the case, a specific objection has no office and the general objection of irrelevancy, immateriality, etc., will do.” [Bailey v. Kansas City, supra, l. c. 512; State ex rel. v. Diemer, 255 Mo. l. c. 350.] Neither did the Court of Appeals put its ruling on that ground. On the contrary, it, in effect, said it did not do so. It is suggested that it was not to be expected that in the opening of the trial the trial court could have known that the testimony objected to might not prove competent in some way in later stages of the proceeding. If this he an adequate answer, then any incompetent evidence, provided it he wholly incompetent, can be admitted without error, since such evidence is open to hardly any other than a general objection, and no general objection would be good in the beginning of a trial under the rule contended for. It is further suggested that the answer, “ten children,” which plaintiff made to the question asked was shown by subsequent testimony not to be responsive to the question, and there was no motion to strike out. The answer was entirely responsive. The subsequent testimony may have shown it to have been in part untrue, but did not show it to lack responsiveness to the question. It is further argued that the objection was not made by relator, but by counsel for Davis & Sons, and cannot now be relied upon by relator. The Court of Appeals in its opinion did not take that position. It points out that the defendants excepted to the ruling and construed the word “defendants” to include all defendants. This is the proper construction. When one of several defendants makes an objection it is unnecessary for another to repeat it in order to put himself in position to base an assignment of error on it on appeal. In such case an exception to the ruling on the objection is enough, though the ex-ceptor did not himself utter the words in which the objection is made. It is further objected that the motion for new trial did not cover the matter. The Court of Appeals did not so hold. The ground of the motion which is drawn in question by this suggestion, reads: “The court erred in admitting over the objection of this defendant, incompetent, irrelevant and immaterial evidence offered by the plaintiff.” It is said the word “this” may have confined the court’s attention to objections made by relator’s counsel. It is clear relator could not have complained of the admission of the evidence unless it was admitted over its objection. Every ground of a motion for a new trial, to.justify such a complaint in an appellate court, must have in it, explicit or implicit, the very thing which the suggestion now being considered brings forward to exclude the ruling in question from consideration. To sustain this argument would seem to render it impossible for one of a group of defendants to adopt an objection made by another. We do not think such a rule would be desirable. There is no such rule now. As already pointed out, relator did adopt the objection and saved its exception to the ruling against it. It thereby became relator’s objection and is covered by the motion.

We are of the opinion that the ruling of the Court of Appeals on this question of the admission of the evidence referred to in the beginning of this paragraph requires that the record be quashed. It is so ordered.

All _ concur, except Elder, J., not sitting.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. CITY OF JEFFERSON v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    April 1, 1921.
    1. DEMURRER: General Grounds: Failure to Brief: Abandonment. The general grounds of a demurrer in an original proceeding in the Supreme Court will be considered as abandoned if neither briefed nor urged. If the brief does not hrge the general ground that the city did not have power to issue bonds for the purposes for which they were issued, but the objections are confined to irregularities in the issuance of them, the question of the power of the city to issue them will be considered as abandoned.
    2. ISSUE OF BONDS: Duty of State Auditor: Reviewable Error. While it is the duty of the State Auditor to see to it that the requirements of the applicable statutes have been complied with before registering bonds issued by a city, his errors in judgment are reviewable by the Supreme Court in mandamus.
    3. -: To Fay Judgments: Notice: Describing Judgments. The notice advising the voters that the purpose of the special election was to determine whether the city should issue its bonds in a named amount, for the purpose of funding that much of the city’s judgment indebtedness, was not insufficient because it did not describe the judgments.

      4. -: -- — : Date of Judgment Misstated. Where judgment against the city was rendered at one term, and on motion was set aside, and at a subsequent term another judgment for the same amount was rendered, and throughout the record it is admitted that, the judgments were for the same indebtedness and that the voters voted for an issue of bonds to pay the said indebtedness, the fact that the ordinance, passed after the election and authorizing the issuance of the bonds, in its preamble described the judgment entered at the first term, does not invalidate the bonds.
    5. -: Tax Ordinance: Per Cent Tax. Although the ordinance which undertakes to levy a tax to pay the interest and principal of the bonds issued by the city does not levy a per cent tax on all the property, yet if it does say that there shall be annually levied a tax which shall raise a stated amount for each year, and these amounts are fully sufficient to meet the interests and the sinking fund, it meets the requirements of the Constitution. But even if it were an insufficient levy of a tax, that would not invalidate the bonds, because the city can be compelled, by the self-enforcing provision of the Constitution, to provide for the payment of the interest and principal as they become due.
    6. -: Indebtedness: Presentation of Written Claims. A contention that the statute (Sec. 8313, R. S. 1919) required the claims against the city for an indebtedness should have been presented in writing verified by the claimants, is without force where the record shows the indebtedness was reduced to judgments in the circuit court; for all defenses to the claims were foreclosed by such judgments.
    7. -: Judgments: Defective Process: Waiver: Appearance. The question whether process should have been served upon the mayor rather than the city clerk, in the suit by a creditor to recover judgment against the city, dropped out of the case when the attorney for the city appeared and filed answer.
    8. -: —-: Questioning Authority of Attorney for City. The city is the only party that can question the authority of an attorney who appeared and filed an answer to a creditor’s petition to recover judgment against the ,eity.
    9. —:-: -: -: Appointment of Acting City Attorney. Under an ordinance providing that in case of his absence from the city, the city attorney may, with the approval of the mayor and at his own expense, appoint some competent attorney to act in his stead during such absence, an attorney appointed by the city attorney, whose appointment is approved by the mayor, has authority to represent the city in a suit brought by a creditor to recover judgment against the city for a debt due. Section 18 of Article 2 of the Constitution is no authority for questioning the acts of an attorney so appointed.
    ¡Mandamus.
    Alternative writ made permanent.

      Leonard M, Bice, for relator.
    (1) The bonds were issued under authority of and pursuant to Sections 1042, 1070 and 1071, Revised Statutes 1919. (2) The notice was sufficient. Sec. 1071, R. S. 1919; State ex rel. Clark Co. v. Hackmann, 218 S. W. 318; State ex rel. v. ITackmann, 273 Mo. 670. (3) It is true that in the preamble of the ordinance providing for the issuance of the bonds herein sought to be registered, the date of the judgments are referred to as “June 19, 1917,” and that these judgments were subsequently set aside. However, other judgments were procured against relator, which said judgments, as pleaded in relator’s petition for the alternative writ, and which allegation, by reason of respondent’s demurrer, stands admitted, were, “in all respects, including amounts, like the judgments rendered in favor of said companies on the said nineteenth day of June, 1917.” This, at most, is a mere clerical error,- and in nowise affects the validity of the bonds. (4) Even if the council had made an insufficient levy, or had failed to malee any levy whatever, the bonds would not be invalidated for that reason, since under our Constitution such levy can be made at any time, and if the city fails in its duty in this regard, mandamus .will lie, and such .levy can be directed made at any time en masse .for all past due interest and principal. State ex rel. v. Gordon, 217 Mo. 103; Evans v. McFarland, 186 Mo. 703; Black v. Early, 208 Mo. 281; East St. Louis v. People, 124 111. 655; East St. Louis v. Amy, 120 TJ. S. 600; State ex rel. v. Hackmann, 275 Mo. 5.34; Lamar v. City of Lamar, 128 Mo. 188. (5) The judgments against relator city sought to be funded by the issuance of the bonds in question are conclusive against it as to the validity of the debts merged into the judgments. Haishman v. Knox Co., 122 TJ. S. 316; State ex rel. v. Eainey, 74 Mo. 234; Scotland-Co. v. Hill, 140 U. S. 41; Sioux City Ey. Co. v. Osceola Co., 45 Iowa, 168; Ibid, 52 Iowa, 26; Jones v. Hubbard. 193 Mo. 165; Howard v. City of Huron, 62 L. E. A. (S. D.) 493; Edmonson v. Ind. School Dist., 98 Iowa, 639. (6) It is true that service was not had upon the mayor. “Jurisdiction over the .person can be acquired by service of the person according to law, or by consent, expressed or implied. Implied consent consists in doing such things as would indicate a willingness for the court to try the case — i. e., as filing answer or doing some sim.ilar thing without questioning the jurisdiction of the courts.” Mining & Milling Co. v. Eire Ins. Co., 267 Mo. 618; Eingling v. Hempstead, 193 Fed. 603. (7) Eespondent, in paragraph 9 of his demurrer, challenges the authority of Fenton E. Luckett to act as city attorney upon behalf of relator. This point is untenable. Section 9, Ordinance No. 2, Eevised Ordinances of the City of Jefferson, 1903. Luckett was at least de facto city attorney. Harbaugh v. JYinsor, 38 Mo. 327; Edwards v. City of Kirkwood, 162 Mo. App. 576; State v. Douglass, 50 Mo. 593; State ex rel. Lemon v. Buchanan County Board, 108 Mo. 235; Wilson v. Kimmel, 109 Mo. 260; Kilev v. Forsee, 57 Mo. 390; Akers v. Kolkmever & Co., 97 Mo. App. 520; Simpson v. McGonegal, 52 Mo. Appl 540; Usher v. Tel. Co., 122 Mo. App. Ill; Hilgert v. Asphalt Pav. Co., 107 Mo. App. 38.

      Jesse W. Barrett, Attorney-General, and Robert J. Smith, Assistant Attorney-General, for respondent.
    (1) It is the duty of the State Auditor to determine whether there is authority of law for the issuance of the bonds, and whether all' the conditions of the statutes applicable thereto have been complied with in the particular issuance of bonds presented for registration. Secs. 1063, 1068, E. S. 1919; State ex rel. Dexter v. Gordon, 251 Mo. 303; State ex rel. Pike County v. Gordon, 268 Mo. 326. (2) The voters of the city should be advised by proper notices of the election giving* the names of the holders of the judgments, or a sufficient description of the judgments to properly advise them as to the amount of the judgments and the amount of the bonds to be issued to pay the particular judgments. The voters- should be advised of the particular purpose of said election. Secs. 1070, 1071, R. S. 1919. (3) There must be valid judgments against the city. Said judgmust be properly described. There being no judgment rendered as of June 19, 1917, nor at the said June term, 1917, of the Circuit Court the judgment as of that date having been set aside and for naught held, and new and entirely different judgments rendered at a different term. Therefore no valid judgments existed as recited by the ordinance. The Auditor found that the law had not been complied with, and he was justified in refusing* to register said bonds. Secs. 1063,1068, R. S>. 1919; State ex rel. v. Cordon, 251 Mo. 311. (4) There must be a levy of an annual tax sufficient to pay the interest on such indebtedness and also to provide a sinking fund for payment of the principal. Section 12, Art. 10, Mo. Constitution; Secs. 8316, 8656, R. S. 1919. (5) There should be proper showing that the claims and amounts against the city for which judgments were rendered had been properly presented in writing and verified by all of the claimants or their agents, since their claims did not arise ex delicto. Sec. 8313', R. S. 1919; Haggard v. City of Carthage, 168 Mo. 129. There was no valid judgment against said city because process should have been served upon the Mayor of said city and not upon the clerk as was done in this instance. Cloud v. Pierce, 86 Mo. 357. (7) There was a vacancy in the office of city attorney because of the absence of the elected city attorney from May, 1917, to January, 1919, and the purported acting city attorney was without authority to bind the city. See. 18, Art. 2, Mo. Constitution; Sec. 1.1, City Ordinance.
   GRAVES, J.

Learned counsel for respondent concedes that relator has clearly stated the facts in its application for our writ. Respondent’s counsel, the Attorney-General, waived the formal issuance of our alternative writ, of mandamus, and the application for such writ was taken as and for the alternative writ. To this respondent filed a demurrer, and the questions are of law, rather than of facts.

By an election held on the 24th day of August, 1920, the City of Jefferson authorized the issuance of $22,000 in bonds, with which to take up a part of certain alleged judgment indebtedness of such city. These bonds respondent refused to register, and by this action in mandamus, the city seeks to compel their registry. The city, through its city attorney, in its application here, alleges all the facts, both those favorable and those unfavorable. These allegations of facts .are accompanied with (as exhibits) all the records of the city and the circuit court in the whole proceeding. The demurrer filed by counsel for respondent will suggest the points for discussion, without an outline in this statement of the facts pleaded in the application. This demurrer reads:

“Comes now the respondent, George E. Hackmann, State Auditor of the State of Missouri, and demurs to relator’s petition herein, and as grounds therefor assigns the following, to-wit:
“1. Because the said petition does not state facts sufficient to constitute a cause of action against the respondent herein:
“2. Because said petition and all the matters and things therein stated and set forth are not sufficient in law to entitle the relator to the relief prayed for or any other relief.
“3. Because it appears from the face of the petition that no mention of the judgments to be paid is made in the ordinance submitting, the proposition to the voters, nor in the notices given by the clerk of the city, giving the names of the parties in whose favor the judgments were rendered, nor the dates nor the amounts thereof, and the voters of said City of Jefferson were not advised by said ordinances and notices as to who the judgment creditors were, nor the amounts of said judgments.
“4. Because the petition shows upon its face,, in relator’s Exhibit No. 6, that the indebtedness of said city amounts to approximately $66,217.69, evidenced by judgments as of date June 19, 1917, in favor of the Jefferson City Light, Heat & Power Company against the City of Jefferson in the sum of $41,266.80, and in favor of the Capital City "Water Company against the said Civy of Jefferson in the sum of $24,950.89, and relator’s petition shows that said judgments were by consent of bodi parties, plaintiff and defendant, therein, set aside and for naught held, and that no judgment or judgments were rendered against the said City of Jefferson on said date, nor in said amount, nor at said June, 1917, term of the Circuit Court of Cole County, Missouri.
“5. Because the said purported judgment sought to be paid by the issuance and sale of the bonds sought to be issued herein were invalid judgments after having-been set aside on November 17, 1917.
“6. Because relator’s petition shows upon its face that the said City of Jefferson, before or at the time of submitting the proposition of said bond issue, to the vote of the people, did not provide for a levy of an annual tax sufficient to pay the interest on such indebtedness as it should fall due, and failed to' provide for a sinking fund for payment of the principal thereon within the twenty years from the contracting of the same as provided by Section 8316, Revised Statutes" 1919.
“7. Because relator’s petition shows upon its face that Section 8313, Revised Statutes 1919, was not complied with by the relator in that no showing is made that said claims and amounts against said city were presented in writing and verified by oath of the claimant or its agent,
“8. Because relator’s petition shows upon its face that the judgments described therein were void because service of process therein was had upon the clerk of the City of Jefferson, and not upon the mayor of such city, as provided by law.
“9. Because the petition shows upon its face that F. E. Luckett, purported to be the then acting City Attorney, was not legally authorized to act as such. The leaving of the State of Missouri and of the United States by the City Attorney, without personally devoting his time to the performance of the duties of his office for an indefinite period, vacated .the office of city attorney, or subjected said attorney to removal from office under Section 18 of Article II of the Constitution of the State of Missouri.
“Wherefore, respondent herein prays judgment of the court upon this demurrer and that he be discharged from further proceedings in this case.”

As the facts stand conceded by this demurrer, we can best discuss the facts charged in the application for our writ, in connection with the points made by the demurrer. Such will be our course, and this will suf- • fice for the preliminary outline of the case.

I. It has long been ruled that points made in the course of the trial may be abandoned here, by failure to brief or urge such points. The same would apply to pleadings in original proceedings here. The general grounds of the demurrer have been somewhat abandoned here by the points made and presented in the brief for the respondent. This brief does not urge that the City of Jefferson had no authority to issue bonds to the extent of $22,000 for the purpose for which these bonds were being issued. The objections go to irregularities, rather than the power of the city. The general grounds of the demurrer might raise such question, had it been followed up in this court. The points’ tirged in the brief here do not follow up this general question, but specifically take up the questions relied upon by respondent. Those questions, and those only, are for our consideration. All others are presumed to have been abandoned, for want of substance. They were no doubt abandoned in view of our recent ruling in State ex rel. Clark Co. v. Hackmann, 280 Mo. 686.

II. The respondent first urges that it is his duty under the law to see that, the - conditions of the applicable statutes have been complied with, before he should register the bonds. This is his duty, but if he errs in his judgment as to whether or not the facts show such compliance, his act in refusing to register is reviewable here upon mandamus. So runs a long list of cases in mandamus against our several state auditors.

III. In the second place it is urged by the respondent that the notice of the special election is insufficient, in that it did not specify who held the judgments against the city. The notice advised the voters that the purpose of the special election was to determine the question as to whether or not the city should issue $22,000 in bonds, for the purpose of funding that much of the city’s judgment indebtedness. As a fact there were two judgments against the city, which aggregated over $66,000. One was in favor of the Jefferson City Light, Heat & Power Company, and the other in favor of the Capital City Water Company. We are cited to Sections 1070 and 1071, Revised Statutes 1919, upon this contention. These sections do not require the notice to describe the judgments, and this contention must be ruled against the respondent.

IV. The facts are that the city, being unable to pay what it owed to these two public service corporations, and desiring to have'the amounts of indebtedness fixed, by resolution of the city council May 7, 1917, requested such corporations to reduce their claims for service to the city to judgments. Pursuant to such requests of the city these corporations filed their suits, returnable to the June term, 1917, of the Cole County Circuit Court. At this term the two corporations obtained their respective judgments. Prior thereto Leonard M. Eice, who now represents the relator here, was the duly elected city attorney. On June 4th after the suits were filed, Eice, being desirous of serving in the recent World War, arranged to enter a training camp, and not knowing the time of his absence, and in pursuance of an ordinance of the city, appointed Fenton E. Luckett, a licensed lawyer of the State, to act in his place. Luckett appeared at the June term, supra, and filed answer, and after judgments were entered filed motions for new trial, which were sustained. He then amended his answers, and upon trial in January, 1918, new judgments were obtained in each of said cases, but on the identical causes of action. These facts are alleged in the petition for- mandamus here, and stand admitted by the demurrer filed by respondent. The ordinance submitting the proposition was like the notice we have just discussed.- It submitted the question as to whether or not the city should issue $22,000 in bonds, the proceeds thereof to be applied upon the judgment indebtedness of the city. After the election was held, and the issuance of the bonds had been overwhelmingly endorsed by the voters, the city passed another ordinance in September, 1920, providing for the issuance of the bonds. In the preamble to this ordinance the judgments are described as of June 19, 1917, when in fact they were of January] 1918. The ordinance in its body provides for the issuance of the bonds, their form, the levy of taxes for the payment of annual interest, and for a sinking fund, and many other recitations and details. It is urged that this misrecital of the date of the judgments in the preamble of the ordinance invalidates these bonds. We are not inclined to that view. Throughout, the city had, by the ordinance calling the election, and by the notice thereof, been dealing with its judgment indebtedness. The whole proceedings show that these two judgments, first obtained in June, 1917, and later upon retrial in January, 1918, were the judgment debts under consideration. In this contention we do not agree with respondent. This ordinance was the nsnal formal ordinance for the mere issuance of the bonds, after they had been duly authorized by a vote, under a valid ordinance calling for the election, in which judgment indebtedness was the subject of. consideration, and the minute description' of the several judgments making up the city’s judgment indebtedness was immaterial. Then by demurrer to the petition, the respondent admits the fact that the judgments of June and January were for the same indebtedness. In fact this is made clear throughout the whole record presented to the respondent when the bonds were tendered for registration. We therefore rule this contention against the respondent.

Y. The ordinance authorizing the issuance of the bonds, in Sections 4 and 5 thereof, provides:

“Sec. 4. For the purpose of providing for the payment of interest on the said bonds there shall be, and there is hereby, levied a direct annual tax upon all the taxable property in the City of Jefferson, a sum sufficient to produce thirteen hundred and twenty dollars ($1,320) -per annum until such a time as said bonds are redeemed, and upon the redemption of any one or more of the said bonds the amount of taxes hereby levied for the payment of interest shall be reduced-in the sum of sixty dollars ($60) per annum for each bond so redeemed; and for the purpose of creating a sinking fund for the payment of the principal of said bonds there shall be, and there is hereby levied a direct annual tax upon all the taxable property in the City of Jefferson sufficient to produce the sum of eleven hundred dollars ($1,100) per annum until such time as said bonds, and each and all of them have been fully paid off and discharged, and a sum sufficient to produce the accumulated sums of twenty-two thous- and dollars ($22,000) in a period of twenty 3rears.
“Provision to meet the requirements of this section, shall, in due time, manner and season, be annually hereafter made.
“Sec. 5. Said tax shall be extended upon the tax rolls in each of the several years respectively, shall be levied and collected at the same time and in the same manner that other city taxes are levied and collected and the proceeds derived from said taxes shall be used exclusively for the payment of the principal and interest of the bonds herein authorized.”

The contention is that such does not levy a tax for interest and sinking fund within the meaning of Section 12: of Article X of the Missouri Constitution. In this section of the Constitution, it is provided:

“And provided further, that any county, city, town, township, school district or other political corporation or subdivision of the State, incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of. an annual-tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same.”

It is true that this ordinance does not levy a per centum tax on all property for the purposes, but it does say that there shall be levied upon all property (each year) a tax which shall raise a stated amount for each purpose, which amounts are fully sufficient to taking care of the interest and the sinking fund. But even if this was an insufficient levy of a tax, such does not invalidate the bonds. The city can be compelled to properly care for both principal and interest. [State ex rel. v. Gordon, 217 Mo. l. c. 119 et seq.]

The statutes cited by learned counsel (Sections 8316 and 8656, R. S. 1919) are but rescripts of the constitutional provision we have quoted. They neither add to nor take from such constitutional provision, and this constitutional provision we have held to be self enforcing. [State ex rel. v. Hackman, 275 Mo. l. c. 541.] We therefore rule that there is no substance in this contention of the respondent.

VI. It is further contended that there should be a proper showing that the claims and amounts against the city, for which judgments were entered, had been properly presented in writing and verified by the claimants or their agents. We are cited to Section 8313, Revised Statutes 1919, but this section had no application here. Here the record shows judgment, and all defenses to the claims out of which the judgment grew, were foreclosed by the judgments themselves.

VII. It appears, that the process in the two suits was served upon the city clerk rather than upon the mayor. This question dropped out of the case when the attorney for- the city filed its answer in the case. The filing of the answers waived any defect in the service of the process. But it is further urged that Luckett, who acted for the city, had no power to act. The city is the only party to question his authority to act, and the city has not questioned it. Nor does it now question it, but on the other hand it is here recognizing the judgments, and asking for the registration of those bonds so that it can pay portions thereof. This should suffice. But in addition to this the ordinance of the city provided this:'

“In case of sickness, absence from the city or other temporary inability of the city attorney to discharge the duties of his office, he may, with the approbation of the mayor and at his own expense, appoint some competent attorney to act in his stead during such sickness, absence from the city or other inability of the city attorney. ’ ’

Luckett had been appointed by Rice and the appointment had been approved by the mayor, under the terms of this ordinance. The ordinance was at least express authority for Rice, with the consent of the mayor, to procure some attorney to act for him during his absence in cases in which the city was interested. He possessed that power so long as he remained city attorney. We are cited to Section 18 of Article II of the Constitution. Such section might have been authority for the removal of Rice from office (a question not for decision here), but it is no authority for questioning his acts whilst he held the office.

We see no reason why these bonds should not be registered. All the facts were before the Auditor, as they are now before us.

Let our alternative writ of mandamus be made permanent.

All concur.


author: WALKER, C. J .

text:
    THE STATE ex rel. BROTHERHOOD OF AMERICAN YEOMAN v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    April 1, 1921.
    1. LIFE INSURANCE: Misrepresentations as Defense: Tender of Premiums. Section 6401, Revised Statutes 1919, found in the article relating to fraternal beneficiary associations and declaring that “such societies shall be governed by this article and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose,” exempts such associations from the requirements of Section 6940, found in the general insurance law and declaring that in suits brought upon life policies “no defense based upon misrepresentation in obtaining or securing the same shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiff the premiums received on such policies.” The beneficiary association, when sued by a certificate holder for physical disabilities, can interpose the defense of misrepresentations on his part in obtaining the policy, without having' returned or tendered the premiums received.
    2. -: -: -:. Contrary Ruling by Court of Appeals: Exception to General Statute. The Supreme Court had ruled in State ex rel. Garesche v. Roach, 258 Mo. 1. c. 552, that the general provisions of a statute must yield to special provisions where there is a conflict and where the general provisions of one part of the statute are inconsistent with the more specific provisions of another part; the Court of Appeals, therefore, contravened said previous decision in holding in Wilson v. Brotherhood of American Yeomen, 223 S. W. 992, that Section 6940, Revised Statutes 1919, found in the general insurance law, prevents a fraternal beneficiary association, when sued by a certificate holder, from interposing, as a defense, misrepresentations by the holder in. obtaining the certificate, unless it' has returned or tendered the premiums paid, since Section 6401 relates specifically to such societies and exempts them, for every purpose, from the operation of said general law. The Court of Appeals, in so ruling, further contravened the previous decision of the Supreme Court in Han-ford v. Mass Ben. Assn., 122 Mo. 50, wherein, in discussing the applicability of the general insurance law in reference to misrepresentations interposed as defenses to actions upon policies issued by assessment companies, it was ruled that corporations doing business under the assessment statute are not subject to any other provisions of the general insurance law except as therein distinctly set forth.
    3. CERTIORARI: To Court of Appeals: Conflict in Opinions. A court of appeals is vested with power to authoritatively construe a statute, and mere erroneous interpretation thereof does not warrant a quashing of its opinion in any case; but .where its construction contravenes prior decisions of the Supreme Court its opinion, will be quashed upon certiorari, for the Constitution gives the Supreme Court supervisory jurisdiction, where .the court of appeals has not followed its last previous ruling.

      Certiorari.

    Record quashed.

      John D. Denison and Lehmann & Lehmann for relator. .
    The opinion of the Court of Appeals is in direct conflict with the controlling decision of the Supreme Court in the case of Hanford v. Massachusetts Mutual Benefit Association, 122 Mo. 50. Sec. 694.0, R. S. 1909, is a remedial statute, and prior to the enactment thereof, the tender of premiums received was not a condition precedent to the defense of misrepresentation. Loehrner Mutual Ins. Co., 17 Mo. 247; Mers v. Franklin Ins. Co., 68 Mo. 127; Hanford v. Mass. Benefit Assn., 122 Mo.. 50; Schuerman v. Ins. Co., 165 Mo. 641; Aloe v. Mutual Life Assn., 147 Mo. 561; Aloe v. Ins. Co., 164 Mo. 675; Kern v. Legion of Honor, 167 Mo. 471; Jenkins v. Tns. Co., 171 Mo. 375.

      Joseph Reilly for respondents.
    (1) The answer of the relator filed in the circuit court fails to state facts sufficient to constitute a defense to the plaintiff’s cause of action; the certificate of relator fails to meet the requirements of the law. Brassfield v. Maccabees, 92 Mo. App. 102; Brassfield v. Woodmen, 88 Mo. App. 208; G-ruwell v. National •Council, 126 Mo. App. 496; Barker v. Railroad, 91 Mo. 94; State ex rel. v. Vandiver, 213 Mo. 198; Odelheide v. Modern Brotherhood of America, 268 Mo. 347; .Toomey v. Supreme Lodge, 147 Mo. 129; Aloe v. Life Assn., 1.64 Mo. 675; Christian v. Ins. Co., 143 Mo. 460; Richey v. Ins. Co., 104 Mo. App. 149; Sec. 6405, R. S. 1919; Laws 1911, p. 284. (2) The opinion of the Court of Appeals is not in conflict with the opinion of this court in the case of Hanford v. Insurance Co., 122 Mo. 50. (3) The opinion of the Court of Appeals follows the law of Missouri as it is now and always has been. Siplo v. Robinson, 129 Mo. 208; Long v. Abstract Co., 252 Mo. 158; Drucker v. Insurance Co., 223 S. W. 990; Jarrett v. Norton, 44 Mo. 277; Estes v. Reynolds, 75 Mo. 563; Kern v. Insurance Co.., 167 Mo. 487; Bishop on Contracts, secs. 679-683; 13 C. J. p. 620.
   WALKER, C. J .

Certiorari is here invoked to quash the record of the St. Louis Court of Appeals in Wilson v. Brotherhood of American Yeomen, 223 S. W. 992. In the original action the plaintiff had brought suit against the defendant, a fraternal beneficiary association, to recover for a disability, payment for same having been provided for in the policy or certificate of membership. At the trial defendant sought to interpose the defense of misrepresentation on the part of the plaintiff in securing the policy. Objections to this defense were sustained on the ground that the premiums received had not been returned or tendered to the plaintiff. There was a judgment for the plaintiff, which, upon appeal to the Court of Appeals, was affirmed. The character of the association is conceded. There is no dispute as to the facts. The only question involved is one of law, viz.: is it a prerequisite to the right of the defendant to interpose the defense of misrepresentation that premiums received by it be returned or tendered to the plaintiff? The Court of Appeals so held.

Governed by elementary rules of construction with the relevant statutes before us, this question need not be difficult of solution. Under a general law it is provided that “in suits brought upon life policies, heretofore or hereafter issued, no defense based upon misrepresentation in obtaining or securing the same shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiff the premiums received' on such policies.” [Sec. 6940, R. S. 1909; Sec. 6145, R. S. 1919.]

The regulation of the business of life insurance is, under our statute, variously subdivided, in that .each article authorizes the organization, defines the nature and prescribes the manner of conducting the business of a certain class or kind of companies distinct from the others, and subject, in many particulars, on account of their character, to the law of their creation alone. These separate statutes, however, do not prevent the application, in' the absence of exceptions, of the above statute in regard to misrepresentations to any class of policies.

In ruling upon a statute (Sec. 6937, R. S. 1909; Sec. 6142, R. S. 1919) defining the materiality of misrepresentations as affecting the validity of policies we have held that this section applied to all companies not specifically excepted and to all policies written since its enactment. [Christian v. Mut. Life Ins. Co., 143 Mo. 460.] By parity of reasoning and in harmony with the canons of construction, the rule thus announced may be held applicable to the statute above quoted. [Sec. 6145, supra.] This ruling would, without more, render-fraternal beneficiary associations subject to that section, or, more specifically, make it a prerequisite for a defendant to tender or return the premiums received to the plaintiff before being allowed to interpose the defense of misrepresentations. However, we find,'upon an examination. of Article XY of the Insurance Law concerning fraternal beneficiary associations, the following section: “Except as herein provided, such societies shall be governed by this article and shall be exempt from all provisions of the insurance laws of this State, not only in governmental relations with the State, but for every other purpose, and no law hereafter enacted shall apply to them unless they be expressly designated therein.” [Sec. 5, Laws 1911, p. 285; Sec. 6401, R. S. 1919.]

The language of this section is such that it would be difficult to employ words more comprehensive of the legislative purpose to exempt this class of associations from the provisions of the general insurance law, and to restrict their -operations to the statute of their creation. In harmony, therefore, with the rules of construction which, in our opinion, are in accord with right reasoning, there is no escape from this conclusion. That the ruling of the Court of Appeals is in error in holding to the contrary there does not seem to be any question. But as we said, in effect, in State ex rel. Peters v. Reynolds, 214 S. W. l. c. 122, “this court is not to determine whether the St. Louis Court of Appeals erred in its application of rules of law to the facts in the record before it, but only whether in announcing the law of the case upon the facts as stated in its opinion it failed to follow the last previous rulings of this court.”

This ruling, which is but a repetition of others to a like- effect, was not intended and does not limit the right of Courts of Appeals to authoritatively construe any statute. Their right in this regard is final and unlimited except where their construction contravenes a decision of this court. Until such contravention is found to exist, our interference by certiorari is unauthorized, because our supervisory jurisdiction is founded solely upon the fact that a Court of Appeals has not followed our last previous ruling. [Art. VI, sec. 6, Mo. Const.; State ex rel. Gilman v. Robertson, 264 Mo. 661; State ex rel. Tiffany v. Ellison, 266 Mo. 604.]

Under the -foregoing clearly defined limitation upon our powers of supervision, it not only becomes pertinent, but necessary, to determine whether the ruling of the Court of Appeals runs counter to our decisions, either as regards a general principle of law announced by this court, or, under a 1-ike state of facts, has announced a ruling contrary to that- of this court. [State ex rel. Peters v. Reynolds, 214 S. W. (Mo.) l. c. 122.]

A familiar rule of construction frequently recognized by this court is that the general provisions of a statute must yield to special provisions where there is a conflict and where the general provisions in one part of the statute .are inconsistent with the more specific provisions in another part. [State ex rel. Garesche v. Roach, 258 Mo. l. c. 552.]

The statute defining the conditions under which the right to the defense of misrepresentation may be exercised in a suit upon a life policy is general in its nature. In the absence of restrictions it may be invoked in a suit upon any life policy. The original action upon which the suit at bar is based was brought upon a policy or certificate of membership issued by a fraternal beneficiary association. This statute (Art. XV, chap. 50, R. S. 1919) contains, among' other things, the section upon exemptions which we .have shown constitutes an unequivocal restriction upon the application of the general statute above referred to, and confines the rights and powers of such association to the statute of its creation. In ruling to the contrary the Court of Appeals,' therefore, was not only in error, but it ran counter to our holding in the Garesche-Roach case, supra, and others.

Futhermore, the Court of Appeals opinion is.contrary to a general rule of construction applicable to statutes of the character here under review as announced by this court in Hanford v. Mass. Mut. Ben. Assn., 122 Mo. 50, in which, in discussing the application of the general insurance law in regard to misrepresentation's interposed as defenses to suits upon policies issued by assessment companies, it was ruled that corporations doing business under the assessment statute are not subject to any other provisions or requirements of the general insurance law except as therein distinctly set forth. This ruling was based upon a statute (Sec. 5869, R. S. 1889; now Sec. 6154, R. S. 1919) having particular reference to insurance companies operating under the assessment plan. While this is true, the doctrine announced is, in its last analysis, based upon the rule of construction in regard to general and special statutes, and is as applicable to a statute of exemptions in regard to fraternal beneficiary associations as it is to one having reference to the class of companies then under review.

In the late case of Bankers Life v. Chorn, 186 S. W. (Mo.) l. c. 684, this court, in discussing the statute defining the exemptions from the general insurance law of assessment companies, said, in passing, in regard to the similar but more compréhensive statute in regard to fraternal beneficiary associations here under review, that while the language of the latter was redundant, it denoted the exemption of that class of associations from the insurance law of the State in every respect. Employed as an illustration, .this declaration cannot be said to rise to the dignity of a ruling, but it cannot be otherwise regarded than as a recognition of the doctrine announced in the Garesche-Roach and Hanford cases, supra, concerning the construction to be given general and special statutes and hence at a variance with the ruling of the Court of Appeals.

From the foregoing we conclude that principles of law announced in our decisions are contravened in the original case by the opinion of the Court of Appeals, and that its record therein should be quashed.

It is so ordered.

All concur.


author: WOODSON, J. GRAVES, J.

text:
    JAMES C. JONES et al. v. JUDSON SANDERSON, Appellant.
    In Banc,
    April 1, 1921.
    1. ATTORNEY: Disbarment: Indictable Offense. A final judgment disbarring an attorney from practicing law on a charge that he has been guilty of an indictable offense, but not charging that he has been indicted and convicted, cannot be rendered, but before he can be finally disbarred the court 'hearing the disbarment proceeding must await the determination of the indictable offense in the court having charge of such criminal case.
    2. -: -: -: Suspension: Final Judgment. Where the information in a disbarment proceeding charges an indictable offense, but does not charge a trial and conviction, the power of the trial court is limited to a mere suspension of the attorney from practice until the facts can be ascertained in a trial upon an indictment. But a judgment disbarring an attorney for a period of twelve months from and after a certain date and finally disposing Of the case, adding thereto a judgment for costs against him, is not a suspension, but a final judgment, and one the trial court had no power to render before an indictment and conviction. A suspension for a fixed term is not a judgment of suspension under the statute.
    3. -:--: -: Power to Hear The Facts. Where the information in the disbarment proceeding charges against an attorney indictable offenses, the court hearing the disbarment proceeding is without power to hear and determine the facts, but that power is by the statute placed in the court having charge of the criminal offenses mentioned in said information.
    4 -: -: -: Jurisdiction: Waiver. In a disbarment proceeding based upon an information charging an attorney with an indictable offense only, the circuit court is without power to hear and determine the facts tending to show him guilty of such offense; and if the court, nevertheless, proceeds to hear said facts and enters final judgment of disbarment based thereon, said judgment is in excess of its jurisdiction, and the attorney does not waive excessive jurisdiction by proceeding to trial, for there can be no waiver where the court is without power to hear and determine the facts.

      5. -: -: -: Evidence. Where the petition for disbarment rests upon indictable offenses, the only proof which will justify a permanent disbarment, or a fixed term of suspension, is a judgment of guilt from a court which tried the case upop the indictment and heard the facts offered to sustain it.
    Appeal from Audrain Circuit Court. — Hon. Ernest 8. Gantt, Judge.
    Dismissed.

      R. D. Rogers and McBaine, Ciarle & Rollins for appellant.
    (1) The evidence in this case does not prove that appellant violated any law or his oath as an attorney at law by interviewing the witnesses in the case pending against the Klick brothers. The testimony does not show that the appellant tried to obtain these witness to change their testimony or to get them to swear falsely in the Klick cases. The offenses charged by the petition for disbarment are indictable offenses, and under the law the appellant could not be disbarred or suspended for a definite term until he first had been indicted and convicted by a common law jury. Secs. 951 to 959, R. S. 1909; State ex rel. Selleck v. Reynolds, 252 Mo. 369; Laws 1909, p. 151. The petition for disbarment charged appellant with both the statutory crime and common law crime. Sec. 4352, R, S. 1909; 12 C. J. 195; State v. Appling, 25 Mo. 315; Secs. 8047-8, R. S. 1909; Kelley Criminal Law (3 Ed.), pages 4 and 5, 733; State v. Rose, 32 Mo. 560; State v. Snyder 44 Mo. App. 429; State v. Dalton, 134 Mo. App. 514; Perry v. Strawbridge, 209 Mo. 621; King v. Higgins, 2 East R. 17; King v. Phillips, 6 East R. 456; State v. Dewit,'20 S. Car. L. 282, 29 Am. Dec. 371; State v. Keyes, 8 Yt. 57, 30 Am. Dec. 450; United States v. Debolt, 253 Fed. 78. (2) It was an offense at common law to solicit one to commit a crime that is indictable through the solicitation is of no effect and no crime is in fact committed. 16 C. J. 117; State v. Hays, 78 Mo. 307; Queen v. Williams, 1 Den. (Brit. Or. Cases) 39; I Bishop, Ctim Law, sec. 767; Commonwealth v. Jacobs, 9 Allen, 274; Sec. 4894, R. S. 1909. (3) The acts charged against appellant in the petition were indictable' offenses against the United States Government. Secs. 125 and 126, 4 United States Statutes Ann. Crimes, 178-184; United States v. Lyle, 26 Fed. Cas. 15, 4 Crunch C. C. 469; 16 C. J. Ill; United States v. Worrall, 28 Fed. Cas. 16-766, 2 Dali. 384; United States v. Debolt, 253 Fed. 78; Heinze v. United States, 181 Fed. 322; United States v. Wilder, 143 Fed. 433.

      James C. Jones and Charles W. German for respondent.
    (1) It is first urged by'counsel that the evidence is insufficient to support the finding and judgment of the court. If we apply the rule that where there is any evidence tending do support the finding and judgment of the trial court this court will not interfere, the point made by counsel' must be determined against the defendant.1 (2) The second point urged by counsel is that the petition charges indictable offenses and from this premise the erroneous conclusion is drawn that the decree of the trial court was not justified and that this case must for that reason be- reversed. The error into which counsel have fallen is forcibly illustrated by the statement that “if an indictable offense is involved there can be no suspension before a trial by jury and a conviction.” And in support of this assertion counsel cite the case of State ex rel. Selleck v. Reynolds, 252 Mo. 369. The provisions of the statute do not justify any such statement or conclusion and the decision of this court in the Selleck case falls just as far short of forming the basis for such a conclusion. The statutory scheme clearly provides for either of two results, namely: (a) removal or disbarment; (b) suspension from practice. That these are distinct and separate results arrived at and obtained in separate and distinct ways is at once apparent from a reading of Secs. 951 to 958 R. S. 1909, and from- a reading of the opinion in the Selleck case. Nothing can be clearer than this, and yet it seems that counsel have wholly failed to grasp the distinction and thus have fallen into error. The opinion of the Court of Appeals in the Selleck case was quashed by this court, because there the charge was for an indictable offense, and there was admittedly no conviction, and yet the decree was disbarment or removal from the practice, not suspension. The reasoning so clearly and forcefully stated,' plainly shows that the error was in the conclusion arrived at, or decree entered by the trial court, namely, that of removal or disbarment, instead of suspension, pending indictment and trial in a court where tlie defendant could have the benefit of a jury trial.
   WOODSON, J.

This suit was instituted in the Circuit Court of Callaway County by plaintiffs and against the defendant, seeking to disbar him from practicing law in the courts of this State. The trial court sustained the charges made against him and disbarred him for a period of twelve months from and after March 28, 1919. In due course the defendant appealed the cause to this court.

The record in the case is very long, covering about two hundred and seventy pages of printed matter, and the statement of counsel for appellant covers about fifty, but from the view we take of the case, it will be unnecessary for us to go into details of the facts of the case:

It will suffice to state that the Klick brothers, five in number, during the war were charged with being in sympathy with Germany, and made some very violent-language against this country and in favor of Germany. This was called to the attention of the Council for the Defense, which caused charges to be prepared against them in the United States District Court at Jefferson City, Missouri, charging them with disloyalty, etc. They were duly arrested upon those charges and arraigned before the commissioner of that court, whereupon the appellant, who was a duly licensed and practicing attorney-at-law of this State, was employed, by the Klick brothers to defend them against those charges. In the performance of that duty, it is charged that appellant was guilty of unbecoming and improper conduct, in that he attempted to induce the witnesses against the Klicks to change their testimony; in other words, was guilty of an attempt of subornation of perjury. These are the matters that constitute the basis of the charges against the appellant in this case, which, as before stated, the trial court found to be true.

The offense charged in the disbarment proceedings against the appellant is conceded to be an indictable offense, and under the law of this State as declared by this court in the case of State ex rel. Selleck v. Reynolds,-252 Mo. 369, he cannot be disbarred or suspended for' a definite term as a punishment, before having been indicted and convicted by a jury of his country. That being the law, and there being no pretense that appellant has been indicted or convicted, this proceeding must be dismissed, and it is so ordered.

All concur; Graves, J., in a separate opinion, in which all concur.

GRAVES, J.

(concurring). — I agree with my learned brother wherein he says that this case should be ruled against the officers of the State Bar Association and in favor of the appellant, Sanderson, in obedience to the law as declared in State ex rel. Selleck v. Reynolds, 252 Mo. 369. Sanderson was proceeded against under the same statutes as was Selleck. The laws were not changed until 1919 (Laws of 1919, p. 151), and this cause was begun before the Act of 1919 became effective. The trial was had and the judgment entered before the Act of 1919 became effective. So that the Revised Statutes of 1909, as quoted in Selleck’s case, supra, was the governing law. I would not add this separate concurrence but for the fact that the learned representatives of the State Bar-Association urge that Selleck’s case sustains this judgment. As the writer of the Selleck opinion, I feel called upon to disabuse the minds of counsel upon this contention.

The petition for disbarment in this case clearly charges indictable offenses both as against the State and Federal laws, and this is not seriously controverted by learned counsel for the Bar Association. What they contend is that under the rule in Selleck’s case the court had the right to suspend Sanderson, because the charges were of indictable offenses, and Sanderson could not complain because his suspension was for only twelve months. They contend that the suspension might have run for the statutory period of limitation for the prosecution of the crimes. The trouble with learned counsel is that they overlook their own judgment in the case. This judgment does not suspend Sanderson until an indictment might be .secured, and he tried thereon, but the judgment is one finally disposing of the case, and thereto is added a judgment for costs against Sanderson.

The whole conduct of this case conflicts with Selleck’s case, and our learned brothers of the bar will see it when their attention is called to portions of that opinion not appearing in their brief.

Section 960, Revised Statutes 1909, reads: “When the matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by the court.”

We quoted this section in Selleck’s case at 252 Mo. l. c. 383, and on page 383 said:

“This statute when added to those already quoted rounds out the statutory scheme. When so rounded out it means (1) that where the information in a disbarment proceeding charges an indictable offense, but does not charge a trial and conviction upon an indictment, then the power of the trial court is limited to a mere suspension of the attorney from practice until the facts can be ascertained in a' trial of the facts on an indictment, but (2) if the ‘matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by the court.’
“The very language of Section 960 shoivs' that it was never contemplated that the court before which the disbarment proceedings ivere pending should ascertain the facts in a case where the charges reached the gravity of indictable offenses. The trial of such facts was left to the court having charge of the criminal proceedings, and by Section 959, the record from such court, whether it showed, acquittal or conviction, is binding upon the court heairg the disbarment proceedings.”

And further speaking of Section 960, supra, we said:

“ Again had the Legislature intended that the court hearing the disbarment proceeding should hear, try and determine the facts, in a case where the charges amounted to indictable offenses, there never would have been the limitations found in Section 960 supra. That section limits the court’s right to determine the facts to cases involving charges other than those of indictable offenses. The rule ‘expressio unius est exclusio alterius’ is peculiarly applicable here.”

In other words there could be no final judgment, as we have here, until there had been an indictment and a trial thereon, and when there had been such trial the judgment of conviction or of acquittal was the thing which authorized the trial court to proceed beyond a temporary (not a fixed) suspension. The ruM in Selleek’s case goes to the extent of holding that, information in the disbarment proceedings charged against the attorney indictable offenses, the court hearing the disbarment proceeding was without power to hear and determine the facts, but must await their determination in the court having charge of the criminal charge. So when we read the petition for disbarment in this case, it is clear, as ruled in Selleck’s case, that the trial court was without statutory authority to hear' and determine even the facts upon which his judgment was based. By the statute (Sec. 960, R. S. 1909) that power was placed in another court, i. e. one having charge of the criminal charges mentioned in the petition of disbarment.

The face of this record shows that under Section 960, supra, the court entering this judgment was without power or jurisdiction to enter it, or to hear and determine the facts upon which it was entered. The Legislature can limit the power and jurisdiction of circuit courts, and it has done so in this class of cases.

It is urged that Sanderson waived this by proceeding with the trial. There can be no waiver where the court is without power to hear and determine the facts.

There is another reason for a reversal of this judgment under our statutes as construed in Selleck’s case. There was no legal proof upon which to base this final judgment (for upon it face it is a final judgment, and not a mere interlocutory order of suspension), pending the ascertainment pf the facts in a court having criminal jurisdiction of the offenses charged in the petition for disbarment.

Where the petition for disbarment rests upon indictable offenses, the only proof which can justify a permanent disbarment, or a fixed term suspension, is a judgment of guilt from a court which heard-the facts of the case upon indictment. Not only so, under the petition in this case the court below was not only precluded from finding the facts, but likewise precluded from entering a final judgment (as was entered here) until there had been an indictment and trial thereon. [R. S. 1909, sec. 959.]

This we ruled in Selleck’s ease, supra. For these reasons I concur with the opinion of Brother Woodson.

All concur in these views except Woodson, J., who adheres to the principal opinion, written by him.