author: LAMM, P. J.

text:
    HELEN M. MANN v. CHRISTIAN DOERR and J. WILLIS KAHL, Appellants.
    (Two Cases Consolidated.)
    Division One,
    July 1, 1909.
    1. JUDGMENT: Separate Counts. The statutes contemplate but one final judgment, although the petition may contain several counts, some at law and some in equity, and although separate trial be had thereon, at the same or at different terms of court.
    2. -: -: Appeal: Premature: Waiver. Where plaintiff, who sued on two counts, one to quiet .title and the other in ejectment, obtained a severance of the two counts and obtained judgment on the equity count, from which defendants appealed, and then the trial proceeded on the law count and another judgment was entered, from which defendants also appealed, plaintiff cannot be heard to contend that the first appeal’was premature, for she procured the judgment (which is final in form) to be entered.
    3. SEPARATE TRIALS: Quieting Title: Ejectment. Separate trials may be allowed under a petition in two counts, one to quiet title and the other in ejectment. TJie causes of action stated in the two counts are not the same; they both involve title, but by tbe ejectment possession is sought, and the action to quiet title may be brought by a plaintiff either in or out of possession.
    4. MISJOINDER OF PARTIES: Quieting Title. The landlord and • his tenant may be joined as parties in a suit to ascertain and determine the title. The tenant under a written lease has an “interest” within the meaning of Sec. 650, R. S. 1899.
    5. -: In Ejectment. The landlord out of possession should not in ejectment be joined by plaintiff as a defendant with his tenant in possession. Ejectment- should be brought only against the tenant alone in possession. It is the landlord’s right to be made a defendant if he chooses, but not the plaintiff’s right to make him a defendant if he does not so choose.
    6. -: -: Not Reversible Error. But joining the landlord out of possession as a defendant in the ejectment suit is not ground for reversing on appeal a judgment for plaintiff. Such misjoinder is error, but not error affecting the substantial rights of the parties.
    7. -:-:-: Damages. A misjoinder of the landlord as a defendant in ejectment is not error affecting his substantial rights, though judgment be rendered against him for damages for wrongfully withholding the possession from plaintiff, if he received the rents.
    8. -: — : -: Waiver: Pleading to Merits. A landlord, wrongfully joined in ejectment as a defendant with his tenant in possession, the misjoinder not being apparent from the face of the petition and therefore not demurrable, who takes upon himself the burden of the defense — by interposing in his answer his title and his equities as a defense, by asking for judgment for his outlay for improvements, and by tendering testimony in support of those affirmative allegations — waives ■ his plea of misjoinder of parties defendant set up in his answer.
    9. EJECTMENT: Evidence: Decree in Suit to Quiet Title. Where under the count of the petition to ascertain and determine the title, the court found and entered decree for plaintiff, that decree may be introduced by plaintiff as evidence of title in a subsequent separate trial of the count in ejectment. Nor did the fact that the court before the trial of the ejectment had entered that decree in the form of a final judgment, and a separate appeal therefrom had been taken by defendants and a supersedeas bond given, render the decree inadmissible.
    10. -: Improvements: Set-Off. The defendant in ejectment, not holding possession or claiming title through plaintiff, is not entitled to have the value of the improvements placed upon the land by him set off against the damages, or to be reimbursed for them in that suit. His remedy is by a new suit, independent in character, commenced before ouster by writ of possession.
    11. QUIETING TITLE: Fraudulent Conveyance. For the reasons set forth in Welch v. Mann, 193 Mo. 304, based largely on the same evidence, and deferring to the finding of the chancellor on the questions of fact, it is held that a deed made by a husband to his wife in pursuance to an antenuptial contract was not fraudulent, and that she took the title thereto instead of a defendant who purchased at a subsequent execution sale under a judgment against the husband.
    Appeal from Jackson Circuit Court. — Hon. Hermann Brumback, Judge.
    Affirmed.

      C. W. Chase and Paul Byrd for appellants.
    (1) The court erred in granting separate trials upon the separate counts of the petition. Peters v. Berkmeier, 184 Mo. 400; Graves v. Ewert, 99 Mo. 18; Davis v. Sloan, 95 Mo. 552; Stark v. Kirchgraber, 186 Mo. 633; Pitts v. Sheriff, 108 Mo. 116; R. S. 1899, sec. 4589; Bedford v. Sykes, 168 Mo. 15; Sidell v. Cornwell, 166 Alo. 54; Lane v. Dowd, 172 Mo. 167; Morrison v. Herrington, 120 Mo. 665; Ball v. Woolfolk, 175 Mo. 285. (2) The evidence was insufficient to show an antenuptial contract. (3) Even if there had been an antenuptial contract between Morris Mann and Helen Alarm, a convéyance made in pursuance thereof would have been void as to creditors, because the ante-nuptial contract was not recorded as provided by law. R. S. 1889, secs. 6853, 6854, 6855; Wilkinson v. Rozier, 19 Mo. 443. (4) If Morris Mann, after his engagement to plaintiff, told her that he would give her the farm some day, the promise was without consideration, and a conveyance was voluntary. Chambers v. Sallie, 29 Ark. 409; 21 Cyc., 1248, par. c.; 2 Lawson’s Rights, Remedies and Practice, sec. 755, p. 1386; Ogden v. Ogden, I Bland (Md.) 284. (5) The conversations between Morris Mann and respondent, alleged to have taken place before the engagement, were insufficient to establish an antenuptial contract. They were, if said, at most, only the expressions of an intention. Lamb v. Lamb, 18 N. Y. App. Div. 250, 46 N. Y. Supp. 219; Stewart v. Reckless, 24 N. J. L. 430; Schockley v. Mills, 71 Ind. 288. (6) If a transfer is made by a debtor in anticipation of a suit against him, or during the pendency of a suit, against him, this is a badge of fraud. 20 Cyc., 444; Bump on-Fraud. Conv. (4 Ed.), sec. 50, p. 46; Mason v. Perkins, 180 Mo. 708; Glenn v. Glenn, 17 Iowa 503; Booher v. Worrill, 53 Ga. 235'. (7) The fact that Morris Mann conveyed all Ms attachable property to his wife, is a badge of fraud. Benne v. Schnecko, 106 Mo. 256; Boyd v. Jones, 60 Mo. 454; Bump on Fraud. Conv. (4 Ed.), sec. 37, p. 33; 20 Cyc., 449. (8) The incorrect statement of the consideration in the deed of conveyance and deed of trust are badges of fraud. Benne v. Schnecko, 100 Mo. 256; Bump on Fraud. Conv. (4 Ed.), sec. 54, p. 41; 20 Cyc., 442. (91) Transactions between husband and wife, to the prejudice of the husband’s creditors, are to be scanned closely, and their bona fides must be clearly established. Bump on Fraud. Conv. (4 Ed.), p. 56; Bank v. Fry, 168 Mo. 513; Scharff v. McGaugh, 205 Mo. 344; DreSher v. Corson, 23 Kan. 315; Reese v. Schell, 95 Ga. 751; Blow v. Maynard, 2 Leigh (Va.) 47; Benne v. Schnecko, 100 Mo. 257; Besson v. Eve-land, 26 N. J. Eq. 472; Booher v. Worrill, 53 Ga. 238; Waite on Fraud. Conv., sec. 300; p. 526. (10) The conveyance of January 27, 1896, by Mann to his wife was fraudulent and void as to his creditors, because, being voluntary, it left him without sufficient property for the satisfaction of his then existing debts. Grocer Co. v. Walker, 69 Mo. App. 553; Potter v. McDowell, 31 Mo. 72; Patten v. Casey, 57 Mo. 118; Snyder v. Free, 114 Mo. 369; Scliarff v. McGaugh, 205 Mo. 364. (11) A voluntary conveyance will not be upheld as against an existing creditor who cannot obtain satisfaction of his demand without resorting to the property so conveyed. Obermeir v. Tressler, 19 Mo. App. 522; Hastings v. Crosslands, 13 Mo. App. 592; 14 Am. and Eng. Ency. Law (2 Ed.), 302.

      Meservey & German for respondent.
    (1) The court did not err in ordering a separate trial on each count. Counts of law and equity united in the same petition require separate trials. Crowe v. Peters, 63 Mo. 429; James v. Moore, 42 Mo. 413; Henderson v. Dickey, 50 Mo. 161; Boeckler v. Eailroad, 10 Mo. App. 448; E. S. 1899, sec. 694; McFarland v. Eailroad, 125 Mo. 275; Smith v. Baer, 166 Mo. 402. (2) The appeal should be dismissed because it was prematurely taken. The record does not show that the second count has proceeded to judgment, or that any final disposition has been made of it'. Courtney v. Blackwell, 150 Mo. 273; Baker v. St. Louis, 189 Mo. 378; Eock Island Implement Co. v. Mann, 168 Mo. 252; Oliver v. Lowe, 104 Mo. App. 84; Miller v. Eailroad, 162 Mo. App. 437; State v. Eyan, 115 Mo. App. 414; Diamond Match Co. v. Eailroad, 121 Mo. App. 43; E. S. 1899, sec. 694. (3) The conveyance to plaintiff was not made in fraud of the creditors of the grantor Morris Mann. Even though Morris Mann was in debt at the time of the conveyance to plaintiff, and if we also consider the conveyance a gift, still it was not fraudulent, because he had more than sufficient property left to satisfy all his debts. Bank v. Simpson, 152 Mo. 656; Bank v. Thornburrow, 109 Mo. App. 639; Fehlig v. Busch, 165 Mo. 144. Marriage is a sufficient consideration to support a conveyance, and marriage contracts are favored by the law. Bank v. Eead, 131 Mo. 553; Powell v. Moeller, 107 Mo. 471; Lionberger v. Baker, 88 Mo. 447; Marshall v. Morris, 16 Ga. 368; Nowack v. Berger, 133 Mo. 24; Welch v. Mann, 193 Mo. 316; Buffe v.. Buffe, 88 Mo. App. 627.
   LAMM, P. J.

Two cases were brought here with above title, each an appeal by defendants from a judgment in favor of plaintiff — one from a judgment on the first count of a petition, the other on a second. The first count is under section 650. In that plaintiff charges she is the owner of ten acres of land described by metes and bounds lying in Jackson county (the description is complicated and is omitted); that defendants and each of them are claiming some title, interest and estate in the property, etc. Wherefore, plaintiff prayed the court to ascertain, determine and adjudge title, etc., as provided in section 650. The second count is in common form in ejectment, laying ouster as of October 1, 1902, and putting monthly rent's at $25 and damages at $675.

To this petition defendant Doerr filed separate answers by counts. To the first count he answered, in substance, that one Morris Mann was the owner of the property; that while such owner on a certain date in January, 1896, he was heavily indebted and unable to pay his debts; that for the sole purpose of defrauding his then creditors he executed a warranty deed conveying the property to plaintiff, then his wife, who was a party to the fraud; that the deed was at once put of record, was without consideration in fact and expressed a consideration many times the value of the property; that as part of the fraudulent scheme, plaintiff and her husband, Morris, at once executed a sham deed of trust to a trustee for defendant, Christian Doerr, beneficiary,, pretending to secure a pretended note due Doerr for $3,000; that there was no consideration for said note or deed of trust; that the latter was also put of record, and defendant Doerr had no knowledge of the execution or record of said sham security or simulated note; that plaintiff without the knowledge of her husband subsequently possessed herself of said note and now has the same; that in 1901 a suit was commenced against Morris Mann by one Fish, who was a creditor of his prior to the execution of the warranty deed to Helen; that such proceedings were taken in that case as resulted in a judgment in favor of Fish, in July, 1902, in the Jackson Circuit Court; that an execution was issued on the' Fish judgment and levied upon the property in dispute as that of Morris Mann; that defendant Doerr purchased at the execution sale on the 6th day of September, 1902, in good faith for a valuable consideration of $600, with no knowledge of the warranty deed from Morris to Helen or of the sham trust deed in his own favor; that at that time and at all times subsequent to said fraudulent conveyance, Morris Mann was in possession through tenants and receiving rent; that presently, after the land was knocked down to him at sheriff’s sale on the Fish execution and judgment and a sheriff’s deed executed, the defendant took possession and has since received the rents and is now the owner and entitled to possession; that there is a misjoinder of parties defendant in that defendant Kahl is merely a tenant in possession, claims no title or right other than as tenant and is not a necessary party. This answer was sworn to by Christian Doerr.

In his separate answer to the second count defendant repleads the averments of his answer to the first count. He then avers that while he is the owner of the title he is not in possession of the premises, but that his codefendant, Kahl, is in actual possession and therefore there is a misjoinder of parties defendant. He next avers that he was a purchaser in good faith and for a valuable consideration at the execution sale under the Fish judgment and that since his purchase he had made valuable improvements, vis., set out a young orchard of one hundred and fifty fruit trees, improved and repaired the house and barn inside and out, constructed a cistern and sunk a well, built chicken houses, etc., to the value of $400' and he prays that if plaintiff recover possession then that he may recover the cost of his improvements and the purchase price by him expended. The answer to the second count is also sworn to by him.

The defendant Kahl disavows any interest in the real estate by his answer to the first count, and all knowledge as to the merits of the controversy; says he is a mere tenant of Doerr and pleads a misjoinder of parties defendant as to that count. As to the second, he denies each and every allegation except he admits actual possession as the tenant of Doerr. He alleges, in effect, that he has no claim or interest in the title to the real estate otherwise than as a tenant, that as to the second count there is a misjoinder of parties defendant for that Doerr has title but is not in possession of the land and is not a necessary party.

In reply plaintiff denied all allegations of the answers relating to new matter; and then makes averments by way of defense to such matter not sustained by the proof and hence immaterial.

At the trial, on motion of plaintiff’s attorneys, a severance of the two counts was granted and the trial proceeded on the first. The severance was over the objection of defendants and exception saved. The gist of the objection was that both counts, under the pleadings, were in equity, that the subject-matter of each was the same, to-wit, title, that the parties were the same and it was unfair to require either party to go to the trouble and expense of two trials.

On a trial of the merits on the first count, the decree, as said, went in favor of plaintiff and defendants appealed. In their motion for a new trial on that count they alleged error, in granting a separate trial, but they did not complain of a judgment on the first count without awaiting a trial on the second. There was a motion in arrest filed, but there was no ground in that motion that the decree be arrested as premature or that no decree could go until after a trial on the second count — in other words, raising the p'oint that there could be only one final judgment and that should go only after a trial and finding on each count, and cover both. ,

Subsequently, a trial on the ejectment count was had and judgment went in favor of plaintiff for possession, for $217.15 damages and finding the monthly rental value of the premises at $7.50. Prom that judgment defendants also appealed here.

At the trial on the second count there was no objection made to the effect that by taking .a final judgment on the first count the second was abandoned. There was an objection lodged to proceeding on the second count, put upon the ground that there was a judgment on the first count appealed from by giving a supersedeas bond and the appeal was pending in the Supreme Court and undetermined — i. e., that there was another action pending covering the same cause of action between the same parties. The objection also covering the point made originally against a separate trial on each count, viz., that both counts covered the same issues. Counsel also objected because there was a misjoinder of parties.

It furthermore appears from the record that the case on the second count was set down as a law case but was changed to the equity side of the docket at the request of defendants, acquiesced in by plaintiff. In their motion for a new trial on the second count no error is claimed because the second count was abandoned by taking a prior final judgment on the first, nor is any such contention made in this court.

When these appeals reached this court and came on for hearing, they were set down on our trial docket separately. Thereupon defendants filed a motion to consolidate them into one case, this on the grounds that the separate judgments really constitute but one and the two appeals one appeal. Plaintiff filed suggestions in opposition, this on the theory that while the cases are between the same parties and on separate counts of the same petition, yet they were tried separately and defendants took separate appeals; that the motion to consolidate is but an ingenious attempt to escape the effect of two appeals, from the fact that the appeal from the judgment on the first count was premature. Defendants’ motion to consolidate was sustained.

Any further matter material to the determination of errors assigned will appear in the opinion.

I. "Whatever the rule elsewhere, in Missouri our Code of Civil Procedure contemplates only one final judgment, although the petition may contain several counts, some at law and some in equity, and although separate trials be had thereon at the same or different terms of court. By Revised Statutes 1899, section 694, it is provided that “the judgment upon each separate finding shall await the trial of all the issues.” See, further, section 773. Plaintiff’s counsel contend that defendants cannot be heard on their appeal from the judgment on the first count because the appeal is premature. But plaintiff may not say that. She procured the judgment to be entered. It was final in form. It was self-executing and adjudged the title to be in her, arid either she had a final judgment destroying defendants’ title or else she had no judgment at all,' and, on the latter theory, the cause is still pending below on the first count. If the judgment below was erroneously entered there is reason in defendants’ appeal, vis., that they be eased of it. If it was not erroneously entered then the appeal cannot' be premature. Either way, we rule the point against plaintiff.

II. Of the assignment of error in granting separate trials.

The argument of learned counsel for defendants in that behalf proceeds on a misapprehension. The causes of action stated in the first and second counts were not the same, as they argue. Though title was in issue on the second count as in the first, the second count was in ejectment and the object sought was possession. Not so in the first. That count was under section 650. An action under that section lies in favor of one in or out of possession and against one in or out. The object to be attained is “to ascertain and determine the estate, title and interest of said parties respectively in such real estate, and to define and adjudge by its judgment or decree the title,, estate and interest of the parties severally in and to such real property.”

Obviously section 650 does not contemplate a judgment for possession and that a writ of ouster go. This for the very good reason that under that section one in possession may sue one out. The precise point has been ruled and is no longer open. [Bedford v. Sykes, 168 Mo. 8.] So that, broad and flexible as the section is in terms, it does not take the place of ejectment.

Since our code permits the uniting of different causes of action in the same petition (R. S. 1899, sec. 598), to avoid multiplicity of suits, the practice has been to unite a count under section 650 with a count in ejectment — the latter to carry into effect the judgment entered on the former. So, under warrant of the code the practice has been to permit separate trials where there is sensible reason for that course — for example, where one count may be triable to a jury and the other to a chancellor.

There was no error in granting separate trials.

III. Of misjoinder of parties defendant. Defendants assign error on this behalf, separating itself logically into two branches. The one reckons with the first count, the other with the second. We will consider them in that order.

(a) As to the first count. The answers allege and the proof shows that Kahl held under a written lease as tenant of Doerr and that he was in possession under such lease when the suit began. He certainly claimed an “interest” in the property. Section 650 contemplates that all persons having or claiming to have any title, estate or interest may be made parties defendant. The point is ruled against defendants.

(b) Of the second'count. The question on the second count is more difficult. In joining causes of action in one petition the statute prescribes that causes so joined “must, affect all the parties to the action.” [R. S. 1899, sec. 593, supra.] The reason underlying this provision is apparent. There must be interests in common in the subject-matter of the litigation before a petition can unite parties as defendants and subject them to common burdens in defense. Confusion would enter through any other door. Doubtless on this theory plaintiff joined Doerr and Kahl in the second count, since it would have been improper joinder of causes of action if the second count had been leveled alone against Kahl, the tenant. The second count says nothing about tenancy. The fact of Kahl’s tenancy appears for the first time in the answer. Therefore a demurrer would not lie for misjoinder and the fact of. misjoinder was properly pleaded in the answer. Ejectment being a possessory action, a petition would be bad, absent an allegation that defendants are the persons in possession of the locus in quo. Accordingly our statutes provide, as did the common law, that ejectment should be brought against those persons in possession and that the proof should establish the fact. [R. S. 1899, secs. 3056, 3058 and 3060; Llewellyn v. Llewellyn, 201 Mo. l. c. 306 et seq.; Hunter v. Wethington, 205 Mo. 284.]

Under section 3057 the landlord “may, on motion, be made a- codefendant.” That statutory provision, it seems, is but declarative of the common law. [Sutton v. Casseleggi, 77 Mo. l. c. 408.] But section 3057 is in the nature of an option extended to the landlord. The option is Ms — not plaintiff’s. He can come in or stay out. If he use his option to come in, plaintiff cannot dismiss him from the suit. [Hayden v. Stewart, 27 Mo. 286.] There is a fixed gulf between the proposition that a landlord may come in if he choose, and the other proposition that he may be brought in, willy nitty, if plaintiff choose. The Hayden case recognizes that gulf of difference. Its ruling that the landlord may not be dismissed out of the case by plaintiff takes him out of the class of ordinary defendants joined on the initiative of plaintiff, to which the general doctrine applies that a plaintiff may enter a dismissal as to one or another.

Morris v. Beebe, 54 Ala. 300, is a soundly reasoned case. The statute in Alabama is substantially the same as our section 3057. After full consideration, it was there well ruled that: “Such statutes do not authorize the plaintiff to make him an original defendant, in commencing suit, nor dispense with the necessity of making the tenant a party defendant. They simply confer on the landlord a right to intervene in the suit, which he may waive or exercise at his option. If he has title extending beyond the term he has created in the tenant, which can be affected- by the suit, it will be his interest to intervene, and the title and the right of possession will generally be quieted by the judgment. If he has no such title, there is no reason to justify his intervention, or for making him a party defendant. The statute evidently contemplates that the action shall be brought only against the party in actual possession, and not against a party having a reversionary title to the possession. . . . The statute contemplates the party defendant shall have an actual possession, on which the judgment may operate. This, the landlord, who has for a term divested himself of possession, has not, and he is not a proper party defendant.”

We-think the doctrine of the Alabama case is right on principle and that the decisions of this court on kindred phases of the question are in line with it. In most of the cases where the question has been approached, the landlord was the sole defendant. In such cases it was uniformly held that plaintiff could not recover. In other cases (of which Phillips v. Phillips, 107 Mo. 360; Kunze v. Evans, 129 Mo. 1, are samples) it was ruled that actual occupancy of or residence upon the locus is not a necessary element of possession. Those cases, however, did not deal with the relation of landlord and tenant. They were cases where the defendant resided elsewhere but farmed the land or held possession through agents, servants, etc., and where the possession was held sufficient to support ejectment. Or where no one was in actual occupancy and possession was held to follow the true title and be in the owner.

Certainly the right doctrine is that the landlord whose tenant is in possession is not a necessary party defendant, and it may be safely ruled that he is not a proper party defendant at the instance of plaintiff.

There is language used in Hunter v. Wethington, supra, to the effect that in a case of landlord and tenant where the tenant is in actual possession “the action may be brought against both” (205 Mo. l. c. 291). That ruling was somewhat obiter and the language used is too broad as a general rule of adjective law. The facts in the Hunter case were not dissimilar to those dealt with in the Phillips and Kunze cases, supra, and what we intended to rule was that actual occupancy by residence was not necessary to support ejectment. Ve did not intend to rule that it was correct practice for a plaintiff to join the landlord out of possession with his tenant in possession in the first instance. In the Hunter case the landowner, although not living on the place, was in fact farming the greater portion of it — the house and undescribed garden tract were in possession of a tenant who was not sued.

(c) But under the facts of this record, although Doerr was neither a necessary nor a proper party defendant in the second count, yet it does not follow that the judgment on the second count must be reversed because of such irregularity. Reversible error is described in the written law as error “materially affecting the merits of the action.” [R. S. 1899, sec. 865.] So tender was the lawmaker on that point and so sedulous was he to establish a mandatory legislative policy, that other sections of the written law are leveled at the mischief of reversing cases for errors not affecting the merits. For instance, section 659 reads: “The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party and no judgment shall he reversed or affected hy reason of such error or defect." Not only must the error originally affect the merits, but the error must not be waived or cured. On either view we cannot agree that the irregularity in misjoinder of parties defendant on the second count affects the merits. This, because:

(1) In Sutton v. Casseleggi, supra, two tenants each holding a part of the locus in quo under a separate lease from a common landlord were joined with their.landlord as defendants in ejectment. In that case recovery of possession was allowed to stand because no substantial injustice accrued to defendants by reason of the error in the proceeding (p. 409). The trouble in that case arose over the damages, and it was held in effect that a judgment for general damages against the two tenants and the landlord could not stand since, there was no mutuality between the tenants in liability. There is no such trouble in the case at bar. It is plainly not against natural justice to hold Doerr, who received the rents from Kahl and had them in pocket, responsible with him in making plaintiff whole, in case plaintiff was the owner and entitled to possession. We are unable to see in what way, then, the irregularity affects the merits of the case.

(2) But we need not let our ruling stand on that foot alone. In this case Doerr, the landlord, did not stand upon his allegation of misjoinder of parties defendant. To the contrary by his answer to the second count he put himself precisely in the attitude he would have been if he had become a party through his own motion — that is, he took the burden of the defense on his own shoulders. He interposed his title and his equities as a bulwark between plaintiff on one side, and his tenant Kahl on the other, this in order to protect the latter and to establish his own right. Not only so, but he pleaded affirmative matter and asked individual relief by way of judgment for improvements and for his outlay in purchase price. He introduced testimony tending to support his affirmative allegations. Under such circumstances he must be held to have waived the misjoinder and to have healed any error in that respect.

If the misjoinder had been apparent on the face of the petition and he had demurred for that cause (as?he must in order to raise the point), certainly he would have waived it, by pleading over to the merits after an adverse ruling on the demurrer. We can see no substantial difference in his present position.

That a landlord who purposely takes upon himself the burden of supporting his tenant’s possession, thereby makes that possession his own and unites his fortunes with his tenant as a joint tortfeasor, and thus make himself responsible if the possession is adjudged wrongful, is supported by authority. [Abeel v. Van Gelder, 36 N. Y. 513.]

The point is ruled against defendants.

IY. At the trial of the ejectment count the decree adjudging title in plaintiff under the first count was put in evidence by plaintiff, supplemented by oral testimony. Defendants assign error in the admission of that decree. They argue that the decree was suspended by a supersedeas bond; that the cause of action on that count was pending and undetermined in this court. But we need not open up (and go into) the comedy of errors below arising from irregularities in entering two separate judgments, taking two separate appeals, etc. For some of those errors defendants are responsible, for others plaintiff must stand sponsor. If defendants had filed a motion in arrest on the first count, calling the court’s attention to the fact that the judgment was premature and should be arrested until the second count was tried, that wóuld have given the lower court a chance to correct the irregularity. If, when the second count was tried, defendants had objected to going to trial for the reason that a final judgment on the first count either' exhausted the jurisdiction of the court or was tantamount to' an abandonment of the second count, the court would have been given a chance to straighten out the tangle. But the defendants did nothing of the sort. They appealed both judgments and (what is more) in this court they asked us to consolidate the cases on’the theory the two records constituted but one case, one judgment and one appeal. This court took that view of it, whether rightly or not, and defendants may not be allowed to now insist on any objection to evidence based on the theory that one cause was pending here undetermined at the time the other was tried below. As defendants procured a rule here that the judgments were one judgment, in effect, they must stand on that theory.

In Stone v. Perkins, 217 Mo. 586, two judgments, one under section 650, the other in trespass for damages, entered on separate trials at separate days on separate counts of a petition, were treated as one final judgment.

But there is no merit in the objection to introducing the finding on the first count as evidence at the trial on the second. That finding and decree were self-executing. The supersedeas bond could have no effect except to stay execution for costs. The pend-ency of the appeal did not destroy the efficacy of the decree as evidence. [Ritter v. Dem. Press Co., 68 Mo. l. c. 461; State ex rel. v. Dillon, 96 Mo. l. c. 61; State v. Barnett, 111 Mo. App. l. c. 557 et seq.]

The point is ruled against defendants.

Y. It is suggested that under Revised Statutes 1899, section 3072, Doerr was entitled to recover for betterments made by him in good faith on the land. By answer he set up certain disbursements made for improvements and asked reimbursement. But section 3072 and succeeding sections of the chapter on ejectment dealing- with improvements contemplate a new proceeding, independent in character, to be commenced by the unsuccessful defendant in an ejectment suit before ouster by writ of possession, to recover for improvements. Section 3073 prescribes the allegations of a petition in that behalf. Section 3074 ordains that such petitioner may have an injunction in aid of his suit to stay ouster under the ejectment judgment until the value of the improvements be ascertained. Other sections provide for procedure in certain contingencies.

However, it has been held that the statutory scheme for recovery for improvements is not preclusive in a certain state of facts. That in a certain class of eases the recovery may be had or a set-off allowed in the ejectment suit itself. That class of cases is aptly defined in Henderson v. Langley, 76 Mo. l. c. 228, to include cases where the defendant in ejectment had purchased the land from the plaintiff or in administration proceedings or a sale under mortgage and had paid the purchaser money, entered into possession and made improvements in good faith, hut failed to obtain the legal title intended to he sold and could not have specific performance. In that class of cases the owner of such legal title or his grantee having notice of such fact will not he permitted to eject such purchaser without accounting for the purchase money and paying for the improvements made. Evidently this case does not fall in that class of cases. In Tice v. Fleming, 173 Mo. l. c. 56-7, Fox, J., construed the Henderson case, supra, to decide that a defendant in ejectment in order to have the value of his improvements considered by way of set-off or recoupment in the ejectment proper must hold possession or occupancy hy a claim of title through the plaintiff, otherwise his action for improvement must he an independent one under the statute. See Bristol v. Thompson, 204 Mo. 366.

It is insisted hy plaintiff that the claim for improvements was taken into consideration by the court by way of abatement to the damages assessed. "Whether that be true or not, we rule the point against defendants, for if the improvements were considered and off-set against the damages, that is the end of it. On the other hand, defendant was not entitled as a matter of law to have improvements considered in the ejectment suit proper, hut must he relegated to his statutory proceeding, if they were not adjusted as claimed by plaintiff.

VI. This brings us to the merits of the first count. The law of the case, we think, was well settled in Welch v. Mann, 193 Mo. 304, on a state of facts so similar in vital particulars as to make that case in point, and it should be taken with this. We have compared the record here with the record there in which one Welch, a purchaser of other property of plaintiff at the same execution sale under the same execution, sued her for title. In the present case there is more positive evidence tending to show the fraudulent design of plaintiff’s former husband in executing the conveyance to plaintiff. But this evidence chiefly fell from the lips of plaintiff’s husband who came from a distant city and went upon the stand to destroy his wife’s title by an expose of his own moral turpitude. It appears sufficiently that this ex-husband has joined hands with defendant Doerr. They are shown to be ancient cronies and (literally) hobnobbing friends. Doerr purchased at the execution sale under an execution levied on Mann’s alleged interest several years after Mann’s conveyance to his wife, here assailed, was executed and put of record, and we think the chancellor would have been justified in believing that he bought at the request or suggestion of Mann himself in a speculative venture depending for ultimate success on the defeat of Mrs. Mann’s title. That Mrs. Mann did not know of, consent to or participate in this fraudulent scheme, if fraudulent it was, is sufficiently shown. As appears in the Welch case, so here, she took title in pursuance of an executed antenuptial contract based on a consideration of marriage. Her good faith, however closely the facts are considered, is not successfully impeached. There was some evidence tending to show that the value of Mann’s real and personal property remaining in his hands after the conveyance to Mrs. Mann, was not of so great value as shown in the Welch case. And some that Mann was indebted to a greater extent than appeared in the Welch case. But the differences in both instances depend on the credit to be given to the evidence of Mann himself, who testified at both trials and is the chief witness now as then to show his debts and assets. It is apparent that he shaded his testimony given at the first trial to aid Doerr and injure his former wife at the second trial. When confronted by this change in his testimony his explanation is not satisfactory. The chancellor heard and saw. We neither see nor hear. We defer to him. The curious may find the substantial facts set forth in Welch v. Mann, supra (q. v.), and no useful purpose can be subserved by restating them. On re-examination we are satisfied with the conclusions reached in the Welch case. We are of opinion the principles of law there declared are applicable here. Hence, as we ruled then, we rule now.

Let the judgment be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    GEORGE M. TURNER v. A. B. MORRIS, Appellant.
    Division One,
    July 1, 1909.
    APPELLATE JURISDICTION: Title to Real Estate: Replevin. To give the Supreme Court jurisdiction of the appeal on the ground that title to real estate is involved, the record must show that the title to the real estate mentioned in the pleadings will he directly affected hy the judgment rendered. So that where plaintiff sued in replevin for wheat, whose value the jury found to he $82.50, and defendant pleaded that he bought the land on which the wheat was then growing and received a warranty deed from plaintiff, the Supreme Court does not have jurisdiction, for the judgment rendered will not affect the title, and the judgment may be satisfied by paying the $82.50.

      Appeal from Barry Circuit Court. — Eon. F. C. Johnston, Judge.
    Transferred to St. Louis Court of Appeals.
    J. S. Davis for appellant.

      C. M. Landis for respondent.
   WOODSON, J.

This is a suit in replevin, brought by the plaintiff before a justice of the peace, in Barry county, to recover sixty-six and two-thirds bushels of wheat, the value of which was assessed by the jury at the sum of $82.50.

The defendant filed answer, under oath, alleging that title to real estate would be an issue in the case, tfor the reason that he had purchased by general warranty deed from plaintiff the land on which the wheat in controversy grew, during the month of February, 1905, and that plaintiff made no reservation of the growing wheat thereon in said deed; and that all of plaintiff’s- interest in the wheat was sold to defendant as a part of the land. Thereupon, under and by authority of section 3951, Revised Statutes 1899, the justice certified the cause to the circuit court of Barry county. A trial was had before the court and a jury, which resulted in a verdict and judgment for the plaintiff. In due time defendant filed a motion for a new trial and in arrest of judgment, which'were by the court overruled. After excepting to the action of the court in that regard, defendant appealed the case to this court.

Counsel for respondent insists that this court has no jurisdiction to entertain or determine this appeal, for the reason that- the amount involved is under $4,500, and that title to real estate is not involved within the meaning of section 12 of article 6 of the Constitution, which gives this court appellate jurisdiction of cases involving title to real estate.

In our opinion that insistence is well taken, for the reason that we have repeatedly held that before an appeal can be entertained by this court on the ground that title to real property is involved within the meaning of that section of the Constitution, the record must show that the title to the real estate mentioned in the pleadings will be directly affected by the judgment or decree to be rendered in the cause. And, although the title thereto may be incidentally, collaterally, or unnecessarily inquired into at the trial, for the purpose of determining the issues involved, yet., if the judgment or decree rendered by the trial court does not directly affect the title to the real estate, and can be satisfied by the payment of money, then the appeal should go to the Court of Appeals. [Price v. Blankenship, 144 Mo. 203; Balz v. Nelson, 171 Mo. l. c. 688; Christopher v. Home Saving Assn., 180 Mo. 568.]

Hnder no possible circumstances could the judgment rendered by the circuit court in this case affect the title to the real estate purchased by appellant from respondent; and the same may be satisfied by paying $82.50, the amount of the judgment, with interest and costs.

We are, therefore, of the opinion that this court has no jurisdiction over this appeal, except to certify it to the St. Louis Court of Appeals, which is accordingly done.

All concur.


text:
    L. F. McCOY et al., Appellants, v. JOSEPH J. RANDALL et al.
    Division One,
    July 1, 1909.
    1. APPELLATE JURISDICTION: Special Taxbills. Where the aggregate of special taxbills which plaintiffs seek by their ¡injunction to have declared illegal and void exceeds $4,500, and they all belong to a single defendant, the Supreme Court has jurisdiction of the appeal. The fact that none of them individually amounts to $4,500 and that they were originally issued against separate pieces of property owned by various persons who sold them to the one defendant, does not deprive the Supreme Court of jurisdiction.
    2. -: Amount in Dispute. Upon appeal the interest of both parties must be considered in determining the amount in dispute.
    3. TAXBILLS: Paving Street: Plans Not Filed: Specifications Filed. Where the charter requires plans and specifications of the proposed public work to be filed with the city clerk or engineer, by “plans” is meant a profile, drawing, chart or picture of the work to be done, and by “specifications” is meant a detailed statement of the work, such as the manner of doing it, the materials to be used, the dimensions of the work, etc. The purpose of the plans is to furnish information to prospective bidders of the character of the work to be done, and thereby to enable them the more intelligently to bid, the object being to increase the number of bidders and competition and hence to reduce the cost to property-owners. But where the public improvement is the paving of a street, it cannot be seen what useful purpose would have been served by filing a profile or picture ,of the street; and if the ordinance was definite, and the specifications, timely filed, were explicit as to details of the work, the taxbills will not be held to be illegal and void because no plans were filed.
    4. -: Specifications: Street Grade. It is not necessary that the specifications for a street pavement state what was the established grade of the street. That is ascertainable from the ordinances.
    5. -: Accepting Bid: By Viva Voce Vote. The taxbills are not void because the bid was not accepted by ordinance. Acceptance may be made by viva voce vote of the council. The acceptance of the lowest and best bid is not the exercise of a legislative function.

      6. -: Extension of Time. Where the original ordinance authorizing the public improvement to be made, provided for an extension of time in which it was to be completed, and the ordinance granting an extension was passed prior to the expiration of the time first given, the taxhills are not illegal because the wo'rk was not completed within the time first stated.
    Appeal from Jackson Circuit Court. — Hon. Henry L. McGune, Judge.
    Affirmed.

      A. B. Strother and James G. Smart for appellants.
    (1) The Supreme Court has not jurisdiction of this suit and it should be referred to the Kansas City Court of Appeals. The plaintiffs joined in the suit because they had a common interest in the questions of law involved and to avoid a multiplicity of suits and to save costs. And while the aggregate amount of the taxbills levied against their respective properties was in excess of forty-five hundred dollars, not one of the taxbills was equal to this sum. The aggregate amount should not be considered for the purpose of conferring jurisdiction on this court; but the amount assessed against the property of each plaintiff should control in determining the question of jurisdiction. Laws 1901, p. 107 (new section 1649a); Amendment to the Constitution, sec. 3, p. 93, E. S. 1899; Whecless v. St. Louis, 180 IT. S. 379; 4 Federal Statutes Ann., p. 265 (25 Stat. L., IT. S. 434). (2) The filing of plans and specifications with the city clerk is a condition precedent to the letting of the contract. The evidence shows no plans were ever, filed. There were so-called specifications filed, but these were wholly inadequate and could not be properly called specifications. There was nothing upon'whieh an intelligent bid could be based. Nothing to show the cross-section of the street or the quantity of earth to be removed or fills to be made in the grading. This departure from the plain letter of the charter requirements renders the contract and the taxbills void. Laws 1901, sec. 5859, p. 65; De Soto ex rel. v. Showman, 100 Mo. App. 329; Barber Asphalt Paving Co. v. O’Brien, 128 Mo. App. 267; Independence v. Nagle, 114 S. W. 1129; McCormack v. Moore, 114 S. W. 40”; Dickey v. Holmes, 109 Mo. App. 724; Kneeland v. Wisconsin, 18 Wis. 411; Wells v. Burn-ham, 20 Wis. 112; Ricketson v. Milwaukee, 105 Wis. 591; State ex rel. v. Benzenberg, 108 Wis. 435; People v. Board of Improvement, 43 N. T. 227; Clark v. Lancaster (Neb.), 96 N. W. 599; Mozit v. Pittsburg, 137 Pa. St. 548; Kirksville v. Coleman, 103 Mo. App. 215; Welty’s Law of Assessment, sec. 290, p. 435. The charter (Laws 1901, sec. 5859, p. 65), provides that the contract shall be let “on plans and specifications” filed with the city clerk. The Legislature used these words, “plans and specifications,” with knowledge of their meaning. They do not mean one and the same thing. In architecture, building, civil engineering, in the construction of public improvements and in every other calling, where the words are used, they have a well defined meaning and signify two very different things. In the charter of cities of the third class, these words are joined by the conjunction “and.” The language is “plans and specifications.” Kneeland v. Milwaukee, 18 Wis. 413; Wells v. Burnham, 20 Wis. 112; Burke v. Kansas City, 34 Mo. App. 578; 22 Am. and Eng. Ency. Law (2 Ed.), 834; Jenny v. Des Moines (72 N. W. 550), 103 la. 347; Ampt. v. Cincinnati, 80 Ohio S. and C. P. D. 624; 6 Words and Phrases Judicially Defined, 5399; State v. Kendall, 15 Neb. 273; Worcester Dictionary; Webster’s Unabridged Dictionary; Black’s Law Dictionary. (3) Ordinance No. 1749 authorizing the work, passed April 4,1903, contains these words at the foot of section 2: “In all other particulars the work both of grading and paving shall conform to the plans and specifications now on file in the office of the city clerk.” At the time of the passage of this ordinance there were no plans on file, and the specifications then on file were inadequate and insufficient. This ordinance attempted to make papers supposed to be in existence — -but not in existence — a part of itself. The ordinance was therefore incomplete and invalid. No bidder could tell without searching the records of the city clerk what was the established grade of the street or what was the cross-section of the street; nor was there anything to show the quantity of earth to be removed or the fills to be made. McCormick v. Moore, 114 S. W. 40; Independence v. Nagle, 114 S. W. 1129; Barber Asphalt Paving Co. v. O’Brien, 128 Mo. App. 267; Dickey v. Holmes, 10'9 Mo. App. 721. (4) The State law, the charter of Independence (Laws 1901, sec. 5859, p. 65), provides that if no remonstrance is filed “then the council shall have power to cause a contract for said work to be let to the lowest and best bidder.” The evident meaning of this language is that the council shall, by ordinance, enter into the contract for doing the work. The bid of W. C. Rice (the only person who offered a bid and to whom the contract was let) was accepted by a viva voce vote of the council, no ordinance having been passed accepting the same,’ and the contract was confirmed merely by a viva voce vote of the council, no ordinance having been passed in the confirmation thereof. We respectfully submit that this was not a compliance with the charter and that the contract was void and the taxbills, issued in pursuance thereof, are void. Laws 1901, p. 65, sec. 5859; also, sec. 5858, p. 63; Sedalia to use v. Donahue, 190 Mo. 422; Wheeler v. Poplar Bluff, 149’ Mo. 36. (5) The council did not have the power to extend the time as it attempted to do, and the work not having been completed in the 120 days specified, the taxbills are void. Spalding v. Forsee, 109 Mo. App. 675; Smith v. West-port, 105 Mo. App. 221; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376.

      Paxton S Bose for respondents.
    (1) All the taxbills in question, amounting to about $5,000', are owned by the defendant, the First National Bank, and this fact gives this court jurisdiction of the appeal. G-artside v. Gartside, 42 Mo. App. 513, 113 Mo' 348; Kuh v. Garvin, 53 Mo. App. 64, 125 Mo. 547; Evens & Howard Fire Brick Oo. v. St. Louis Smelting & Refining Co., 48 Mo. App. 634; Washington Market v. Hoffman, 101 U. S. 112. (2) The requirement of the statute that plans and specifications be on file at the time of letting the contract is directory in. its nature and not mandatory except so far that there must be enough on file to enable the bidders to get a clear idea of the work contemplated. Plans are not required if the specifications give a clear and definite description. Morley v. Weakley, 86 Mo. 456; Sheehan v. Owen, 82 Mo. 461. (3) There was an ordinance passed for the doing of the work, there was a general ordinance providing for the manner of letting the contract, and an ordinance levying the tax and providing for the bills. This covered the whole ground, and there was no need for two more ordinances, one for awarding the contract and another for confirming it. Sedalia to use v. Donahue, 190 Mo. 407. (4) The original ordinance having provided for an extension of time, and the ordinance granting an extension having been passed before the expiration of the time first allowed, the extension was legal. Hund v. Rackliffe, 192 Mo. 312. (5) There was no effort to remonstrate, no notice to the contractor, no protest, no attempt to enjoin, and after plaintiffs have waited till the taxbills were issued and sold, the law will not cancel the bills and so work a confiscation on mere quibbles and irregularities such as might happen in any proceeding. Warren v. Barber Asphalt Co., 115 Mo. 580; Johnson v. Duer, 115 Mo. 378; Hnling v. Bnndara Flag Stone Co., 87 Mo. App. 356; Jaicks v. Merrill, 201 Mo. 109.
   WOODSON, J.

This was an equitable proceeding begun in the circuit court of Jackson county for the purpose of enjoining defendants from prosecuting any suits to collect special taxbills issued against the respective lots or parcels of ground belonging to the plaintiffs by the city of Independence, a city of the third class, for' grading and paving West College avenue from the west line of Delaware street to the western limits of the city, a distance of about thirty-eight hundred feet; and for the purpose of having said taxbills declared illegal, null and void, and the cloud cast upon the title of the respective plaintiffs to said lots or parcels of ground by reason thereof removed. The taxbills involved in this case are in the usual form and aggregate the sum of $4,992.47, with interest.

There was a trial had before the court, which resulted in a finding of the facts and a rendition of judgment in favor of the defendants. In due time and in proper manner, plaintiff appealed to this court.

In conformity to the charter of cities of the third class, r resolution by the city.council was duly passed declaring the grading and paving necessary. On April 4, 1903, a special ordinance was duly enacted authorizing the grading and paving to be done. On May 22, 1903, by viva voce vote, the work, after having been duly advertised, was awarded to W. C. Rice for the sum of ninety-four cents per square yard, he being the only bidder. No plans for doing the work were filed with the city clerk by the city engineer at any time, as provided by the charter of such cities, but specifications therefor, as thereby provided for, were on file during all of the times hereinafter mentioned. Said specifications were as follows:

“Specifications for grading and paving with broken stone West College avenue from west line of Delaware street to the west line of the northeast quarter of the northwest quarter of section 3, township 49, range 32.
“Resolution No. 132, approved March 7,1903.
“Ordinance No. 1749', approved April 4, 1903.
“Time to complete the work — days from date of contract.
GRADING.
“Said street shall be graded from street line to street line to the established grade and cross-section. Under this head, will be included all work necessary for the formation of the roadway, sidewalks and park spaces, including removing timber, brush, rock, etc.
PAVING.
“That said street for a width of thirty feet in the center thereof be paved with good hard limestone. Said portion of said street to be paved shall . . . brought to a subgrade, twelve inches below and parallel to the finish grade and cross sections of said street, which shall be rolled with a steam roller weighing not less than ten tons until the subgrade presents a uniform hard surface with proper cross sections and elevations; any soft or spongy places are to be removed and filled with proper material and rerolled.
“Upon this subgrade shall be placed a six-inch course of broken stone ranging in size from one to four-inch cubes, which shall be rolled with a steam roller weighing not less than ten tons until thoroughly compacted, after which a course of broken stone ranging in size from one to three-inch cubes shall be spread on the first course to such a depth that after being thoroughly compacted the surface of said paving shall conform to the grade and cross section of said street, after which a thin course of rock screening shall be spread evenly over the surface of said pavement and thoroughly worked into the interstices until they are full by liberal use of water and steam roller.
“Bidders will state price per square yard of stone pavement, including all work required by these specifications.
‘ ‘ The work must be executed strictly in accordance with these specifications and under the instruction of the city engineer and strictly to grade and cross section as shown by the stakes set from time to time.
“All work must be finished in a neat, substantial manner.
‘ ‘ Payments will be made in special taxbills against the' property liable therefor. H. S. Pendleton,
“City Engineer.”

The ordinance authorizing the work to be done provided, among other things, that “in all other particulars the work both of grading and paving shall conform to the plans and specifications now on file in the office of the city clerk.”

The work by the terms of the ordinance was to be completed in one hundred and twenty days from the date on which the contract was awarded unless stopped or delayed, etc., and before the expiration of that time an extension of sixty days was duly given by ordinance, and before the expiration of the sixty days the work was completed.

After the completion of the work, the city, by ordinance duly enacted, levied the special taxes, the collection of which is hereby sought to be enjoined.

Such additional facts as may be necessary for the proper determination of the case will be noted during the course of the opinion.

I. While appellants brought this case to this court on appeal, yet they now insist that it has no jurisdiction to hear and determine the same, but the jurisdiction over the same rests with the Kansas City Court of Appeal, and that it should be certified to that court for adjudication. •

The appellants contend that because of the common interest they had in the legal questions involved and to avoid a multiplicity of suits and to save costs, they had the right to join in bringing this suit. And that while the aggregate amount of the taxbills levied against their respective properties was in excess of $4,500, yet not one of them was equal to that sum. It is therefore argued by counsel for appellants that the aggregate amount of said taxbills should not be considered for the purpose of fixing jurisdiction in this case, but the amount issued against the property of each plaintiff should control in determining that question.

Upon the contrary, counsel for respondents contend that this court has jurisdiction of this cause, for the reason that the record shows that the amount of these taxbills is about $5,000,- and that all of them belong to and are owned by the respondent bank, which fact fixes the amount in dispute at a sum in excess of $4,500.

The record discloses the fact that the respondent bank is the real party in interest in this case, that it is the real owner of all of the taxbills in question, and that all of the other respondents are but nominal parties, they having disposed of all of their interest in and to the bills to the bank. That being true, the amount in dispute between the appellants and the respondent bank is in excess of $4,500, which amount gives this court jurisdiction. [Session Laws 1901, p. 107, New Sect. 1649-a.]

This question came before the Supreme Court of the United States in the case of Washington Market Company v. Hoffman, 101 U. S. 112. In that case the Washington Company had offered to the highest bidders at public auction the stalls in the market house for a specific term; after the expiration of that time, some of such bidders filed their bill to enjoin the company from selling the stalls leased to them, claiming that they had the right to occupy them as long as they chose to carry on their business as butchers, provided they thereafter paid rent as it from time to time should become due. Prom a judgment of the Supreme Court of the District of Columbia in favor of the stall men, the Market Company appealed to the Supreme Court of the United States. In the latter court the stall owners moved to dismiss the appeal for the reason that the value of no one of their claims or interest exceeded the sum of $2,500, the amount which under an act of Congress would entitle any one of them to an appeal to the Supreme Court; but in passing upon that motion the latter court refused to dismiss the appeal, for the reason that the record showed that the aggregate value of the company’s rights to those stalls was $60,000', which sum gave the latter jurisdiction under said act.

In Gartside v. Gartside, 42 Mo. App. 513, the plaintiffs’ petition showed no value, so that, so far as they were concerned, the appeal was to the court of appeals. That case is like the one at bar in this, that the lower court held against the plaintiffs and they took the appeal. When it reached the Court of Appeals, the record showed that the defendant was trustee of a valuable estate, and that his trusteeship was reasonably worth to him much more than $2,500; and the court, because of defendant’s interest, although plaintiffs appealed, transferred the case to this court, which took charge of it without question. [113 Mo. 348.]

In Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo. App. 634, plaintiff’s petition showed no interest which could he stated in money, hut defendant’s plant was valued at $400,000. The plaintiff, as in the case at bar, failed in the lower court, and took the appeal; and the St. Louis Court of Appeals, in transferring the case to this court, said (p. 635): “It is settled that, where the right of appeal depends on the value of the matter in dispute, such value must be estimated in money. When the object of the suit, however, is not to obtain a money judgment, hut other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. If either is necessarily in excess of the sum within the appellate jurisdiction of this court, then the Supreme Court has exclusively cognizance of the appeal. We took this view in the case of Gartside v. Gartside, 42 Mo. App. 513, in transferring that case to the Supreme Court, and that court, in refusing to remand the cause to us upon a motion made to that effect, affirmed our holding.”

(Syl.) “The Supreme Court has jurisdiction of an appeal by an attaching creditor from a judgment in favor of an interpleader in a suit by attachment, if both the value of the property attached and the aggregate of the demands of the several attaching creditors exceed $2,500; and this, though the demand of the appellant alone is less than that sum.” [Kuh v. Garvin, 53 Mo. App. 64.] And the court said (p. 65): “The case of Humphreys v. Milling Co., 98 Mo. 542, presented quite a similar state of facts. There the defendant, Judson, held the sum of $9,818.24 in trust for certain creditors of the Atlantic Milling Company, known as creditors of the ‘new running.’ Humphreys was one of the secured creditors to the extent of $2,046. He brought his action in equity for the appointment of a receiver to take charge of the fund, and that he he paid ont of it the amount of his debt. He alleged that the transaction with Judson was to hinder and delay creditors. The Supreme Court compelled this court by mandamus to certify the case, upon the ground that more than $2,500 was in dispute.” [Kuh et al. v. Garvin, 125 Mo. 547.]

And as suggested in brief by counsel for respondents, “ Suppose,, for instance, the case at bar were transferred to the Court of Appeals; and suppose, further, that that court were to cancel taxbills of more than $5,000 in value belonging to the First National Bank, then it would be a manifest absurdity to say that there had never been more than $4,500' in dispute. ’ ’

According to the foregoing authorities, we are clearly of the opinion that this court and not the Kansas City Court of Appeals has jurisdiction over this appeal. And the authorities cited by counsel for appellants and relied upon as holding that the cause should be transferred to the Court of Appeals are not applicable to the facts of this case. They concern only questions of original jurisdiction in lower courts, where, as a rule, it is only necessary to consider the value of the plaintiff’s interest in order to determine such jurisdiction; but upon appeal the interest of both parties must be considered in determining the amount in dispute.

We, therefore, hold that this court has jurisdiction of this appeal.

II. It is next insisted by counsel for appellants that the taxbills in question are null and void, for the reason that there were no plans of the proposed work filed with the city clerk, as required by the city charter, prior to the time the contract for doing the same was awarded, or at any other time, for that matter.

Section 5859, as amended in 1901 (Laws 1901), provides, if no remonstrance is filed, that, “then the council shall have the power to cause a contract for said work to be let to the lowest and best bidder on plans and specifications filed therefor with the city clerk by the city engineer, or other proper officer, not less than one week’s advertisement for bids thereon being made in some newspaper published in the city, ’ ’ etc.

Counsel for appellants take the position that the filing of these plans and specifications with the city clerk is jurisdictional, a condition precedent to the letting of the contract; and that no valid contract for doing the work could be entered into without that condition had first been performed. While upon the other hand, it is contended by counsel for respondents, first, that said provision of the charter is directory only and not mandatory; and, second, that if mandatory, then there was a substantial compliance in this case with its provision.

It is not contended that specifications for doing the work were not filed with the clerk, as provided by the charter, but the contention is that the contract is void, because plans therefor were not also filed with the clerk.

The word “plans” as used in the charter means a profile, drawing, chart or picture showing in a general way the character of the work to be done, while the word “specifications” means a detailed statement of the character of the improvements which are to be done. The clear purpose of this charter provision is, that by filing the plans and specifications with- the city clerk, information would thereby be furnished to prospective bidders which would better enable them to understand the character of the improvements to be made; and, also, to better enable them to intelligently figure upon the cost thereof. With such knowledge all bidders would be better able to make an intelligent bid for tbe -work, and thereby make the competition between them real, and the cost thereof to the property-owners more reasonable than it would more likely be where they did not possess such knowledge.

Viewing this contract in the light of that charter provision, can we declare it void as a matter of law for the reason simply that plans were not filed along with the specifications in the office of the city clerk? Counsel for appellants insist that we should answer that question in the affirmative, while respondents contend it should be answered in the negative.

The former cite and reply upon the following cases as supporting their insistence: City of DeSoto ex rel. v. Showman, 100 Mo. App. 323; Barber Asphalt Paving Co. v. O’Brien, 128 Mo. App. 267; City of Independence v. Nagle (Mo. App.), 114 S. W. 1129; Dickey v. Holmes, 109 Mo. App. 721; McCormick v. Moore, 134 Mo. App. 669. None of those cases cover the exact question presented by this record and now under consideration, for in all of those cases there was neither plans nor specifications filed, as required by the charter, but in each and all of them there was a total disregard of the charter provision.

Counsel for respondents rely upon Morley v. Weakley, 86 Mo. 451, and Sheehan v. Owen, 82 Mo. 456, as supporting their contention. In the former case the ordinance authorizing the work to be done provided, in detail, as to the material to be used and the manner of doing the macadamizing, while a general ordinance then in force required a plan or profile of the work with specifications to be filed, showing the character of the material and work to be done. This latter ordinance was not complied with, and for that reason the property-owner tried to escape paying the taxbill. In discussing this question in the former case, Judge Black, in speaking for the court, used this language: “The ordinance with respect to maeadamizing, curbing and guttering, provides in detail of what material these classes of work shall be made, how the stone shall be placed and how prepared. In short, they are themselves specifications, and there was no need of anything further to give either bidders or the public full information. The ordinance requiring plans and specifications can have full application in matters of grading and the like, where they are essential to give bidders a full understanding of the work to be done and the manner of doing it, but it should not be construed to require the engineer to do that, by way of specifications, which was clearly stated in the ordinance.” And in the latter case, Judge Henry, speaking for the unanimous court, said: “It is conceded that no profile or specifications were filed in the engineer’s office; but it was proved that it was not customary to make profiles of that bind of work but only of bridges_ and similar structures, and that the work in this instance was let according to the usual course pursued before and since. We cannot see that a profile of the work in question was necessary to enable one to bid on it intelligently. It consisted of macadamizing, paving and guttering. A view of the street upon which the work was to be done, with the ordinance before the bidder, served better than a profile to give an idea of the extent and character of the work. The ordinance ordering the work expressly stated of what materials and the manner in which the work was to be done, and the precise quality of the work upon the street, and was as minute and exact' in these particulars as could be required in any specifications the engineer might have prepared. We do not think that plaintiff should, as defendant would have him, sustain such a loss for the omission of the city officials to do an act, which, done or omitted, could not materially have affected defendant’s interests. The ordinance was published in a daily paper, recorded in the city book of ordinances, and the street upon which, the work was to be done was open to inspection and gave those who wished to hid on the work a better idea of the extent and character of the work than any profile conld possibly have done, and it is by no means clear that the city officials have not properly construed the ordinance as not requiring the profiles of such work.”

The only difference existing between those cases and this is, -in the former two the ordinance required the plans to be filed, while in this the charter made the requirement. But, clearly, that difference could in no manner have a different legal effect upon the contract for doing the work, for in each ease the plans and specifications were required to be filed for the purpose of furnishing information to prospective bidders, and they would furnish no more or less’ information when required by charter than when required by ordinance.

As was said in the Sheehan-Owen case, supra, when we read the ordinances ordering this work to be done, in the light of the specifications which were on file with the city clerk, and in the presence of the street which was to be improved, it is difficult to see what possible harm was done or injury inflicted upon the property-owners by the omission of the city engineer to make and file with the clerk plans for the work in addition to the specifications. There was nothing complicated of difficult to understand about grading and macadamizing this street which could call for a profile or picture of it, which might be of great assistance when bidding for and constructing bridges or other large structures; but in this simple class or character of work, with all of the details thereof fully stated in both the ordinance authorizing the work to be done and in the specifications which were on file in the clerk’s office, no possible wrong or injury could be done to any one by the simple omission to file the plans as required by the charter.

We, therefore, hold that the bills in question are not void for that reason.

III. The third insistence of counsel for appellants is, that the specifications on file in the clerk’s office “were inadequate and insufficient.”

We are somewhat at a loss to understand just what is meant by this contention, as counsel have not pointed out in just what way the specifications are insufficient, without it is its failure to state what was the established grade of the street. If that is what counsel have in mind, then that insistence is untenable, for the reason that the grade of a street can only be established by ordinance, which was done in this case, and that ordinance was a public law of the city, and was, presumably, on file in the office of the city clerk, the same office wherein the specifications were on file; and it would have been no more trouble for bidders to have examined the ordinance establishing the grade than it would have been for them to have examined the specifications upon that point, which could have been nothing more than an abridgement or copy of the ordinance. By following those directions and specifications, no trouble or inconvenience would have been encountered either in bidding for the work or in performing it according to the terms of the contract. By so doing the improvements would be done according to contract, and that is just what was done in this case, as was shown by the testimony of all of the witnesses for both sides; those for appellants as well as those for respondents united in saying the work was a good job — no substantial criticism fell from the lips of any of them. And after all that, the objection here urged seems to come too late to command serious consideration, even though there had been merit in- it, which we deny, had it been timely presented to the proper city authorities.

IY. The fourth contention of appellants is, that the contract for doing this work was null and void for the reason that the bid for doing the same was by the city accepted and awarded by a viva voce vote of the council, and not by an ordinance duly enacted.

There is no language contained in the charter of the city which requires such acceptance to be made by ordinance. The charter in that regard simply provides that “the council shall have power to cause a contract for said work to be let to the lowest and best bidder.”

It is not contended that the bid accepted was not the lowest and best, but it is insisted that the contract is void because the bid was not accepted or contract awarded by an ordinance duly executed. No authority has been cited which sustains the contention of appellants’ counsel; and no good reason has been suggested why such solemn form of acceptance should have been resorted to. The work was authorized to be done by special ordinance, according to the specifications on file, and according to the general ordinances then in force in the city. That is all this court has ever required in that regard; and in our judgment, that was sufficient in this case, where the record shows the contract was accepted by a viva voce vote.

This was the view taken of this question by this court when it was presented in the case of Morley v. Weakley, 86 Mo. 451. On page 456 the court uses this language: “The various ordinances, general and special, under which the work was done, were all approved by the mayor. The mere matter of awarding the contracts, under existing laws, was not the exercise of legislative functions, so that the authorities cited by plaintiff in error have little or no application here. Moreover, we do not understand the ordinances to require the mayor to act separately in awarding contracts, but rather that he shall act in conjunction as presiding officer.”

The same is true of this case. The acceptance of the bid by • the city of the awarding of the contract to the successful bidder is not the exercise of legislative functions; and there can be no earthly reason for holding such should have been done by ordinance.

V. It is next insisted by counsel for appellants that the record discloses the fact that Joseph J. Randall was interested in the contract for doing this street improvement, and that being a member of the council which ordered the Work to be done and the contract executed, the contract was thereby nullified, and, consequently, the taxbills are- illegal, null and void.

We have carefully read all of the evidence introduced bearing upon that question, and we are fully satisfied that it was not sufficient to justify any court in finding Randall was interested in said contract. The trial court found against appellants upon that issue, and very properly so, in our judgment. The evidence was not sufficiently strong to raise even a suspicion against the official conduct and good faith of Randall in the matter. The courts should not condemn the acts of public officials without the evidence is sufficient to show misconduct upon their part.

VI. The sixth objection urged against the validity of these taxbills is, that the work was not completed within the time stipulated for in the contract.

The contract provided that the work should be completed within one hundred and twenty days from the date thereof, unless, etc. • The contract was executed May 22, 1903, and on August 3, 1904, by ordiance, the time for completing said work was extended sixty days from and after the expiration of the original one hundred and twenty days. The evidence shows and the court found that the work was completed three days before the expiration of the sixty days’ extension given.

This court has held that, where the original ordinance authorizing the improvements to be made provides for an extension of time for its completion, and the ordinance granting the extension was passed prior to the expiration of the time first given, then such extension was valid. [Hund v. Rackliffe, 192 Mo. 312.] The facts of this case bring it within the rule announced in that, which is controlling upon us in this.

VII. The last insistence of counsel for appellant is, that the work was not done according to the contract.

In another paragraph we touched upon this question, and there stated that the evidence showed that the contract had been substantially complied with. All the testimony in the case shows not only a substantial compliance but almost a literal compliance with the terms of the contract. In fact, much more so than any of the cases to which our attention has been called.

So, looking at this case from any of the view points suggested by counsel for appellants, we must hold that - none of them are tenable, and for that reason the trial court correctly found for respondents. And, in addition, this being an equity case, we should defer largely to the findings of the trial court as to all issues of fact. [Huffman v. Huffman, 217 Mo. 182.]

We are, therefore, of the opinion that the judgment should be affirmed; and it is so ordered.

All concur.