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    WESTERN TIE & TIMBER COMPANY, Appellant, v. JOHN A. PULLIAM et al.
    Division Two,
    July 15, 1911.
    1. DRAINAGE DISTRICT: Former Trial at Law: Injunction: Res Adjudicata. Where in a proceeding in the county court co organize a drainage district, assess benefits, let contracts to construct drainage ditches and issue bonds, a landowner appeared, contested the proceedings upon the merits and suffered defeat, the merits of that case cannot be litigated anew by a suit in equity to enjoin the issuance of the bonds, the letting of contracts and the assessment of benefits, and the landowner, who had his day in court, is bound by the decision of the county court on all questions which were raised or could properly have been raised in that tribunal, and as to all such questions the matter is res adjudicata.

      2. -: -: Jurisdiction of Parties: Judicially Determined: Collateral Attack. A landowner is precluded in a collateral attach, by injunction, upon the judgment of a county court organizing a drainage district, from contending that certain landowners were not properly summoned or served with process, where the county court made an order reciting that all landowners had been notified. The statute authorizes the county court to find whether due notice has been given, and it was for it to determine the sufficiency of the proof, and having judicially determined the matter its adjudication thereof is not vulnerable to attack in a collateral proceeding.
    3. -: Sale of Bonds: Injunction. Where the bonds of the drainage district have been sold an'd delivered, the court will not consider, in an injunction suit to enjoin the issuance of the bonds, the question of whether the issuance of the bonds was valid.
    Appeal from Ripley Circuit Court. — Hon, Jesse C. Sheppard, Judge.
    Affirmed.

      Charles O. Barth and Bloch & Sullivan for appellant.
    (1) The proceedings for the organization of this drainage district are controlled by the drainage law in force at the time; the subsequent transactions, by the law then in force. State ex rel. v. Taylor, 224 Mo. 463. (2) Under the law in force when these proceedings were had, personal service upon landowners resident in the county was required. R. S. 1899, sec. 8286. (3) The affidavit filed was not sufficient to authorize an order of publication to landowners not residents of the county. R. S. 1899, sec. 8286; Harness v. Cravens, 126 Mo. 247; Schell v. Leland, 45 Mo. 292; Tooker v. Leake, 146 Mo. 341; Crossland v. Admire, 149 Mo. 656; Parker v. Burton, 172 Mo. 91; Cummings v. Brown, 181 Mo. 717; Yan Natta v. Real Estate Co., 221 Mo. 379; Wright v. Hink, 193 Mo. 132. (4) Jurisdiction of infant landowners could not be acquired by service upon their guardians. Hendricks v. McLean, 18 Mo. 37; Smith v. Davis, 27 Mo. 300; Baumgartner v. Guessfield, 38 Mo. 41; Railroad v. Campbell, 62 Mo. 588; Campbell v. Light Co., 84 Mo. 367; Fischer v. Siekmann, 125 Mo. 176. (5) Without due service of process upon those whose lands are to be assessed, the county court had no jurisdictions to proceed to judgment organizing the district. Eaton v. St. Charles, 8 Mo. App. 177, 77 Mo. 493; State ex rel. v. Wall, 153 Mo. 222; Whitely v. County, 73 Mo. 30; Anderson v. Pemberton, 89 Mo. 66; In re Avenue, 121 Mo. 105; Names v. Comrs., 30 Mich. 490; McKee v. Hull, 69 Wis. 662; State v. Lyon, 73 Wis. 601; Fraser v. Trelawney, 129 Wis. 377. (6) Without proper service of process upon those whose lands were to be taken for a right of way, the county court had no jurisdiction to organize the district or establish the drain. Williams v. Kirby, 169 Mo. 628; In re Hill, 200 Mo. 643; Anderson v. Pemberton, 89 Mo. 66; Wright v. Wilson, 95 Ind. 412. (7) Upon the petition filed, the county court had no jurisdiction to order the construction of the drain which it has ordered. R. S. 1899, secs. 8279, 8280, 8281,' 8290, 8291; In re Essex Avenue, 121 Mo. 105; Lagar v. County, 100 Minn. 85; Jurries v. Virgens, 104 Minn. 75. (8) The county court was without power to issue and sell bonds of this alleged drainage district. R. S. 1899, sec. 8279; R. S. 1909, sec. 5579; R. S. 1899, sec. 8998; R. S. 1909, sec. 5603; State ex rel. v. Taylor, 224 Mo. 464; State ex rel. v. County, 46 Mo. 231; Steines v. County, 48 Mo. 177; Thornburg v. School, 175 Mo. 23; Evans v. McFarland, 186 Mo. 720. (9) The amended petition was an abandonment of the original. Hawkins v. Massie, 62 Mo. 553; Bobb v. Bobb, 89 Mo. 418; Ingwerson v. Railroad, 205 Mo. 335. (10) The county court was without power to damage appellant’s lands by this proposed drain, to be constructed without any outlet for the water. Constitution, art. 2, sec. 21; R. S. 1899, sec. 8285; Jurries v. Virgens, 104 Minn. 75. (11) Appellant was entited to relief by injunction. State ex rel. v. Taylor, 224 Mo, 47; Tie Co. v. District; 226 Mo. 420; R. S. 1909, sec.'2534; Casby v. Thompson, 42 Mo. 136; Bank v. Kercheval, 65 Mo. 688; Towne v. Bowers, 81 Mo. 495; Turner v. Stewart, 78 Mo. 490; Overall v. Ruenzi, 67 Mo. 207; Society v. Hudson, 85 Mo. 32; Leslie v. St. Louis, 47 Mo. 479; Verdin v. St. Louis, 131 Mo. 74; State ex rel. v. County, 51 Mo. 370; Newmeyer v. Railroad, 52 Mo. 81; Richardson v. McReynolds, 114 Mo. 641; Jones v. Williams, 139 Mo. 37; McPike v. West, 71 Mo. 199; Monroe v. Crawford, 163 Mo. 181; Spurlock v. Dornan, 182 Mo. 242; Const., art. 2, sec. 21; Holmes v. Kansas City, 209 Mo. 530; Fraser v. Mulaney, 129 Wis. 387; Ruhland v. Jones, 55 Wis. 673; Commission v. Winn, 53 So. 778; Belstonow v. Pierce, 101 Minn. 274; Lager v. County, 100 Minn. 85; Jurries v. Virgens, 104 Minn. 71; Johnson v. Clontarf, 98 Minn. 287; Campbell v. Youngstown, 114 N. W. 416; Railroad v. Dudgeon, 64 Ark. 108; Bruggink v. Thomas, 125 Mich. 9.

      Thomas F. Lane for respondents.
    (1) The appellant was not entitled to injunctive relief, either on the face of its bill, or under the facts -in evidence. Therefore, the action of the court below dismissing appellants’ petition was right. 1 High on Injunctions (4 Ed.), secs. 7, 78, 165, 166. (2) Even though the judgment rendered by the court at law be void for want of jurisdiction equity will not enjoin, but will leave the parties to their remedy at law. 1 High on Injunctions (4 Ed.), sec. 125; Railroad v. Reynolds, 89 Mo. 146; Stockton v. Ransom, 60 Mo. 535; Railroad v. Lowder, 138 Mo. 533; State ex rel. v. Brown, 172 Mo. 381; Railroad v. Hosreth, 144 Mo. 149; Henman v. Westheimer, 110 Mo. App. 194. (3) Injunction will not lie when there is 'an adequate remedy at law. McPike v. Few, 48 Mo. 525; Stockton v. Ransom, 60 Mo. 535'. (4) Courts of equity in exercising their jurisdiction in restraint of an action at law, exercise it, not over the court of law, but upon the parties litigant therein. And a court of equity is. devoid of jurisdiction to grant an injunction against the judge of another court to restrain him from acting in or making orders in a particular cause. Every judge (pro hac vice the court) is supreme and independent in his own sphere, and cannot be restrained in the discharge of his functions by the process of injunction. High on Injunctions (4 Ed.), sec! 46; Pom. Eq. Jur. (3 Ed.), secs. 1360, 1361, 1365; 16 Am. and Eng. Ency. Law 365. (5) The issues presented in the case at bar have been definitely settled by a previous judicial decision (Tie & Timber Co. v. District, 226 Mo. 420); therefore the doctrine of res judicata .applies in this case. Womach v. St. Joseph, 201 Mo. 476; Erwin v. Henry, 5 Mo. 469; State v. Wear, 145 Mo. 189; Winham v. Kline, 77 Mo. App. 36; Brown v. Railroad, 96 Mo. App. 164; Miller v. Bennerker, 46 Mo. 194; Dobbs v. Ins. Co., 72 Mo. 191; Chouteau v. Gibson, 76 Mo. 38, 111 U. S. 200; Murphy v. De-Erance, 101 Mo. 159; Carey v. West, 165 Mo. 455; Caldwell v. White, 77 Mo. 473; Pugh. v. Williamson, 61 Mo. App. 169; Wilson v. Brighton, 50 Mo. 17; Glosner v. Weisberg, 43 Mo. App. 214; Young v. Byrd, 124 Mo. 590; Hamilton v. McLean, 169 Mo. 51. (6) In passing on the plea of res adjudicata, the question is not whether the court decided the point right or wrong; but the question is, did it decide, and is the decision final? Chouteau v. Gibson, 76 Mo. 38, 111 U. S. 200; Murphy v. De France, 101 Mo. 159. (7) The doctrine of res adjudicata applies as well to judgments of courts of last resort as to those of nisi prius courts. If the same subject-matter comes in question in a second action before a court of last resort, it is bound by its own former decision. Chouteau v. Gibson, 76 Mo. 51; Carey v. West, 165 Mo. 455. (8) The county court had exclusive jurisdiction to establish and organize the Naylor Drainage District under the statute; it had jurisdiction therefore of the subject-matter; it also had jurisdiction of the landowners in said district. Art. 4, chap. 122, E. S. 1899; Western T. & T. Oo. v. District, 226 Mo. 420; State ex rel. v. Taylor, 224 Mo. 393. (9) The failure to notify one or more landowners- of the proceedings to establish a ditch, does not' vitiate the proceedings. Carr v. Boone, 108 Ind. 241; Ponndstone v. Baldwin, 145 Ind. 139; Grimes v. Coe, 102 Ind. 406. (10)' The amendment of -the petition filed in the county court was proper; the county court could have changéd the location of the entire ditch, by amending the report of the viewers.. Sec. 8287, B. S. 1899; State ex rel. v. Taylor, 224 Mo. 393; State v. Court, 42 Wash. 491. (11) Injunction will not lie to restrain the letting of a contract for the construction of a ditch, unless the proceedings are void on their face under the statutes. Young v. Sellers, 106 Ind. 101; 6 Cur. Law, p. 1452, sec. 3; Eoss v. Wright, 104 N. W. 506; Calker v. Spraker, 26 111. App. 159; Leonard v. Sparks, 117 Mo. •103. (12) In the absence of fraud, the findings of the county court that the lands will be benefited, or that the drain is necessary, or practical, is not subject to review by appeal, or in subsequent proceedings. Alstad v. Sims, 109 N. W. 6; Eiter v. Drainage Dist. 94 S. W. 711; District v. Connty, 89 Pac. 993; Hernán v. Allen, 156 Mo. 534, 181 U. S. 402; State ex rel. v. Stewart, 74 Wis. 620. (13) The court had jurisdiction of the defendant (appellant) in the original proceedings to establish the ditch; it found as a fact, and judicially determined that the notice under the law was sufficient. Under the law appellant is precluded now from attacking the judgment for lack of notice. Leonard v. Sparks, 117 Mo. 103; McMullin v. State ex rel., 105 Ind. 334; State ex rel. v. County, 135 Mo. 542. (14) The question of the existence of all jurisdictional facts can only be determined by the court exercising it lawful functions under the law; the drainage act left it for the court to find and determine when legal notice had been given; that fact was found and is recited in the judgment of the court; it is conclusive upon appellant in this case. State ex rel. v, County, 135 Mo. 542; Leonard v. Sparks, 117 Mo. 103; State ex rel. v. Taylor, 224 Mo. 393.
   FERRISS, J.

Suit by the Western Tie & Timber Company, as plaintiff, to enjoin the defendants, judges of the county court of Eipley county, from proceeding with the construction of a drain or artificial water course in Eipley county, and also to enjoin the issuing of certain bonds for the construction of the same, and to prevent assessments and levies against the lands of the plaintiff to pay for the construction of such drain, or to meet or retire bonds issued to pay for same.

The original petition was filed April 18, 1910, in the circuit court of' Eipley county. An amended petition was filed August 26, 1910. Such amended petition charges that the plaintiff is an Arkansas' corporation and the owner of a large amount of lands in said county; that at the November term, 1902, of the county court of Eipley county, there was presented a petition praying for the establishment of a drain or artificial watercourse, which petition described the proposed location and route of such drain or ditch, having an approximate length of about nine miles, and prayed for the issuing of bonds to pay for same; that on the 29th day of December, 1902, there was filed in said proceeding an amended petition which abandoned the prayer of the original petition for the issuance of bonds; that on the 6th day of February, 1903, on the pretended authority of said petition, the county court ordered the establishment of a drainage district to be known as Naylor Drainage District No. 1, whoso beginning point and terminus were other and different from those mentioned in the original petition, but following the same general course and of the same length; that said county court, by its order establishing said drainage district, attempted to provide that bonds should be issued and sold to pay for the construction of said drain; and thereafter, on August 1, ' Í904, the county court entered its pretended judgment, including plaintiff’s lands in said drainage district, and assessing benefits against said lands in sums exceeding in the aggregate $10,000. The petition then proceeds as follows:

“And the plaintiff alleges that said pretended judgments of said county court, establishing said drainage district and providing for the construction of said drain, and making the assessments aforesaid, are void for the reason that the petition filed with the county court did not pray for, or authorize, the establishment of the drain which said county court actually attempted to establish as aforesaid; and also because said county court, when it entered said pretended judgments establishing said drainage district, providing for the construction of said drain, and making said assessment, was without jurisdiction of the land-owners whose lands were to be taken for the location of said drain or watercourse, as well as the land-owners whose lands were to be assessed for said improvements.
“And the plaintiff further avers that the terminus of said drain as ordered and directed to be established by said court by said pretended orders and judgments, is without a natural outlet for the water, and that no artificial outlet is provided; that plaintiff’s lands lie near the terminus, and are of a lower level than other lands through which it is proposed to construct said drain, and, instead of being benefited by said drain, will be overflowed and damaged and rendered of less value by its construction; and the plaintiff alleges that no compensation has been made or provided in behalf of the plaintiff for such damage to its lands.
“And plaintiff further avers that other lands included within said drainage district will be greatly-benefited and the value thereof largely enhanced by the construction of said drain, but plaintiff says that plaintiff’s said lands, hereinabove described, although they will be damaged by the construction of said drain and will receive no benefit whatever therefrom, are assessed for benefits under the pretended judgment of August 1, 1904, in the same amount per acre as are assessed against said other lands so included in said drainage district, and which will be benefited and greatly enhanced in value by the construction of said drain.
“The plaintiffs alleges that the defendants now propose to execute said void judgments, to let contracts for the construction of said drain or watercourse, and to cause the same to be constructed, to issue and sell bonds to secure funds to pay for the same, and to make levies and assessments against the lands of the plaintiff to pay for the construction of said drain and to pay and redeem said bonds, and will proceed to do all this unless restrained and enjoined from so doing.
‘ ‘ The plaintiff alleges that under the statutes regulating appeals from the county court in drainage matters it is without remedy by appeal from these pretended orders and judgments of the county court aforesaid, and has no remedy with reference thereto save only by the interposition of a court of equity.
“Wherefore the plaintiff prays that the defendants herein, as judges of the county court aforesaid, and their successors in office, be restrained and enjoined from executing, or attempting to execute, said pretended orders and judgments; from contracting or attempting to contract for the construction of said drain or artificial watercourse; for making, issuing, or disposing of, or attempting to make, issue or dispose of bonds for the construction of the same; and from making or attempting to make, any assessments or levies against the land of the plaintiff to pay for the construction of said drain or watercourse, or to meet or retire bonds issued to pay for the same; and for such other and further relief as to the court may seem meet and proper in the premises.”

The answer of defendants, filed December 14, 1910, sets out at great length, and specifically, all the proceedings in the county court, the circuit court and this court, concerning the establishment of the drainage district, together with a general denial of every allegation in plaintiff’s petition not specifically admitted.

The facts set up in the answer substantially appear in the opinion of the court in the case of Tie & Timber Company v. Drainage Co., 226 Mo. 420. Owing to-their great length, the facts will not be repeated here in detail, but reference can be had to the above mentioned opinion for the detailed facts. It is sufficient to say that the facts set up in defendants’ answer show that proceedings were had, under the statute, in the county court to establish this drainage district. A petition was filed by property-owners, as provided by law; viewers were appointed, whose report recommended a change in the beginning and terminus of the proposed ditch, and also a change in its route, whereupon an amended petition was filed by the property-owners conforming to the route as changed by the viewers. New notice was given as upon an original proceeding. An order was made by the court confirming the report of the viewers; notice by publication given to certain non-resident landowners ; summonses issued to resident landowners, as the law aU that time required to be done. The cause was continued from time to time until the first day of, August, 1904, when the plaintiff, Western Tie & Timber Company, appeared in the county court, and filed exceptions, which were heard and overruled; an appeal was taken by plaintiff to tbe circuit court, where the cause was heard de novo, and decided adversely to plaintiff; then an appeal to this court, resulting in said opinion of this court, where the judgments of the county and circuit courts were affirmed.

The answer further alleges that every issue raised in this case has been litigated and determined adversely to plaintiff in the former case above referred to, and that such former decision is res adjudícala. *The answer further alleges that all of the orders and decisions of the county court were in strict conformity to law; that said county court, in May, 1910, after the affirmance by the Supreme Court of the proceedings in the county court, let the contract for the construction of said drain or ditch in compliance with law; that a contract for the construction of said drain was duly entered into by a construction company, bond given and approved as required by law; that after-wards, on the-day of May, 1910, in pursuance to said final judgment in said case, the county court ordered its treasurer to sell to A. Gr. Edwards & Sons, of the city of St. Louis, the bonds of said drainage district to pay for said improvement.

The reply was a general denial.

On September 21, 1910, the circuit court entered the following order:

“On this 21st day of September, 1910, came the parties hereto, and this cause is heard and submitted to the court, and the court being of opinion that if the plaintiff is entitled to relief herein, it has an adequate remedy at law, and is therefore not entitled to relief in equity; it is, therefore, ordered, considered and adjudged that the petition be dismissed, without prejudice to proceedings at law, and that defendants go hence without day and recover of the plaintiff their costs herein, for which let execution issue.”

In due time this appeal was perfected.

The bill of exceptions shows testimony introduced in this case as follows:

After an objection by the defendants to any testimony upon the ground that the petition did not state facts to constitute a cause of action, and because upon the face of the bill plaintiff was not entitled to equitable relief, the evidence was received subject to the objection.

There was first introduced the original petition,k filed November 10, 1902, in the drainage proceeding, which was in the usual form, stating the commencement, general route and terminus of the proposed ditch, and praying for an issue of bonds; next, the order of the court, made November 11, 1902, appointing viewers and an engineer, which order was in the usual form, and then the notice of the proceeding by publication, which was in due and proper form. Plaintiff then put in evidence the amended petition, report of the viewers and the order of the county court made thereon, all on December 29, 1903, as follows : First, the amended petition, which changes the commencement of the ditch to a point about a mile distant from the one described in the original petition, following the same general route, and ending at a point about a mile distant from the terminus mentioned in the original petition, and also making some other immaterial changes, but omitting any prayer for the issuing of bonds; next, the report of the viewers, who had been appointed under the original petition, and whose report changed the location of the drain as above stated, conforming to the description in the amended petition; then the notice by publication of the pendency of this amended petition, the appointment of viewers and engineer, and description of the route. The case was then continued to the next term of court. Next were introduced copy of the notice and order published as required by law; the report of the viewers referred to, recommending the construction of the drain along the route described in the amended petition, and reporting that the proposed improvement as so located would be conducive to the public health and welfare, that the route was practical and the proposed outlet sufficient. Then was put in evidence the order of the county court at the February term, 1903, approving said report, and directing the viewers and engineer to make a final survey, location, estimate and apportionment of benefits, which order Was in the usual form. Next followed the final report of the viewers, giving full details of the construction, also of the assessment of benefits. Then followed the order of the clerk in vacation, setting the final hearing of the final report for February 1, 1904. This hearing was continued to March 21, 1904, on a finding that landowners had not been notified. Plaintiff next offered in evidence the affidavit of one D. B. Young, filed March 2,1904, as a basis for the order of publication. This was objected to by defendants on the ground that plaintiff, having entered its appearance in the county court, could raise no question as to whether proper service had been had on other parties. The affidavit stated that the affiant was interested in the drainage of the lands in said Naylor Drainage District No. 1; that “he is creditably informed, and verily believes” that several parties named in the affidavit, including the plaintiff, “who are owners of lots or parcels of land or real estate affected by such proposed improvement are without the county of Ripley in which said work is located, and have no agent or tenant resident in said county on whom proper service of a notice of the filing of the petition and report of the viewers in the premises could be had.” Then-followed the order of publication to non-resident landowners, based upon the foregoing affidavit, which order was in the usual and proper form. Plaintiff next offered in evidence notice issued to resident landowners. Counsel for the plaintiff made the following statement: “I suppose it will be admitted that the files which we have here constitute all the notices that the clerk has.” Mr. Land, counsel for defendants, made the following admission: “It is admitted that the county clerk will testify that the notices to landowners which are about to be offered by the plaintiff are all of the notices to landowners in the proceeding that he has in his custody, or that he knows anything about.” Objection was made by the defendants to the offer of the returns on the ground that the notices and returns were immaterial, as none of the parties were making any objection, nor ever made any objection to the ditch, and that if the county court did not acquire jurisdiction over the parties mentioned in the summonses, this fact would not affect the jurisdiction of the county court over the plaintiff. The notice to the landowners was in the usual form, summoning them to appear before the county court on the 21st day of March, 1904, to show cause why the report of the viewers should not be approved. It was shown that in a number of cases the notices contained no return, and nothing to show any service or attempted service, and that others of the notices showed irregular service, as follows: One of those commanded the sheriff to summon J. A. "Woodward, guardian of “Harris heirs,” and was returned served by the sheriff upon Woodward only. Another issue directing service upon St. Louis, Memphis & Southeastern Railway Company, and the only return of service was “by reading it to the within named party.” Another, for the St. Louis Iron Mountain & Southern Railway Company, was returned served by “delivering copy to C. Dachwald to the within named party.” The summons for Wm. Lyrd was served “by sending copy to within named party.” That for B. W. Stay ton was executed “by leaving a copy of the same at the usual place of abode of the within named party.” On the summons to one S. F. Hess the sheriff wrote, “Dead and non-resident,” and returned it to the clerk. On the summons for Emmett Bounds the sheriff wrote “non-resident,” and returned it. On the summons for O. M. Byrd, O. V. Byrd, Pearl Byrd, and O. N. Cash, guardian, the sheriff made no return.

There was an order by the county court on March 21, 1904, continuing the matter to May 2, 1904, on a finding that non-resident landowners had not been notified, but ordering no further process. Several subsequent orders for continuances were offered in evidence, in none of which were there any directions for further service. The last of these continuances was to August 1, 1904. On that day the county court made an order reciting that all landowners had been duly notified, and entered a final judgment directing the construction of the drain and the assessment of the lands benefited as reported by the viewers, and overruled the exceptions of the Western Tie & Timber Company, which exceptions were not put in evidence, but which are stated in the answer of the defendants. Plaintiff then put in evidence the order of the county court, entered at the February term, 1910, directing the engineer to let the contract for the construction of the drain, after advertising by the clerk in the manner pointed out in the statute, and also the following order:

“It is by the court on this day further ordered, that upon the sale, and the letting'of the contract for the construction of the ditch and improvement, as aforesaid that bonds in the denomination of five hundred dollars, or multiples thereof, be issued against said drainage district and sold, or paid to the contractor or contractors in lieu of cash, in a sum not to exceed twenty-five per centum above the estimated cost of said ditch and improvement, including all expenses of location and litigation. Said bonds to become due and mature annually after two years from date, and to bear interest not to exceed the rate of six per cent per annum, and payable semi-annually, at the county treasurer’s office of Ripley county, Missouri. Said bonds shall mature and fall due in eighteen equal amounts, as near as the same may be practical, commencing ten years from the date of issue, so that none of said bonds shall run or draw interest for a term not to exceed twenty years, as provided by law. Said bonds shall be sold at public auction to the highest bidder by the county treasurer of Ripley county, without expense to the said county, and notice of the sale of said bonds shall be given by publication in some newspaper printed and published in Doniphan, Ripley county, Missouri,- no bonds shall be sold for less than par value, and said bonds shall fully set out and specify on their face the purposes for which they are issued.”

Plaintiff then offered oral testimony tending to prove that the outlet of the drain was insufficient, and that the construction of the drain as proposed would result in bringing additional water on the lands of •plaintiff.

Defendants offered in evidence the following:

1. The record of publication of notice to landowners' of the original pétition, and appointment of viewers.

2. The record of publication on the amended petition, and the viewers’ report, above referred to.

3. The preliminary report of the viewers, above referred to.

4. The order approving this report at the February term, 1903, above abstracted in plaintiff’s case.

5. The affidavit and qualification of the viewers and engineer, as required by statute.

6. The final report of the viewers and engineer, •above abstracted in plaintiff’s case.

7. The various orders of continuances of the matter in the county court, and the final order of August, 1904.

8. The orders for letting contract and sale of bonds, above set forth, with the publication thereunder, giving notice of the letting, as required by the statute.

9. The report of the engineer, showing the letting of the contract, of date May 3, 1910; also the contract itself, and the bond of the contractor for doing the work, and the approval of the report, contract and bond by the county court, under date May 3, 1910.

10. A further order of the county court for the sale of the bonds, made on the 6th day of May, 1910.

11. A notice of the sale of bonds for the construction of the drain.

12. A subsequent order of the county court approving an offer for the bonds under this sale.

A comparison of the names of the parties against whom summonses were issued in the drainage proceeding with the plat on file showing the owners of the lands traversed by the proposed ditch, shows that the summonses offered in evidence and returned as not served were directed to two property-owners whose land lay in the line of the proposed ditch, and would be taken for the construction of the same; also that two or three of the parties who owned land which should be taken for the ditch were attempted to be brought into court by the order of publication.

It is contended by the plaintiff that the order of publication was invalid because based on an affidavit which plaintiff claims did not comply with the law, in that the affidavit states that the parties mentioned are without the county, but does not state that their residence is without the county. Plaintiff contends that the county court acquired no jurisdiction of the drainage proceedings because of the failure to get service upon certain of the landowners, and particularly because of the failure to get service upon all of the persons who owned land which would actually be taken in the construction of the ditch. Plaintiff further contends that although in court itself, it had a right to object to the jurisdiction if other parties whose land was taken for the ditch were not in court also, upon the theory that the ditch being continuous it could not be constructed throughout unless the court had jurisdiction of all the parties whose lands were taken for such construction.

The record does not show whether or not all of the parties in interest appeared in court. There is no evidence upon this subject excepting the summonses and returns which were read in evidence, and the affidavit and notice of publication in the record.

The exceptions filed by plaintiff in the drainage proceedings and the subsequent steps taken by way of appeal were not shown in evidence although set up in the answer. These, however, fully appear in the case of Tie & Timber Co. v. Drainage Co., 226 Mo. 420. There is no question, but that the case referred to involves the transactions which are the basis of this suit, and which, we think, may properly be considered in the disposition of this case.

I. The plaintiff in this case is attempting to re-litigate in a court of equity questions finally adjudged by the county court, and is also attempting to enjoin further proceedings by the county court upon the ground that the orders and judgments hertofore made and rendered by the county court are void for want of jurisdiction because all the parties in interest were not brought into court.

Plaintiff had its day in court, and contested the proceedings upon the merits, and suffered defeat. We think it clear that so far as the merits of the case are concerned they cannot be litigated anew, and that plaintiff, having had its day in court, is bound by the decision of the county court on all questions which were raised or could properly be raised in that tribunal. The matter is res judicata.

But plaintiff is now seeking to enjoin proceedings under a judgment which it claims is void because of want of jurisdiction on account of failure to properly notify property owners. Whether this plaintiff can object that other property-owners were not duly served we need not decide because, in our opinion, the record of the county court precludes such objection on the part of the plaintiff. The county court, by its order entered August 1, 1904, found that all of the landowners had been duly notified. Section 8287, Revised Statutes 1899, authorizes and directs the county co'urt to find whether due notice has been given, and, if the court shall so find, to proceed to examine the report of the viewers, and confirm same if approved.

In the case of Lingo v. Burford, 112 Mo. 149, the question arose whether a recital of the county court record “that due notice had been given according to law” was sufficient in a collateral proceeding to show jurisdiction in the court, so far as it was essential to show notice. Gantt, J., speaking for the court, and citing several authorities, says: “That the county court was only authorized to entertain the proceeding to condemn plaintiff’s land for the road, upon notice given as required by the statute, section 7797, is not to be questioned, but it is a well-settled principle that where the jurisdiction of an inferior court depends upon a fact which said court is required to ascertain and settle by its decision, its decision is conclusive as against a collateral attack. . . . The county court had original exclusive jurisdiction to hear and determine upon a proper petition and due notice, whether a new public road should be established over a route designated in the petition. The petition stated every fact necessary to give the court jurisdiction of the subject-matter. Twenty days’ notice of this application was required. The statute required ‘proof of notice having been given as required.’ The county court was the tribunal authorized to hear and determine the sufficiency of the proof. It was not required by law to spread on its record the evidence by which it ascertained that notice had been given. It did find and spread on its record that ‘notice had been given according to law.’ This was a fact in pais to be established by evidence, and its power to proceed further in the case depended upon the giving or failure to give this notice. It judicially ascertained it was given, and we think that it is conclusive as against a collateral attack.”

' This opinion has been cited with approval in numerous decisions rendered by this court since that time. It is approved in terms in State ex rel. v. Wilson, 216 Mo. 215. In State ex rel. v. Taylor, 224 Mo. l. c. 461, Woodson, J., discussed this subject, and cited with the approval the holding of the Supreme Court of Indiana to the effect that whether there was or was not sufficient notice was a jurisdictional question to be determined by the commissioners, and that their finding could not be collaterally attacked unless the. record affirmatively showed that no notice whatever was .given. A valuable contribution to the law upon this subject is found in the opinion of Goode, J., in the case of Hadley v. Bernero, 103 Mo. App. 549, where, among other things, the court says: “When a tribunal is clothed with jurisdiction of the class of actions to which a controversy belongs, and its right to adjudicate the controversy depends on certain facts which it must ascertain, and it makes an express finding on them, that decision becomes as much res judicata, as the decision of any other issue, and the parties are precluded from reopening it afterwards, except by appeal or writ of error.”

In this case the ‘ county court found as a fact that due notice was given, and its record so shows. We must presume that the record made by that court is a true record. It was stated at the trial of this case, and not disputed, that no other property-owner interested objected to the drainage proceedings. Whether or not they entered their appearance does not appear, nor does it appear whether they were notified other than as appears by the summonses and returns offered in evidence in this case. For aught that appears in this record all other property owners interested may have entered their appearance or may have been notified; but whether they were or. not, we are constrained to.hold, in accordance with an unbroken line of decisions in this State, that the recital in the record of the county court that all parties' were duly notified, is conclusive in this collateral proceeding.

So far as the objections of plaintiff to the drainage proceedings, based upon the merits, are concerned, as stated above, the plaintiff had its day in court, and is bound by the decision of the county court on this question. An appeal was had to the circuit court, and from that court to this court, without avail. It was held by this court that all the proceedings in the circuit court were cor am non judice. We held in effect that plaintiff had no right of appeal from the county court, save and except upon two propositions, neither of which are involved in that appeal.

II. Plaintiff also contends that the county court had no authority to order an issue of bonds to pay for the construction of the ditch; that when the property owners filed their amended petition they thereby abandoned their original petition, and all subsequent proceedings were upon the amended petition, as if no original petition had been filed;. that .this amended petition did not ask for an issue of bonds.

On this question the record before us is not in satisfactory shape. Whether or not the bonds were actually issued we are unable to determine from what appears in the record. The amended petition in this case was filed August 26, 1910. It appears" from the record that at the February term, 1910, the county court directed the engineer to let the contract for the construction of the drain, and also ordered an issue of bonds to pay for the work, and further ordered said bonds to be sold at public auction. The record further shows that on May 3, 1910, the contract for the construction of the ditch was let, and the bond of the contractor doing the work approved. On May 6, 1910, the court ma'de an order directing the sale of the bonds, and a subsequent order of the court approved an offer for the bonds under this sale. The order is not set out in the abstract, but we will assume that it supports the allegations in the answer of the defendants that said county court, through its treasurer, sold to A. Gr. Edwards & Sons, of St. Louis, the bonds of such drainage district for the sum of-dollars to pay for said improvement. Whether or not the ditch has been dug, or the bonds actually delivered, we do not know; but inasmuch as the contract was let on May 30, 1910, and the bonds were sold in May, 1910, and the amended petition in this case was filed in August, 1910, we must assume, in the absence of any information to the contrary, that the work proceeded under the contract, that the ditch was dug, and that the bonds were sold and delivered. There was no preliminary restraining order asked for or granted in this case to prevent the prosecution of the work and the sale of the bonds. It would seem that after the decision of this court was handed down (March 15,1910) in the case of Tie & Timber Co. v. Drainage Co., supra, the county court assumed that the way was clear for the prosecution of the work, and proceeded accordingly. Assuming then, as we think we must, from what appears in the record, that the bonds have been sold and delivered, we are precluded from considering in this proceeding the question whether the issue of bonds was valid.

It follows from the foregoing that the judgment must be affirmed, and it is so ordered.

Kenmsh, P. J., concurs, Brown, J., in result.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    JOHN H. DEWEIN et al., Appellants, v. JOHN HOOSS et al.
    Division Two,
    July 15, 1911.
    1. WILLS: Power to Sell: Power to Mortgage. As a general rule, a power to sell given by a will does not authorize the person to whom the power is given to borrow money and mortgage the property devised; but a provision in the will “giving and granting her full nower and absolute authority to dispose of all_ or so much as she desires and as may be necessary to provide for her and the children during her life,” and “the foregoing provision is to be so construed as to give her absolute title to and in the whole of my estate, real, personal and mixed, -to enable her to dispose of the same at her option, and that she may make a good title to the purchasers,” did confer on her power to bonrow money and execute a valid deed of trust on the property to secure the same, for the purpose of saving the property from sale under an existing mortgage, and to save the property as a home for herself and children. And the unlimited power to mortgage given by those words, is not invalidated or restricted by other words declaring that “at her death it is my will and wish that the remainder or residue if any there be, be divided in equal shares among all my children.”

      2. -: -: -: Mismanagement. An effort, after a delay for thirty years, to show that the devisee with power to mortgage did not sell the other property 'af_its full market value, and that fiTshe had' done so she could have paid off the debt which she kept alive by subsequent renewals of the mortgage on the property remaining, and that she otherwise mismanaged the estate, is to_o_stale; besides, there is an ample remedy provided by statute for an executrix’s mismanagement of an estate.
    3. DEED OF TRUST: Barred by Limitations. A deed of trust made in 1879, with credits on. the note at such intervals as kept the note from being at any time barred by limitations, was not barred by the Statute of Limitations at the time of its foreclosure in 1906. And whether the payments were made by the maker of the note, or by some one else at her request, for instance, a son in whose behalf the original indebtedness was incurred, they were valid, and prevented the running of the statute.
    4. PAYMENTS MADE BY OTHER: Competency to Testify. *A witness who made payments on a note at the request of the debtor is competent to testify, after the debtor is dead, that he made such payments and credits, and at the debtor’s request.

      Appeal from Perry Circuit Court. — Son. Samuel Davis, Special Judge.
    Affirmed. -

      Samuel Bond and Edward Roblo for appellants.
    (1) Under the will of Henry Hooss, deceased, Barbara Hooss was given a life estate. A power of sale or disposal added to a devise of a life estate, does not enlarge the estate devised into a fee in the first taker. Rnbey v. Barnett, 12 Mo. 7; Redmond v. Barger, 118 Mo. 568; McMillan v. Farrow, 141 Mo. 63; Lewis v. Pitman, 101 Mo. 281; Grace v. Perry, 197 Mo. 550; Tisdale v. Prather, 210 Mo. 409; Evans v. Folk, 135 -Mo. 403; Steiff v. Seibert, 128 la. 746; Page on Wills, sec. 576; Tiedeman Real Property, sec. 564. (2) Under the 2d and 4th clauses of the will of Henry Hooss, deceased, Barbara Hooss was • given power. and authority to sell and dispose of real estate for the payment of debts, and for the support and maintenance-of herself and children during her life. And she was not authorized by either of these provisions to mortgage or encumber the property for any purpose. Price v. Courtney, 87 Mo. 387; Price v. Estill, 87 Mo. 378; Wood v. Kice, 103 Mo. 329; Garland v. Smith, 164 Mo. 15; Dougherty v. Dougherty, 204 Mo. 228; Page on Wills, sec. 691; Trust Co. v. Bank, 14 R. I. 625; Sires v. Sires, 43 S. C. 266; Green v. Clairborne, 83 Va. 386; Quisenberry v. Land Co., 92 Tex. 247; Bloomer v. Waldron, 3 Hill (N. Y.), 361; Hoyt v. Jacques, 129 Mass. 286; Stokes v. Payne, 58 Mass. 614; Constant v. Servoss, 3 Barb. 128; Miller v. Mook, 5 Ky. L. R. 327; Hubbard v. Congregation, 34 Iowa, 31; Land & Imp. Co. v. Sanntrock, 60 N. J. Eq. 471; Wilson v. Ins. Co., 60 Md. 150; Griffin v. Griffin, 141 111. 373. (3) The power to sell to pay debts, and the power to dispose of, for the purpose of support of the life tenant and children, are both limited powers of disposal, and not general powers for the sole benefit of the life tenant, and should be strictly construed. Garland v. Smith, 164 Mo. 15; Wood v.-Kice, 103 Mo. 335; Stocker v. Foster, 60 N. E. (Mass.) 407; Scheidt v. Crecelius, 94 Mo. 322; Clark v. Clark, 50 N. E. 101; Griffin v. Griffin, 31 N. E. 131; 18 Am. and Eng. Ency. (1 Ed.), 886; 2 Bouv..Inst., 1922; 2 Washburne Real Prop., 307; Fleming v. Mills, 55 N. E. 373; Woods v. Robertson, 15 N. E. 457; In re Proctor, 63 N. W. 670; Ford v. Ticknor, 47 N. E. 877; Constant v. Servoss, 3 Barb. 128; Wilson v. Ins. Co., 60 Md. 150. (4) A mortgage deed of trust in Missouri, is not a sale, or disposal or an alienation of the land; it is not even a conditional sale; it is merely a security for a debt, creating so far as the mortgagor has the power, a lien on the land. “It is wanting, in all the essential elements of an alienation.” Dickerson v. Bridges, 147 Mo. 243; Busnell v. Ins. Co., 110 Mo. App. 229; Logan v. Railroad, 43 Mo. App. 75; Fischer v. Johnson, 51 Mo. App. 162; Pease v. Iron Co., 49 Mo. 124; 3 Pom. Eq., sec. 1188. (5) A power of sale cannot be delegated. Inasmuch as a mortgage or deed of trust is not a sale or conveyance of title, but only a security for a debt or lien therefor, and title is not divested until a foreclosure sale; the sale made by Henry G. Kiesler, trustee, after the death of the life tenant, was in effect an attempted execution oían invalid delegated power and void. 2 Perry on Trusts (2 Ed.), secs. 768, 779'. (6) The note and deed of trust given by Barbara Hooss to John Hooss and Joseph Huber, dated December 22, 1879, in which Henry G. Kiesler was trustee, was barred by the Statute of Limitations.

      John V. Noell for respondents.
    (1) WTiere a testator charges his real estate with the payment of his debts, and confers a power of sale for that purpose, and such purpose can as well, or better, be subserved by a mortgage, then the power to sell includes the power to mortgage, unless it is evident from the provisions of the will that it was the intention of the testator to sell and convert his property into money out and out. Not only does our statute (R. S. 1900, sec. 2908) charge one’s real and personal estate with the payments of his debts, but Henry Hooss expressly charges his real and personal estate with the payment of his debts, and gives his widow unlimited discretion in the sale of his property “for the purpose of raising the necessary means” to pay off his indebtedness and authorizes her to do so “without orders of the court,” and without being accountable to any court for her conduct in the matter. It is submitted by respondents that Barbara Hooss had the power to mortgage lot 64 for the payment of her husband’s debts, under the second clause of ‘the will. 2 Washb. Real Prop. (4 Ed.), p. 655; Mills v. Banks, 3 P. Wmc. 9; Ball v. Harris, 4 Mylne & Craig, 267; Kent v. Morrison, 153 Mass. 139; Zane v. Kennedy, 73 Pa. St. 192; Loebenthal v. Raleigh, 36 N. J. 169; Fisher on Mortgages, sec. 435; Sngden on Powers (3 Am. Ed.), P'. 552; 2 Perry on Trusts, sec. 768; Waterman v. Baldwin, 68 Iowa, 255; Steifel v. Clark, 68 Tenn. 470; Lancaster v. Dolan, 1 Rawle (Penn.), 231; Corporation v. Wallace, 3 Rawle, 109; Gordon v. Preston, 1 Watts, 386; Duval’s Appeal, 2 Wright, 118; Ins. Co. v. Auction, 6 Wright, 263; Hill on Trustees, p. 475; Hall v. Preble, 68 Me. 100; Richardson v. Richardson, 80 Me. 585; Page v. Cooper, 16 Bear. •396; Leggett v. Firth, 53 Hun. (N. T.) 152; Stroughill v. Austey, 1 DeG. M. & G. 635. (2) But even if the court should believe that Barbara Hooss acquired only a life estate under the fourth clause of the will, yet it is plain from the provisions of the will that she was also given the unrestricted power to dispose of the fee at her option, without being accountable to any court for her conduct in the matter, and without being subject to tbe dictation of anybody. Her power was one coupled with an' interest, and not a naked power to be used solely for the benefit of others, nor a power of sale for reinvestment, as was the case in nearly all of the decisions cited by appellants’ counsel in their brief. In the fourth clause of the will of Henry Hooss the word “sell” is not used; but the word “dispose” occurs twice therein. While naked powers aré generally construed strictly by the courts, the rule is different as to powers coupled with an interest. The rule in the latter class of cases is to construe the power liberally, so as to carry out and give effect to the cardinal intention of the testator; and in doing this, courts pay more attention to the spirit than to the letter of the will, or other instrument. Qui haeret in litera, haeret in cortice. Grace v. Perry, 197 Mo. 550; Long v. Timms, 107 Mo. 519; Drake v. Crane, 127 Mo. 85; Wisker v. Rische, 167 Mo. 528; Norcum v. D’Oench, 17 Mo. 98; Underwood v. Cave, 176 Mo. 1; Harbison v. James, 90 Mo. 431; Gannon v. Pank, 200 Mo. 75; Burford v. Aldridge, 165 Mo. 419; Waterman v. Baldwin, 68 Iowa, 255; Plall v. Preble, 68 Me. 100; Richardson v. Richardson, 80 Me. 585; Perry on Trusts (5 Ed.), sec. 768; R. S. 1899, sec. 4650. (3) The power to “dispose of” property in which the donee has a life estate, includes the power to mortgage. Grace v. Perry, 197 Mo. 550; Gannon v. Pank, 200 Mo. 75; Waterman v. Baldwin, 68 Iowa, 255; Steifel v. Clark, 9 Baxt. • (Tenn.) 466; Watson v. James, 15 La. Ann. 386; 22 Thomp. Ency. Law, 1156, par.3. (4) In construing the language of a will, courts must look to the circumstances surrounding the testator at the time of its execution, and all of the provisions of the will should be read together. Underwood v. Cave, 176 Mo. 1; Grace v. Perry, 197 Mo. 559; Long v. Timms, 107 Mo. 519; McMillan v. Fanow, 141 Mo. 55; Shumate v. Bailey, 110 Mo. 415; Noe v. Kern, 93 Mo. 373; Hall v. Stephens, 65 Mo. 677; Clotilde v. Lutz, 157 Mo. 439; Roberds v. Brown, 167 Mo. 447; Small v. Field, 102 Mo. 121.
   BROWN, J.

Action for partition of three town lots in the city of Perryville, Missouri. From a judgment of the circuit court denying partition of one of ' said lots, plaintiffs appeal. •

One Henry Hooss died in 1868, seized of real estate estimated to be worth six to eight thousand dollars, and owing debts aggregating about four thousand dollars. He was survived by his wife, Barbara Hooss, who died in 1905.' Mr. Hooss was also survived by eight children. One of them, Magdalena Dewein, a daughter, died in 1901, and the plaintiffs herein are her children. Defendants are the other seven children of said Henry Hooss, deceased.

The main issue in this action hangs upon the power or lack of power on the part of Barbara Hooss, devisee and executrix under the will of Henry Hooss, to encumber by deed of trust one of the town lots owned by deceased in Perryville.

The will is as follows:

“First, It is my will and desire that all of my legal debts be paid by my hereinafter named executrix, without having them classed and allowed in court, unless said executrix should not be satisfied of the correctness of such demands. In such case she may require the same to be proven.
“Secondly, I hereby authorize and empower my said executrix to sell such property as she may deem best, either personal property or real estate, for the purpose of raising the necessary means to pay off my indebtedness, and to sell the same either priváte or public, on such terms and at such time as she may select, without orders of court, and she shall not be required to give bond as such executrix or to render accounts to the court having jurisdiction unless she shall so desire it.
“Third, I hereby will and bequeath unto each of my children, namely, Thomas, Magdalena, Barbara, John, Marie Louisa, Henry William, Louis Phillip and Chas. A. Hooss, each the sum of $1 to be paid to them by my hereinafter named executrix as soon after my decease as the means thereto can be provided for, and to those who shall be under age as soon as they shall arrive at the proper age.
“Fourth, I hereby will and bequeath the rest and residue of my estate, both real and personal and mixed, unto my beloved wife Barbara Hooss, and to her use and benefit during her natural life, giving and granting her full power and absolute authority to dispose of all or so much as she desires and as may be necessary to provide for her and the children during her life, and at her death it is my will and wish that the remainder or residue, if any there be, be divided in equal shares among all my children, share and share alike. The foregoing provision is to be so construed as to give her absolute title to and in the whole of my estate, real, personal and mixed, to enable her to dispose of the same at her option, and that she may make a good title to the purchaser or purchasers.
“Lastly, I hereby appoint my said beloved wife Barbara a sole executrix of this, my last will and testament, hereby revoking all former wall or wills by me made.”

Within a few years after the death of Henry Hooss his widow, who was named as the sole executrix in the will, sold all the real estate of testator except the three town lots, which plaintiffs now ask to partition ; and from the proceeds of said sales and the sale of some personal property, she paid all the debts of her husband except $1434 due one Maurus Biehle. To this man Biehle she executed a deed of trust on lot No. 64, together with a hotel situated thereon, in the city of Perryville. At the time of the testator’s death, this hotel was occupied by himself and wife, the executrix herein, as their home. Some of the witnesses testified that this hotel lot was not worth more than $2000 at the date of testator’s death in 1868, while others thought .it was worth $5000 at that date. All of such evidence was necessarily unsatisfactory, on account of the great lapse of time intervening between the date of the values they undertook to fix and the date of the trial.

When the deed of trust to Biehle became due, the executrix borrowed money from another party, and gave another deed of trust on the hotel lot to secure same; and later, to-wit, on December 22, 1879, she borrowed from her son John Hooss and her son-in-law, John Huber, $1852.32 with which to redeem the said lot from the last mentioned deed of trust; and she thereupon executed a new deed of trust to her said son and son-in-law to secure the last named amount. After executing the deed of trust to her son and son-in-law, she failed to pay all the interest on the indebtedness'; so that in 1905, at the time of her death, the interest had accumulated on the deed of trust to an amount probably equalling the value of the lot, then estimated to be worth from six to ten thousand dollars. Shortly after her death, the last named deed of trust was foreclosed under a power of sale contained therein and the lot purchased at such foreclosure sale by her ’son and daughter, John Hooss and Barbara Huber, defendants herein, who were then the owners of the debt recited in said deed.

It is not disputed that the debt which these deeds of trust were given to secure was a bona-fide obligation of the testator, and that same was duly allowed and classified against his estate; but said debt grew out of the testator signing some notes as security for his son, Thomas Hooss, one of the defendants herein, which notes said Thomas Hooss failed to pay. The trial court found that the defendants John Hooss and Barbara Huber obtained the title to the hotel lot by purchase at the above mentioned foreclosure sale, and excluded it from the partition.

None of the defendants except John Hooss and Barbara Huber set up any claim to the hotel lot.

The plaintiffs contend (1) that the will of Henry Hooss did not invest his executrix, Barbara Hooss, with power to mortgage or encumber his lands by deed of trust; and that, therefore, all of the deeds of trust executed by her were void; and (2) that if she did possess power to thus encumber the lands of testator, the last named deed of trust was barred by the Statute of Limitations before it was foreclosed, and that, consequently, no title passed to defendants John Hooss and Barbara Huber by said sale.

Two town lots of testator in Perryville were never mortgaged nor sold by the executrix, and the right of plaintiffs to have those lots partitioned is not controverted.

In an apparent effort to show that the executrix mismanaged the estate, and that she could and ought to have paid off the deed of trust from the rent of the hotel lot or from a sale of. other property, plaintiffs have introduced many witnesses and numerous documents showing all of the official acts of said executrix; but being convinced that while the judgment of the executrix, regarding some of her official acts may have been faulty, the record does not disclose anything which the plaintiffs have a right to call in question at this late date. Therefore, we will not encumber this opinion with a detailed statement of all the evidence introduced by defendants. Such additional items as will be necessary to a full understanding of the case will be given in our opinion.

OPINION.

The first issue which demands our consideration is: Did the will of Henry Hooss invest his widow and executrix, Barbara, with power to encumber the hotel lot by deed of trust to secure a valid indebtedness of testator? As a general rule, a power of sale in a will does not authorize the party to whom such power is granted to borrow-money and encumber the devised property, for the obvious reason that more money can usually be obtained from a sale than by the mere giving of a mortgage, and the execution of a mortgage may and often does result in the ultimate sacrifice of the encumbered property. The case of Dougherty v. Dougherty, 204 Mo. 228, 1. c. 234, and authorities there cited, announce this rule of law quite fully.

If Henry Hooss had invested no power of sale in his widow except such as was given her by the second clause of his will, then we would unhesitatingly say that she had no authority to encumber the lands devised to her; but in paragraph 4 of the will, we find the testator grants to her “full power and absolute authority”-to dispose of his property, with the added direction that this clause shall be “so construed as to give her absolute title to and in the whole of my es-state, real, personal and mixed, to enable her to dispose of the same at her option, and that she may make a good title to the purchaser or purchasers.”

With such a clearly expressed intention of the .testator Hooss, to allow his widow to treat his lands as her absolute property, with unrestricted power of disposal “at her option,” to hold that the widow could not mortgage or encumber the property would be to totally disregard the testator’s wishes.

She had already sold all of the real estate which her husband left her, except three town lots. The hotel lot was the only property equipped with a house that would furnish her shelter, and it was but natural that she should cling to that as long as possible; for the use or rental of that lot was the only means in sight out of which she could hope to secure permanent ' support. It is true there were two other lots undisposed of; but they were not improved in such a manner as to possess a permanent rental value; and there is no satisfactory evidence that she could have sold them at a price that would have enabled her to pay the remainder of her husband’s debts.

By encumbering the hotel lot, the widow sueceeded in preventing Biehle, who had probated his claim against the estate, from bringing the town lots to a forced sale; and after a few years she induced her son and son-in-law to carry this indebtedness and allow her to obtain her living from the rent of the hotel. As she did not pay all the interest on the indebtedness, this arrangement ultimately resulted in plaintiffs losing their prospective interest in the hotel lot through foreclosure. However, we must not lose sight of the fact that Henry Hooss has informed us by his will that his widow was the chief object of his bounty; and it was his foremost wish that she should be cared for after he should pass away. His children were all grown, or nearly" so. Accordingly, he only bequeathed to his children one dollar each, and such residue of his estate, “if any there be,” as might .not be consumed by his widow for her support during her life. It is true the widow could have sold the hotel in 1868, or soon thereafter, and out of the proceeds, paid the remainder of her husband’s- debts, which then did not exceed $1500; and the remainder she could have had the undoubted right to devote to the support of herself. The logic of appellants’ argument is that she ought to have done that instead of making what they are pleased to call an illegal deed of trust, and' thereby indefinitely postponing the payment of the remainder of her husband’s debts. The witnesses placed the market value of the-hotel lot in 1868 at prices ranging from $2000 to $5000. We think the preponderance of the evidence is that it was not in 1868 worth more than $4000. Had she sold the lot at that price, she would, after paying the debts of testator, have had about $2500 left to support herself during the remaining thirty-seven years of her life— or less than $75 per year. But by encumbering the property as she did to her son and son-in-law, who did not collect all of the interest, she seems to have received an average of $30 per month, which in the thirty-seven years, yielded her $13,320; and if we subtract from this the sum of $3000 for insurance, repairs and taxes on the hotel lot and the other two lots, we still have $10,320 — or more than four times what she would have received had she sold the property instead of encumbering it. These rentals enabled her to live in such degree of comfort as she desired; and we see no reason in the demand of the plaintiffs that she should have impoverished herself by using the rents derived from the hotel lot to pay off the indebtedness or the interest thereon; and thus have saved the property for plaintiffs and her other children.

Under the will, she was only required to preserve for them such property as she might not find it neccessary to use or dispose of for her own support. It is true the widow, presumably from the rent of the hotel, saved and had on hand about $1200 at the time of her death in 1905; but the saving of that little fund to meet the prospective sickness, medical bills and exigencies of old age did not indicate any evil intent on her part; particularly since she did not, as far as this' record shows, attempt to pass this accumulated ■fund in derogation of the rights of the plaintiffs.

At the trial, an effort was made by plaintiffs to prove that the executrix did not obtain the full market value of such lands of testator as she did sell. This evidence is insufficient to show that she made any collusive sales, or that she did not act in good faith in making the sales. We think this claim, like the alleged misappropriation of the rents of the hotel lot, is too stale to receive consideration in' this suit. All of the parties to this action appear to have resided in Perryville, and all sales made by tbe executrix as well as her failure to use tbe rents of tbe hotel to pay tbe interest and principal of tbe deeds of trust, were known to tbe plaintiffs; or could have been known to them by tbe exercise on tbeir part of reasonable diligence. If tbe widow mismanaged tbe estate, or failed to properly discharge ber duties as executrix, plain-stiffs possessed an ample remedy by timely application to tbe probate court to have ber letters testamentary revoked, under tbe provisions of section 43, Revised Statutes 1879. By remaining silent more than thirty years, they are estopped from assailing tbe - good faith of the executrix, even bad tbe facts warranted them in doing so — which we think they did not.

Going back to tbe law of tbe case, we will say that tbe views herein expressed are sustained by tbe leading case of Grace v. Perry, 197 Mo. 550. In that case tbe will construed was as follows: “All the residue of my estate, personal and mixed, I give and devise equally to my children, James S. Dougherty and Augusta Lucy Dougherty, during tbeir natural lives, respectfully, with remainder to tbeir heirs or bis or ber heirs of tbeir body, but with full power and authority to each of my said children after tbeir majority to dispose of tbe absolute estate in fee simple title, and on tbe death of either tbe survivor to inherit. But should both my children die without issue of tbeir body, then and in that event my grandnephew, Charles F. Loker, shall inherit all my property.” ■

Under the title and power of sale conferred by this will, James S. Dougherty, one of the devisees, executed a deed of trust upon bis one-half of tbe land so devised, which deed of trust was duly foreclosed. In bolding that tbe deed of trust and tbe foreclosure thereunder passed title to tbe land, Brace, J., speaking for this court In Banc, said:

“For tbe defendant it is contended that . . . tbe power to dispose of tbe fee to tbeir respective shares given to the testator’s children must be rejected because repugnant to the disposition of the fee by the testator himself to the heirs of the first taker, and in the case of the failure of such heirs to the grandnephew of the testator. This contention cannot, be maintained. It must be remembered that the devise is express for life with power to dispose of the fee, and it is a well settled principle of law that a power of disposition added to a life estate is not repugnant to the life estate or to the remainder over. If not exercised it leaves both estates unaffected by it. If exercised, it defeats the remainder in the property disposed of; the remainder being subject to such defeat, as in this case. ...
“It is next contended that although it be held that James S. Dougherty had power to dispose of the fee simple title to the real estate in question, he had not power to dispose of it by mortgage — that the power of disposal created by the words ‘with full power and authority to dispose of the absolute estate in fee simple’ should be construed as a power to sell and that a power to sell does not include a power to mortgage. It may be conceded that as a general rule the power to sell does not include a power to mortgage and that the execution of a power by means of a mortgage is a disposition in favor of the donee of the power, and it may be further conceded that if it appeared from the context of the will that it was the intention of the testator that the power' granted should be exercised by sale only or for the benefit of others, which is sometimes made manifest by the purpose for which the power of disposal is given and sometimes by the connection in which the word ‘dispose’ is used, the contention might be maintained. But such is not this case. The grant of power to dispose of here is full and general, to be exercised by the grantees for their own benefit, unhampered as to the mode in which it is to be exercised and not associated with any words which upon the maxim of ‘noscitur a sociis’ or the principle of ejusdem generis could he construed to put any limit upon their power. In other words, the power here is general and unlimited as contradistinguished from the particular or limited powers contemplated in the authorities cited in support of this contention. ’ ’

It is very seldom that two wills are found containing the same phraseology. The addition or omission of a single word often changes the entire meaning of a power therein granted. A careful reading of the case of Grace v. Perry, supra, and the other authorities there cited, convinces us that where an absolute or fee simple title is devised, with the unrestricted power of disposal in the devisee, then such devisee may encumber by mortgage or deed of trust the property devised to him, notwithstanding the will may contain other provisions to the effect that such of the estate as the devisee may not dispose of shall pass at his death to other persons. In the will of Mr. Hooss now in judgment, we are not required to determine what interest in his lands he intended to vést in his wife, or the limit of her power to dispose of same, because said testator has informed us in the most unambiguous terms that his will shall be so construed as to vest in his widow and executrix, “absolute title to and in the whole” of his property, “to enable her to dispose of the same at her option, and that she may make a good title to the purchaser or purchasers.” In construing the Hooss will, we are convinced that it confers a broader and more definite power of sale than the power granted by the Dougherty will, in Grace v. Perry, supra, which was construed to embrace a power to encumber, as well as a power of sale. This last named case has never been overruled, or even criticised by the subsequent decisions of this court; but, on the contrary, is quoted with approval in the late case of Tisdale v. Prather, 210 Mo. l. c. 410.

We therefore hold that Barbara Hooss was possessed of the necessary power to make the deed of trust to her son and son-in-law; and that the foreclosure sale under said deed of trust vested the fee simple title to the hotel lot in defendants John Hooss and Barbara Huber.

Having arrived at the conclusion that the executrix had power under the will to encumber the hotel lot, it is unnecessary to consider what homestead rights she may have held in said lot.

,It is next contended by plaintiffs’ learned counsel that the deed of trust given by Barbara Hooss, executrix, to John Hooss and John Huber, was barred by the Statute of Limitations. The note which this deed of trust was given to secure was dated December 22, 1879, and it is indorsed with the following credits: April 21, 1887, $400; December 13, 1890, $100; January 7, 1893, $400; March 11, 1899, $10; January 14, 1903, $10.

Thomas Hooss, one of the defendants, testified that he made all of the above payments on the note for and at the request of his mother, Barbara Hooss, and that such payments were made on the dates shown by said credits on the note. It appears that Barbara Hooss probably requested Thomas Hooss to make the above'payments because she thought the debt was originally incurred by him, through .his father signing his notes to Biehle; but be that as it may, there is no controversy about the fact that said payments were made at the request of Barbara Hooss, the maker of the note, and some of them for the expressed purpose of preventing the debt from being barred by the Statute of Limitations; and we therefore hold that the payments had that effect; and that neither the note nor deed of trust was barred .at the date of the foreclosure in 1906. Objection was made to the evidence of Thomas Hooss, because Barbara Hooss was dead at the time of the trial. This point was not briefed by appellants; and it ' being clear to onr minds that said Thomas Hooss was competent to testify to the payments made at the request of the mater of the note, this point is also ruled against appellants.

It follows that the judgment of the circuit court should be affirmed; and that all the costs incurred in the attempt of plaintiffs to establish title to and partition the hotel lot should be taxed against the plaintiffs. It is so ordered.

Kennish, P. J., and Ferriss, J., concur.


author: GRAVES, J. PER CURIAM.

text:
    THOMAS C. WILSON, Administrator of Estate of HENRY W. PERKINS, Appellant, v. KING’S LAKE DRAINAGE & LEVEE DISTRICT.
    In Banc,
    July 15, 1911.
    1. APPELLATE JURISDICTION: Petition, and Demurrer Sustained: Amount in Dispute: How Determined: Interest. Where a demurrer to the petition was sustained, and plaintiff appealed, the court, in determining its .appellate jurisdiction, is not confined to the prayer of the petition in determining what is the monetary amount in dispute, but must take the whole instrument and determine what sum was involved and at issue at the date of the judgment from which the appeal is taken. And if the principal sum demanded, together with interest up to the date the judgment was rendered, amount to less than $7,500, the Supreme Court does not have jurisdiction of the appeal.
    2. -: Drainage District: Political Subdivision of State. A drainage district is not a political subdivision of the State in the sense of those words as used in the Constitution giving the Supreme Court appellate jurisdiction in a case in which a political subdivision of the State is a party. The words there used, "county or other political subdivision of the State,” mean a county, or such political subdivision as may be created having powers similar to those of a county, and do not include townships, school districts, levee districts, drainage districts, and such like minor political subdivisions of the State.

      Appeal from Lincoln Circuit Court. — lion.-
    Transferred to St. Louis Court of Appeals.

      F. L. Scofield and E. B. Woolfolk for appellant.

      O. E. Avery and Wm. A. Dudley for respondent.
   GRAVES, J.

This is an action to recover a money judgment, and a serious question is as to our jurisdiction under the Act of 1909,# increasing the jurisdiction of the Courts of Appeals to $7500. This case was not submitted to this Court until long after that act took effect,'and if the amount involved is less than $7500 it was our duty to certify the cause to the proper Court, of Appeals. The appeal in this case was taken October 17, 1906. -Plaintiff filed a petition, to which a demurrer was filed and sustained. To determine the amount we must, therefore, go to the petition itself. We are not bound by the prayer of the petition, but must take the whole instrument and determine what sum is involved and at issue at the date of the judgment from which the appeal is taken. [Wilson v. Russler, 162 Mo. 565; Wolff v. Matthews, 98 Mo. 246; Milling Co. v. Walsh, 97 Mo. 287; State ex rel. King v. Gill, 107 Mo. 44.]

The prayer of this petition reads: “Wherefore, premises considered, plaintiff prays judgment against the defendant for the said sum of $5672.56, the amount of said indebtedness so evidenced by said warrants, with six per cent interest per annum on the respective sums mentioned in said warrants, respectively, from the said dates thereof respectively. And that plaintiff have such other further and general or special relief in the premises as equity may require and as to the court shall seem meet.”

But going to the petition itself, we find this state of facts. In 1894, under the Act of 1893 (Laws 1893, p. 188) a proper number of persons residing and owning swamp and overflow lands in Pike and Lincoln counties, this State, presented their petition to the county court of Lincoln county, praying said court for the organization of the “King’s Lake Drainage and Levee District.” The petition was filed in Lincoln county because the greater portion of the lands to be incorporated therein was situated in that county. To this petition remonstrances were filed, and after consideration of both petition and remonstrances, the prayer of the petitioners was granted, and three commissioners were appointed to lay out and construct the work, one of whom was W. J. Seaman. These commissioners made their report as required by statute, and at the May term of the said county court in the year 1895 said drainage district was established under the name hereinabove set out, and the same was declared to he a body corporate. One Jamison, who had remonstrated, and whose lands were charged with $5,726 benefits and credited with $205.56 damages, appealed to this court. [King’s Lake Drainage and Levee District v. Jamison, 176 Mo. 557.] The closing language .of the opinion of this court in that case best described our disposition of it. Such language is: “Without further elaboration, it follows that Seaman was not a corhpetent commissioner, and that the circuit court was right in holding and in setting aside the report of the commissioners and the judgment of the county court. The judgment of the circuit court must therefore he affirmed, and the cause remanded to the county court of Lincoln county, to he by it taken up and tried as if the original proceeding was presented to it for the first time, and to proceed with the cause without regard to .anything that has heretofore been done in the cause, hut in conformity herewith and with the statute.” This opinion was handed down at the April term', 1903, of this court. The reason for thus disposing of the case is fully discussed in the .opinion and further note of it need not he made herein.

Pending the appeal in the Jamison case, the three commissioners proceeded to let contracts for the work of constructing the required levees and drains. The contract was awarded to A. V. Wills & Son in 1894, and on October 21, said Wills & Sons entered into a contract in accordance with this award. Later, in 1895, this contract was assigned to Thomas E.. Wilson. In said work were twelve, miles of levee which Wilson constructed. The said drainage district, through its president and secretary, issued to Wilson warrants upon the treasury of said district from time to time as the work progressed. Some were paid, but the four involved in this suit were not paid for want of funds. These four aggregate $5672156. The first is for $4437.10, and is dated May 22, 1896, and on its face calls for six per cent interest from date. The second is for $291.10, of date December 14, 1897, with interest as the first warrant. The third is for $279.79, of date February 4, 1901, with interest as above. The fourth is for $664.57, of date October 16, 1902, with interest as first stated. The first two above described were issued to Wilson and by him assigned to H. W. Perkins. The last two were issued direct to Perkins in lieu of other warrants theretofore assigned to him by Wilson. Perkins brought the suit, but died before the trial, and Wilson, who had been made his administrator, became party plaintiff.

Upon the filing of the mandate of this court with the county court that court proceeded as by our opinion directed. On November 13, 1903, the county court took up and heard said petition and found that the establishment of said drainage district was necessary, and again appointed three commissioners. In August, 1904, those commissioners filed their report, and on November 29, said report coming on for hearing was duly heard and by the court modified and approved, and on said date the court adjudged said district to be a drainage district under the name of “King’s Lake Drainage and Levee District,” and such was adjudged to he a body corporate on that date. These commissioners proceeded with the work and completed the levee and other work as described in the original petition. The petition, after charging all the matters which we have hereinabove detailed in brief, then specifically says:

“That in the construction of said work said commissioners adopted, appropriated and used said old levee its entire length of twelve miles and made same a part of and included samp in the work so by them' to be done, as such commissioners, for and on the behalf of and as the corporate authority of the defendant King’s Lake Drainage and Levee District, which thereupon and thereby received, accepted and appropriated the same with all the advantages and value thereof; and further that in pursuance of said report of said commissioners and of the said order and judgment of said court confirming same, large credits were given and allowed to the various land owners in said district on their assessments of benefits, for and on behalf of said twelve miles of levee so adopted, appropriated and used, thereby indirectly saving to the commissioners the full cost and expense originally incurred in the construction of said levee and for which the indebtedness herein declared on then existed and then and now remains unpaid.
“Plaintiff says that the cost of said twelve miles of levee to the first or original commissioners of said district and their successors so appointed as aforesaid was the sum of $18,690.92, and that same is and was reasonably worth that sum; and that for the building of same the said first named commissioners or their successors were unable to pay in full, but that said district was, at the time of the appointment of said last named or present commissioners and is yet, still largely indebted to plaintiff for the work of building tbe same; said indebtedness being evidenced by tbe treasury warrants hereinbefore referred to and then and now owned and held by plaintiff, all as aforesaid, and which said warrants are next set forth, filed and described as follows, to-wit:”

Then follows a description of the warrants and the issuance thereof as we have shortly described above.

Plaintiff then charges that the district issuing to him the described warrants and the present defendant are one and the same. The petition in this regard reads:

“Plaintiff says that the defendant King’s Lake Drainage and Levee District is a continuation of and is one and the same corporate body as the King’s Lake Drainage and Levee District under contract with and for which the said Thomas O. Wilson constructed the said twelve miles of said levee and which, by its said first mentioned board of commissioners in consideration thereof, executed to him the said warrants as hereinbefore set out. That by accepting, adopting, appropriating and using the said twelve miles of said levee so constructed as aforesaid, and making same a part of the work necessary to be done in protecting and reclaiming the lands within said district, the defendant is, and in equity and good conscience should be adjudged to be held to have ratified and confirmed the acts of the said William J. Seaman, William H. Baskett and Prank L. Wilson, the first named board of commissioners, and their successors in office as aforesaid in constructing same and in the incurring of said indebtedness to said Wilson therefor so evidenced by said warrants now held and owned by plaintiff as aforesaid. And that in equity and good conscience the defendant is and ought to be held and adjudged to be liable to the plaintiff for the amount of said warrants and the interest accrued thereon. And that the- defendant and its present corporate authority are, and by reason of the premises ought to be held and adjudged to be, estopped and precluded from denying such liability. That plaintiff is without remedy, recourse or redress on said warrants or for the value of said work for which same were issued, or otherwise in the premises, against said district or the lands embraced and included therein or the owners thereof, except through or against the now legally constituted corporate body thereof, to-wit, the defendant herein.”
The petition then avers that by reason of the premises and facts “an action hath accrued to the plaintiff to demand and recover against the defendant the sum of $567.56, the amount of the principal sum of said warrants numbered 5192, 189 and 218, and also lawful interest on the several sums mentioned in said warrants, respectively, from their respective dates aforesaid. ’ ’

A thorough examination of the petition shows that the action is not one upon the warrants themselves, but for a debt equal in amount to the warrants. The petition shows that this defendant was not incorporated until 1904 and that this judgment appealed from was entered in 1906. The old proceeding was torn up, root and branch, by the judgment of this court, in the case mentioned, and such opinion becomes the law of this case, whether right or wrong. With that opinion the contracts made and the warrants issued by the old board fell to the ground. What rights plaintiff may have are such as have accrued since the organization of defendant. So that if we count interest on the alleged balance at six per cent for two years, it does not make the amount reach the jurisdiction of this court. In other words, it is less than $7500. So that considering the amount involved at the date of the judgment, as such amount is gathered from all the facts pleaded, we are without jurisdiction.

There is, however, another phase of the case which demands consideration. The defendant is a drainage district. Is snch district snch a political subdivision of the State as to give us jurisdiction under the provisions of section 12, article 6, of the Constitution? We think not. It is true that we have said that it was a political subdivision of the State. [Morrison v. Morey, 146 Mo. 543.] But, so is a township or a school district. Whilst they are political subdivisions of the State, they are not such as are contemplated by the section of the Constitution, supra, referring to our jurisdiction. In School District v. Burris, 84 Mo. App. l. c. 662, Smith, P. J., after reviewing our cases, including the Morrison case, supra, said: “But if a municipal corporation is not a political subdivision of the State in a jurisdictional sense it must follow that a levee district or a school district, each of which are but quasi public corporations, possessing only a portion of the powers of municipal corporations, are not political subdivisions of the State in such jurisdictional sense. The courts of appeal have uniformly exercised a superintending control over the inferior courts of record in respect to cases therein originating when one of the parties thereto was a school district; and this jurisdiction, so far as we are advised, has never before been questioned. We must hold that a school district in a jurisdictional sense is not a political subdivision of the State.”

The Burris case was approved by this court in Banc, in an opinion by Brace, J., in which all concurred, in the case of School District v. Boyle et al., 182 Mo. 347.

In Morrison v. Morey, supra, whilst we there said that a levee district was a political subdivision of the State, yet, we did not say it was such within the meaning of the constitutional provision defining the jurisdiction of this court. The question of jurisdiction was not raised, and for reasons apparent on the record in that case. There was in that case a constitutional question which clearly conferred jurisdiction upon this court in that case.

So, too, in State ex rel. Stotts, Collector, v. Wall et al., 153 Mo. 216, following the Morrison case, we incidently said that a levee district was a political subdivision of the State, hut the question of the jurisdiction on that point was not raised. In fact the question of jurisdiction was not raised at all, and the title of the case would indicate the reason.

In the later case of State ex rel. v. Drainage District, 192 Mo. 517, an original action of mandamus in this court, where the amount involved was $65,000 in bonds, the question of jurisdiction was not raised. We there said: “The first contention of the relator is that the respondent district is a private and not a public corporation, and therefore the Act of 1905' could not have the effect of repealing' the old law under which the respondent corporation was acting. This contention is untenable. In Morrison v. Morey, 146 Mo. l. c. 560, and in Land & Stock Co. v. Miller, 170 Mo. l. c. 253 and 258, a like contention was held untenable, and drainage corporations were held to be public, governmental agencies, and in no sense private corporations. The conclusions then reached are emphasized both by section 8253, Revised Statutes 1899, and by section 8253 of the Act of 1905, both of which decláre that the judgment of the circuit court shall duly declare and decree said drainage district ‘a public corporation of this State.’ Thus such corporations have been declared to he public corporations, both by this court, and by the express declaration of the acts under which they are authorized “to he formed and to exist.”

In the case of Kansas City v. Neal, 122 Mo. l. c. 234, we said: “That Kansas.City is not a p.olitical subdivision of the State, within the- meaning of the Constitution, is equally clear. Subdivision means to divide into smaller parts the same thing or subject-matter, and no city or town in this State is a subdivision thereof except the city of St. Louis, and it became so under sections 20, 22 and 23, article 9, State Constitution, and by the act of the Legislature in pursuance thereof setting off certain defined boundaries defining the city limits, and conferring upon the city all the rights and privileges possessed by a county. Voters in all other cities and towns act in common with the voters of the county or counties in which they may be located in electing county and state officials, and do not simply, because of their incorporation, become subdivisions of the State. Kansas City is within Jackson county and is not a subdivision thereof or of the State.”

We are of the opinion that the words, “other political subdivisions of the State,” as used in section 12, article 6, following as they do, the word “county,” mean such political subdivisions as may be created having powers similar to those of a county, and do not refer to townships, school districts, levee districts, drainage districts, and such like minor political subdivisions of the State. We are thereof of the opinion that the defendant is not a political subdivision of the State in a jurisdictional sense and within the meaning of section 12, article 6, of the Constitution.

We have discussed only such questions as we had to discuss on the question of jurisdiction. In our judgment, we are without jurisdiction in this case, and the merits thereof we leave open for the St. Louis Court of Appeals, to which court we transfer the cause.

PER CURIAM.

The opinion of Graves, J., in Division No. One, is adopted as the opinion of the court.

Valliant, G. J., and Kennish, Ferriss, and Brown, JJ., concur; Lamm and Woodson, JJ., dissent.