author: GRAVES, J.

text:
    SPENCER VAUGHN et al. v. FRANK VAUGHN et al., Appellants.
    Division One,
    June 28, 1913.
    1. APPEAL: Abstract: Printing Questions and Answers in Full. The printing of the questions and answers of the oral evidence in full in the abstract of the bill of exceptions, is not a violation of the rules. Such an abstract, if not otherwise defective, will be held sufficient.
    2. -: Bill of Exceptions: No Time Given for Filing: New Rule 32. An abstract of the bill of exceptions prepared and filed since the adoption of new Rule 32, although it recites “defendant given until the - day of - to file bill of exceptions,” if it also recites that “bill of exceptions duly filed August 4, 1910,” will be held to show a timely filing of the bill of exceptions, unless respondent produces the record showing that no leave was given to file it, or that if leave was given it was not filed in time. The expression in the abstract “bill of exceptions duly filed” cast the burden on respondent to show that recital was not true, notwithstanding the other recital “defendant given until the - day of - to file bill of exceptions.”
    3. SETTING ASIDE DEED: Thought to Be a Will: Deference to Chancellor. Where a warranty deed by two old, decrepit and ignorant colored people, conveying their home to their son, was drawn by a lawyer employed by the son, and they testified that they thought they were making a will, although they were not able to tell the difference between a will and a deed, and the son testified that the old folks were to live on the place during their lifetime, though no such reservation was made in the deed, and there was other substantial evidence to support the finding of the chancellor setting aside the deed, and that decree reached a righteous result, the Supreme Court will defer to the finding of the chancellor who had the witnesses before him and was best able to judge of their credibility.

      Appeal from Louisiana Court of Common Pleas. — Hon. David H. Eby, Judge.
    Affirmed.

      J. E. Pew and Pearson & Pearson for appellants.
    (1) There is no evidence of any fraud or false representations in connection with the making of said deed. After deed was written, it was read and explained, signed, signatures witnessed and acknowledged, by and in the presence and hearing of three disinterested white persons, all witnesses in this case. There was neither occasion nor motive for anyone of these white witnesses doing these old folks, colored as they were, the least injury. Their testimony was that the word “will” was never mentioned during the course of the preparation and signing of said deed. (2) There is no probative or substantial evidence that the deed in question, is not the instrument intended at the time to have been made. Respondents did not know what a “will” was; nor the difference between a “will” and' a deed, (a) There was an instrument, intended to have been made by respondents to appellants, pursuant to an agreement averred in the petition and proven by the testimony, transferring the property in question from respondents to appellants. Upon the trial the respondents contended that they intended that instrument to be a “will,” not a deed; that they were deceived, and by false representations made to believe that the instrument they were signing was a “will.” But both respondents testified they did not know what a “will” was; neither did they know the difference, between a “will” and a deed, (b) Frank Vaughn testified, that it was the agreement between the respondents and himself, that they were to give him a deed. He was given a deed. At the time of the execution and delivery of the deed it was thoroughly and fully explained to the respondents, and they were perfectly satisfied with it. A “will” was never thought of until about the time of the institution of this suit; and, as a basis and pretext for the institution and prosecution of the same, to avoid respondents’ obligation to appellant, (c) That this deed was the instrument intended to be executed at the time, there really can be no doubt; -because its execution was a compliance with the terms of the contract previously entered into by the parties, it-being the same contract “averred in the petition and proven by the evidence.” (3) In setting aside this deed, the court sets aside and renders nugatory a valid-contract, a contract “averred in the petition and proven by the evidence,” and partly executed by the appellants, and prohibited and prevented from being wholly executed by the action of the respondents. G-upton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Hiatt v. Williams, 72 Mo. 214-; Kinney v. Murray, 170 Mo. 674; Grantham v. Gossatt, 182 Mo. 651; Kussell v. Sharp, 192 Mo. 270. Appellants have furnished and provided food, light and fuel for respondents for something over a year; paid doctors’ bills; and made some repairs on house. The setting aside of this deed takes no account of appellants’ rights in the premises; makes no adjudications or findings as to money expended in performing their part of this contract, concerning the validity of which, no question is made. (4) Eespondents did not offer to do equity, before instituting suit to set aside this deed. In their petition respondents made no offer to pay appellants for what they had laid out and expended on them, or in the repair of the house. They made no tender, nor offer of a tender, in court. No effort was made to put appellants in statu quo, as was their duty to do before instituting suit to set aside deed. Small v. Speece, 131 Mo. App. 513; Eobertson v. Construction Co., 115 Mo. App. 456; Hayden v. Eailroad, 177 Mo. App. 76; MacNealy v. Baldridge, 106 Mo. App. 11; Ungerer & Co. v. Cheese & Fish Co., 155 Mo. App. 95.

      John W. Matson for respondents.
    Under the pleadings and evidence in this cause the decree setting aside the deed to appellants of August 7,1906, is proper. Even though the reasons given by the court for that decree may have been different, the decree itself is the only one that should have been given and entered in this cause. Ennis v. Burnham, 159 Mo. 517; Reynolds v. Reynolds, 234 Mo. 144; Bleyer v. Bleyer, 219 Mo. 99; Jones v. Belske, 238 Mo. 524. '
   GRAVES, J.

Action in equity by Spencer and Caroline Vaughn, two aged and decrepit colored people, to have a deed, warranty in form and which conveyed all their earthly possessions, set aside. The grantees, who are the defendants herein, are a son and his wife. The petition charges (1) that the mental and physical conditions of the grantors were such that they could not understandingly make a deed; (2) that they were deceived by the connivance and fraud of defendants into making a deed, when they understood that they were making a will by which defendants were to get the property upon their death in consideration of defendants’ moving into the property and supporting and caring for the said Spencer and Caroline during the remainder of their lives, and (3) that the defendants had wholly failed to perform their part of the agreement, whether such agreement he considered as expressed in a deed or in a will. Shortly stated this is the petition.

The answer placed these charges in issue and to parry the blow of the charge last made in the petition, defendants aver that they moved into the house where plaintiffs lived, and the one conveyed to them, and did support and care for plaintiffs so long as plaintiffs would accept their services and until plaintiffs prevented them from so doing.

The reply placed in issue all new matter in the answer.

A trial was had at the November, 1909, term of the Louisiana Court of Common Pleas, and a judgment declaring said deed null and hoid and cancelling the same of record and reinvesting the title of the property in Caroline Spencer, was entered. Prom this judgment the defendants have appealed.

T. Plaintiffs ask us, by motion duly filed, to dismiss the appeal herein, and assign the following reasons:

“First: Appellants have failed to abstract the evidence in this cause as required by the rules of this court.
“Second: As shown by appellants’ so-called record, and at the bottom of page 246, appellants were not given any time within which 'to file their bill of exceptions. Appellants simply state as shown by said record, at the bottom of page 246, to-wit:
“ ‘November 27, 1909. Affidavit for appeal filed; appeal allowed to Supreme Court of State of Missouri. Defendant given until the-day of-to file bill of exceptions.’
‘ ‘ This certainly is not a sufficient compliance with even the liberal Rules 31 and 32 of this court.”.

(a) The appellants in their abstract seem to have printed the bill of exceptions in full, giving questions and answers, where oral evidence was taken. The first ground of the motion strikes at this method of abstracting the evidence. The point is not well taken. We have always held that the. printing of all the evidence in form of questions and answers, was not a violation of the rules. This point is therefore overruled.

(b) Nor is there substance in the other objection. This abstract was prepared and filed since the adoption of our new rule Dex cember 10, 1912. In the printed volume -g rep0rted as rule 32. Such rule, so far as applicable to the point here made, reads:

“Hereafter no appellant need abstract record entries evidencing his leave to file, or filing of, a bill of exceptions. It shall be sufficient if his abstract states the bill of exceptions was duly filed. The burden is then on respondent to produce here the record showing the contrary to be the fact, if he make the point. ’ ’

In the abstract before us and just following that portion of the abstract quoted in plaintiffs’ motion to affirm we find this statement:

“August 4, 1910 — Bill of Exceptions duly filed.” The point made by respondents is that the abstract does not show that any time was given to file a bill of exceptions in vacation. The Louisiana Court of Common Pleas has two terms a year, one in November and the other in May. Appellants fully complied with our recent rule when they said “bill of exceptions duly filed.” The burden was then cast upon respondents to show that no leave was given to file a bill of ex-' ceptions in vacation, or that it was not filed within the time given. This respondents make no attempt to do. This point is therefore not well taken. The motion to affirm is overruled.

II. We shall not deal at length with the facts of this case. The deed in question was drawn by a lawyer employed by the son. Caroline Spencer, in whom was the legal title, had been stricken with paralysis on the left side, and her physician testified that her mentality was so- seriously affected that he did not think her capable of entering into any intricate business contract. We shall, however, pass up this branch of the evidence, as well as that branch bearing upon the son’s failure to keep his part of the agreement to look after the two old folks. The trial court found in effect that the defendant Frank Vaughn had fraudulently gotten those two old, ignorant and decrepit colored folks to make a warranty deed' when they understood and thought that they wére making a will. Upon this question there is a conflict of evidence, and the chancellor nisi had the witnesses before him and judged their credibility from their appearance and- demeanor upon the stand. We are not hound by the finding, but this is one of the cases where we feel like the judgment on the facts should not be disturbed here. It is true the two old colored people could not tell the difference between a will and a deed, hut they stuck to the story that they were to make a will and not a deed, and that they were impressed by defendant and his scrivener with the idea that it was a will they were signing when they affixed their marks to the instrument ■ in dispute.

We find that there is evidence in the record, if believed by the chancellor nisi, to authorize the findings of fact upon which he predicated his judgment. For instance, the son himself testified that it was understood that the old folks were to live on the place during their lives, and yet no such reservation was made in the deed. In our judgment, the chancellor might have found for plaintiffs upon other grounds, hut it is sufficient to say that the present findings of fact and judgment entered thereon reached a righteous result, and such judgment will he affirmed.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    BERRY FOUNDRY & MANUFACTURING COMPANY v. INTERNATIONAL MOULDERS’ UNION OF NORTH AMERICA et al., Appellants.
    Division One,
    June 28, 1913.
    APPELLATE JURISDICTION: Injunction: Judgment for $2000. Where plaintiff sued in injunction and alleged its damages to be ten thousand dollars, and upon a trial upon the merits recovered judgment for two thousand dollars, and defendants alone appeal, the Supreme Court does not have appellate jurisdiction. The value of the injunctive relief prayed cannot be considered for the purpose of ascertaining the amount in dispute; that was determined by the judgment for two thousand dollars for plaintiff, from which it did not, and defendants did, appeal.
    Appeal from Buchanan Circuit Court. — Hon. Luden J. Eas tin, Judge.
    Transferred to Kansas City Court of Appeals.

      Mytton <& Parkinson for appellants.

      Brown & Dolman for respondent.
   STATEMENT BY THE COURT.

The plaintiff corporation conducts a foundry and manufacturing- business. It sues the defendant labor unions, and the members thereof who are alleged to have quit the service of the plaintiff and to be engaged in a conspiracy to injure the plaintiff and prevent the ■conduct of its business by assaulting its servants and ■destroying its property. Plaintiff alleges that it is •damaged to the sum of $10,000, and prays judgment for said sum and an injunction restraining defendants from further interference with its business, its prop- j «erty, or its employees.

The defendants entered their appearance and filed .answers denying- all charges contained in plaintiff’s petition and moved to dissolve the temporary injunction granted thereon. On the consideration of this motion, hy agreement of parties, the case was tried on its merits and resulted in a judgment in plaintiff’s favor for $2000 and a permanent injunction against the defendants. Prom this decree defendants duly appealed. On the argument of the case in this -court the question of its jurisdiction arose and respondent took leave and filed a brief on that point.

OPINION.

I.

BOND, J.

(After stating the facts as above). — The

jurisdiction of this appeal is pivoted on the amount in . dispute. Under the present statute, when that does not “exceed $7500 exclusive of costs” the appeal must be taken to the proper Court of Appeals. [R. S. 1909, sec. 3937.] This is conceded by the learned counsel for the respondent -who insists that the value of the injunctive relief must be considered; that when this is added to the amount of the judgment the aggregate sum exceeds the amount fixed by the statute as the measure of the jurisdiction of the Kansas City Court of Appeals, to which, otherwise, this appeal should have been taken.

There is nothing in this record which affords any legal basis for estimating the value of the injunction, as distinct from the amount of damages awarded on the trial, for plaintiff’s petition does not set any value on the injunction sought, other than the allegation therein that it has been damaged in the sum of $10,-000 and was still being injured.

The court, however, found that the plaintiff was only damaged to the amount of $2000 and the plaintiff accepted that ascertainment of its loss and took no appeal from the judgment to that effect. Had the plaintiff appealed, then the amount in dispute would have been the difference between the sum claimed in the petition and the finding of the court, or in this case $8000.. [Schwyhart v. Barrett, 223 Mo. 1. c. 501; Dowd v. Brake Co., 132 Mo. 1. c. 581; Holker v. Hennessey, 141 Mo. 1. c. 535; Mathews v. Railroad, 231 Mo. 1. c. 625.]

But the rule is, where, as in this case, the defend- - ants only appealed, that the amount in dispute cannot exceed the sum of the judgment from which the appeal is taken. [Smith v. Sedalia, 228 Mo. 1. c. 506; Bridge Co. v. Transit Co., 205 Mo. 1. c. 181; Hensler v. Stix, 185 Mo. 238; McGregor v. Pollard, 130 Mo. 332.]

The case of Gast Bank Note & Lithograph Co. v. Fennimore Assn., 147 Mo. 557, cited in the respondent’s brief, is quite opposed to the theory that the appeal in this case could come to this court. There the action, like the present, was to enjoin alleged strikers; the petition stated the value of the property of the plaintiff to be $225,000; it did not allege the amount of the damages thereto but prayed a permanent injunction. On the trial a temporary injunction was dissolved and the suit dismissed. Plaintiff appealed. This court transferred the cause to the St. Louis Court of Appeals on the ground that the record failed to show that the amount in dispute exceeded $2500, which was at that time the moneyed standard of the jurisdiction of the St. Louis Court of Appeals. In the case at bar the plaintiff did not appeal and the allegation of damages in its petition was merged in judgment in its favor by the finding of the court -at a less sum than the present pecuniary limit of jurisdiction of the Kansas City Court of Appeals. The only claim made for damages in plaintiff’s petition having been thus. fixed by the court to plaintiff’s satisfaction, we are not permitted to go behind that in order to find an unalleged damage or loss of a sufficient amount to give us jurisdiction of the present appeal.

The learned counsel for respondent cites some cases from the Federal Eeporter which we do not find to be in point or helpful in the construction of our statute. In Schwyhart v. Barrett, supra, 1. c. 503, this court (Valliant, J.) said: “"When we are construing a statute of our own State relating to the jurisdiction of our State courts it is not always safe to follow a decision of a Federal court construing an act of Congress relating to the jurisdiction of Federal courts, because those courts exercise a peculiar jurisdiction and the acts of Congress concerning the subject are to be viewed from that peculiar standpoint.” The learned judge then cited and reviewed certain decisions of the Supreme Court of the United States which sustained the views of this court as expressed in the decisions heretofore cited.

Our conclusion is, that the judgment for $2000 from which the defendant appealed, is the only legal basis, under the pleadings and record in this case, for ascertaining the amount in dispute, and that the appeal taken in this case should be transferred to the Kansas City Court of Appeals. It is so ordered.

Woodson, P. J., Lamm and Graves, JJ., concur.


author: LAMM, J.

text:
    SAMUEL S. SHULL, Appellant, v. JAMES W. BOYD.
    Division One,
    June 28, 1913.
    1. CONTEMPT: Jurisdiction. This court did not in In re Shull, 221 Mo. 623, pass upon the question of the jurisdiction of the circuit court to adjudge a witness in contempt before the case was actually on trial on the merits, but left that question open. All that was decided in that case was that the warrant of commitment was fatally defective in the narration of facts, namely, the questions and answers upon which the judgment for contempt was pronounced.
    2. APPEAL: Reply Absent from Abstract: .Affirmance. Where the abstract of appellant, who is the plaintiff, shows a reply was filed, but it is not set out in the abstract or its allegations reproduced, the judgment rendered for defendant upon his demurrer to the evidence will not be sustained on the assumption that the reply contained averments and admissions warranting the demurrer. When a case is tried as if a reply is in, the Supreme Court will not take the averments of the answer on new matter as admitted.
    3. FALSE IMPRISONMENT: Contempt: Damages from Attorney: Preparing Sheriff’s Return in Habeas Corpus. Where plaintiff had been committed for contempt and after his discharge under the writ of habeas corpus, sued, for false imprisonment, the attorney who had examined him upon the return of the subpoena duces tecum and to whose questions he refused to reply, testimony that said attorney prepared or assisted in preparing the sheriff’s return to the writ of habeas corpus was properly excluded, the return being entirely neutral and showing precisely those things the statute requires an officer to embody in his return, and there being no attempt to show that the attorney was actuated by malice. The sheriff had the right to take legal advice and presumably consulted said attorney for that purpose.
    4. PRACTICE: Production of Papers Prior to Announcement of Ready for Trial: Subpoena Duces Tecum: Contempt. The circuit court has power to issue a subpoena duces tecum to compel, not only the appearance of a witness, but the production of papers, as an essential precedent step leading up to the trial and in preparation therefor; and before compelling plaintiff, who has brought a suit to cancel certain special tax bills, to answer ready for trial, the court can issue its subpoena duces tecum to a witness to produce such tax bills in court, and on bis appearance compel him to submit to an examination as to whether be has such tax bills in his possession and as to their whereabouts, and on his reiusal to answer commit him for contempt. And the witness cannot confine the inquiry to questions and answers as to whether he had the tax bills in his possession at the very time the subpoena was served or subsequently; the court is entitled to know if they were so hid or disposed of that a trial at that time was impossible.
    6. -: -: -: Jurisdiction: Incidents of Power: Refusal of Witness to Testify: Contempt. Jurisdiction includes the power to pronounce judgment and to award remedies provided by law, not only finally upon the cause on its merits, but in proceedings and steps necessarily precedent . and incident to the trial on its merits, in favor of or against persons (including witnesses) brought before the court in a manner sanctioned by law. Where the court has jurisdiction of the subject-matter and of the parties to the suit, it has jurisdiction to issue subpoenas duces tecum to compel witnesses to produce papers necessary to a proper disposition of the cause on its merits, and, on the witness’s refusal to answer reasonable inquiries as to the whereabouts of the papers, to do everything necessary to make the main power effectual, namely, to subject the witness to the pains and penalties of the statute for obstruction and impeding the orderly course of judicial proceedings.
    6. FALSE 1 IMPRISONMENT: Contempt: Discharge on Habeas Corpus: Jurisdiction: Refusal to Comply With Subpoena Duces Tecum. The mere fact that the warrant of commitment, issued after a subpoena duces tecum had been issued for plaintiff requiring him to produce certain tax bills and after his refusal to answer proper inquiries concerning his knowledge of the whereabouts of said tax bills and he was committed for contempt, was irregular on its face, in not complying with the requirements of the statute, and in consequence he was discharged by habeas corpus, cannot be held, in a suit by him for damages for false imprisonment, to hark back and to destroy the jurisdiction of the court to require him to answer such inquiries and to commit him for contempt for refusing to answer, to the extent of making all persons participating in the hearing guilty of trespass.
    7. --: -:--: Suit Against Attorney: Malice: Probable Cause. An attorney, who, at the judge’s request, prepared a form of commitment of a witness who refused to answer proper inquiries concerning the whereabouts of papers necessary for a proper disposition of the case and which he by a subpoena duces tecum was ordered to produce, and who prepared the return of the sheriff to the writ of habeas corpus sued out by said witness and endeavored by argument to induce the court issuing said writ to deny it, notwithstanding which it was issued and the witness was discharged because of defects on the face of the warrant, is not liable for damages in an action for false imprisonment in a suit brought by such witness, there being no evidence of malice on the part of the attorney, and probable cause being apparent. Something is due to the office and function of an attorney moving in the usual professional orbit, so long as those functions are performed in good faith and have the honest purpose of protecting the interests of his client.
    Appeal from Buclianan Circuit Court. — Eon. Luden J. Eastin, Judge.
    Affirmed.

      L. G. Gabbert and Warren Rogers for appellant.
    (1) That Mosman had no jurisdiction as a judge of a court to enter the pretended judgment and issue the pretended commitment, is shown by the evidence to the effect that there was no case on trial when he pretended to enter of record an order upon which the commitment for alleged contempt was issued by him. No case being on trial, he had no legal right to proceed at all against appellant for refusing to answer questions. He could not commit for contempt for failure to answer questions. The pretended judgment and commitment were void. In re Shull, 221 Mo. 623. See cases under point 3. (2) Even though Judge Mos-man did have jurisdiction to adjudge a contempt, still the respondent would be liable in this case for false imprisonment, .because in this case, there was no adjudication of a contempt of court, and defendant drew up a pretended judgment and pretended commitment directing the sheriff to imprison appellant five days. The judgment was void in not adjudging a contempt, the commitment was void in not setting forth, an adjudication of a contempt, said Boyd handed same to said Mosman and induced him to sign same and place same in hands of sheriff, and from these facts the jury should have been allowed to decide whether said Boyd was not guilty as charged in the petition. He could not be protected from liability where the pretended judgment and pretended commitment which he wrote were wholly void, where they accomplished his purpose of imprisoning appellant. Such void commitment (void on its face) could not protect even the sheriff or the judge himself. Patzack v.-Von Gerichten, 10 Mo. App. 424; Ray v. Dodd, 132 Mo. App. 444; Monson v. Rouse, 86 Mo. App. 97; Boeger v. Langenberge, 97 Mo. 390. (3) A court may have jurisdiction of a case and yet be without power to try it or take action in it other than to continue, or dismiss it. Before the court may act in a case a party to the case must ask to have it taken up. At least one party to it must announce ready for trial before a witness can be placed on the stand. The court cannot even pass on a pleading filed unless a party to the suit take it up and present it to the court. Clouser v. Noland, 72 Mo. App. 217; Cerenell v. King, 118 Mo. App. 191; Cross v. Gould, 131 Mo. App. 585. (4) The court erred in refusing appellant’s offer to prove that Boyd prepared the return of the sheriff to the writ of habeas corp%is issued by the Supreme Court In re Shull, in which Shull was attempting to gain his liberty — that Boyd prepared it with the purpose of defeating him in gaining his liberty — that the return as prepared was actually used by the sheriff. This evidence would show that Boyd countenanced Shull’s imprisonment and that the imprisonment was by his direction, advice and assistance, bringing this case directly under the language of Monson v. Rouse, 86 Mo. App. 97.

      Culver é Phillip, Kendall B. Randolph and Perry A. Brubaker for respondent.
    (1) At the trial of this case, the plaintiff, now-appellant, failed to produce any evidence to sustain any material allegation in his amended petition. It was therefore the bounden duty of the circuit court to order the jury to find for respondent. The evidence introduced by the appellant on the trial conclusively shows that the respondent never said one word, and never made one suggestion, and never indicated to the circuit court that appellant, for failing to answer the questions asked' him by Judge Carolus, and the respondent, ought to be found guilty of contempt of the court. The record shows that the circuit court — Judge Mosman presiding — held that the questions propounded by Judge Carolus and Mr. Boyd, when the appellant was on the witness stand, were legal and proper. The appellant says he declined to abide by the decision of 'the circuit court. The appellant was sworn as a witness before the said circuit court. He alleges in his petition, and swears that he was under the process of the court by a duces tecum subpoena to bring the said tax certificates into court. The parties were ready for trial, if the said papers could be found or produced. It is the law, and has been the law for two hundred years, that when an attorney in a case is brought into court by duces tecum subpoena commanding him to bring papers, which are necessary to the final adjudication of the case, he must do so. If he has any excuse for not doing so he must make his excuse to the nisi prius court, and that court has a right to scrutinize his alleged excuse, and ascertain whether it be real or otherwise. Bull v. Loveland, 27 Mass. (10 Pick.) 9; 8 Am & Eng. Ency. Law p. 28; Denton v. Erwin, 5 La. Ann. 18; Pickett v. Wallace, 54 Cal. 147; Amey v. Long, 9 East. 473; Chaplain v. Briscoe, 5 Smedes & Marshall (Miss.), 208; Sears v. Hathway, 12 Cal. 277, 14 Am. & Eng. Rep. 27; Burns v. Superior Court, 140 Cal. 1; In re Mitchell, 12 Abb. Prac. 249; Ex parte v. Gfeller, 178 Mo. 270; In re Charles Dunn, 9 Mo. App. 255. (2) It goes without saying that the circuit court had jurisdiction at the time the appellant was asked the questions, in its court, by its order and under its direction. That fact is corroborated by appellant’s testimony, and statements made by him when he was before the court on May 7 and 8, 1909, as a witness. He was then attorney for .said Bank of North St. Joseph. Finley v. Refrig. Co., 99 Mo. 562. (3) “Even if the circuit court had no right to inquire whether its process had been, or was complied with, still the stalwart, admitted, unapproachable, undeniable fact that Boyd never directly or indirectly stated or suggested to the circuit court that Shull should or ought to be found guilty of contempt, or fined or punished in any way, stands proved by Shull.” This court and all other courts have decided that where a court finds a person guilty of contempt, that person could not sue the judge of the court or any other person connected with the trial of the law suit. McIntosh v. Bullard, 129 S. "WV 87; Sweeney v. 0 ’Dwyer, 197 N. Y. 499. (4) The appellant testified that he appeared in court on May 7 and 8, 1909, as an attorney for the Bank of North St. Joseph, one of the defendants, which Mrs. Keller was suing, to set aside certain void tax bills. He also alleges in his petition and swears that he appeared in said court under the process of the court, namely, a duces tecum subpoena. He alleges that questions were asked him by the court in open court, and he refused to answer. His complaint against the respondent is that the circuit court thought he ought to answer certain questions. This is the sum and substance of the allegations in the petition. No'cause of action is therein stated, and if there was a cause of action it is absolutely disproved by the appellant in his evidence introduced on the trial of this case. McIntosh v. Bullard, 129 S. W. 85; Finley v. Refrigerator Co., 99 Mo. 559. (5) When he was before the court as an attorney for the bank and under a notice to produce papers, and the subpoena duces tecum, and when the case was on trial before the court without a jury, and the court desired to inquire from him whether he had obeyed the process of the court, the court certainly had a right to inquire of him concerning the matter. McIntosh v. Bullard, 129 S. W. 87; State ex inf. v. Shepherd, 177 Mo. 205. (6) Even if Boyd had complained to the court and tried to get the court to use its process, and did so in good faith, he would not be liable. Brueckner v. ■ Frederick, 109 Mo. App. 618; Boeger v. Langenberge, 97 Mo. 390; Mon-son v. Rouse, 86 Mo. App. 97; Warren v. Flood, 72 Mo. App. 205. (7) As all the parties to the suit and all the attorneys representing all the parties in the suit of Keller v. Roth and the Bank of North St. Joseph were present in court on May 7 and 8, 1909, and as the matter of the examination by Judge Carolus and Mr. Boyd, attorneys for Mrs. Keller, of Mr. Shull as a witness, then in court and sworn by the court to make answer concerning the possession of the said tax bills, which were in said suit sought to be set aside, the said circuit court was and is the only judicial tribunal clothed with power under the Constitution and the laws of Missouri to determine whether the questions asked Mr. Shull after he had been sworn as a witness, were proper, relevant and material. Ex parte Gfeller, 178 Mo. 270; Ex parte McKee, 18 Mo. 599.
   LAMM, J.

Plaintiff, an attorney at law, sued Laura E. Keller and James W. Boyd, her attorney, for false imprisonment, with the averment that the acts complained of were without excuse or provocation and maliciously done, laying his damages at $10,000 actual and $25,000 punitive.

At the close of his own evidence plaintiff dismissed Laura E. Keller, and, on behalf of defendant Boyd, the court gave an instruction directing the jury to return a verdict for him. Saving an exception, plaintiff took a nonsuit with leave. Failing to have the nonsuit set aside on timely motion, plaintiff again excepted and comes up by appeal.

Questions here seek a resume of pleadings and facts.

The pleadings.

Summarized, the petition avers that on a given date there was pending in Judge Mosman’s division of the Buchanan Circuit Court a suit entitled Keller v. Roth et al. (it turns out that a certain named bank was co-defendant with.Roth; for convenience we will call that defendant “the bank”). That Mr. Boyd represented Mrs. Keller in that suit; that when the case was called for trial, plaintiff refused to announce ready and the case did not go to trial; that at that time defendants herein, who were attorney and client in the Keller-Roth suit, “persuaded and induced” Judge Mosman to permit them to ask this plaintiff questions concerning certain tax bills; that plaintiff had been subpoenaed in the Keller-Roth suit to appear as a witness and have with him certain described tax bills; that he'appeared in obedience to said subpoena duces tecum. That the questions said judge permitted the present defendants to ask concerned the possession and disposition of said tax bills ‘prior to the service and issue of such subpoena; that plaintiff refused to answer them; that the Keller-Roth case was not on trial, such questions were not legally before Judge Mosman as a judge or court; that having refused to order plaintiff to answer the questions the present defendants continued asking them and “persuaded and induced” Judge Mosman to order plaintiff to answer them, which plaintiff refused to do; thereupon the present defendants persuaded and induced Judge Mos-man to enter a judgment purporting to adjudge plaintiff guilty of contempt for such refusal and to have him committed to the county jail, which was done, and he was confined there for four hours “with felons and ■criminals.” That the judgment and commitment were void in failing to adjudge plaintiff guilty of an offense. The petition then goes on to charge that the present defendants wrote the judgment and commitment and induced Judge Mosman to enter the same and to issue the commitment; that plaintiff was discharged from said commitment by a writ of habeas corpus issued by this court; that the present defendants -prepared the return of the sheriff to said writ and participated in an attempt to get the Supreme Court to refuse to release him, in the habeas corpus proceedings. That the action of Judge Mosman in ordering plaintiff to answer questions and adjudging him guilty of contempt and committing him to jail was without authority of law and was known to be by them. That the imprisonment of plaintiff was given wide publication, caused him humiliation and his reputation to suffer, put him to great expense and bodily discomfort, etc., to his damage, etc.

The joint answer of Mrs. Keller and Mr. Boyd admits the Keller-Roth suit was pending, that defendant Boyd was attorney for .Mrs. Keller and that the subpoena duces tecum was issued for Mr. Shull requiring him to bring designated tax bills into court for use in the trial of that suit. It is next averred that the object and nature of the Keller-Roth suit was to cancel said tax bills and their lien upon certain real estate; that the bills were necessary to the trial; that the circuit court had full jurisdiction of the suit, parties and witnesses; that plaintiff refused to bring- in the tax bills then in his possession; thereupon he was sworn to testify in regard to the matter and proper questions were asked him by said judge respecting his said failure and his custody and control of the bills, which in a disrespectful and contemptuous manner plaintiff refused to answer. That he was thereupon adjudged guilty of contempt of court and committed to jail for five days, unless he should in the meantime answer said' questions. Whether plaintiff was actually confined in jail, defendants say they'have no knowledge or information sufficient to form a belief. Defendants deny they exercised any influence in procuring the judgment or its execution.

A reply was filed, hut what it admitted or denied, or its scope or character in any respect, is not at all disclosed.

The facts.

The abstract is made from stenographic reports of the testimony of two hearings, wide apart, one'the contempt case, the other the instant case for false imprisonment. They do not always clearly indicate at which hearing this or that testimony was elicited, so they have discursive running comments, arguendo, by Mr. Shull when on the stand in the contempt proceeding, either poorly reported or loosely delivered, resulting in a record made up in part of what Lord Chief Justice Holt once called ‘‘skimble-scamble stuff.” It is not a light task to separate the wheat from the chaff, i. e., fact from comment. Doing the best we can, a summary of the facts follows (we use respondent’s abstract, for that is perfect; appellant’s is not):

Two attorneys, Carolus and Bothwell, represented plaintiff in the Keller-Roth suit at the outset, Mr. Boyd coming into the case finally to assist. There is some mystery about the attorneys representing defendants. Of record, Warren Rogers, Esq., who officed with Mr. Shull, represented them. But Mr. Shull testified he also had authority to appear or not as he chose. His name was not signed to the pleadings and it would seem at the outset he desired to keep in the background any professional relation to the suit, if he had any. At a time dark, Mr. Shull was employed by a Mr. Crowley of Andrew county, who (it now appears) at that time owned the tax bills, but he was not a party defendant.The fact of Mr. Shull’s employment by Crowley or Crowley’s connection with the subject-matter in litigation in the Keller-Roth suit, to-wit, the tax bills, was not disclosed to the court in the contempt proceedings but, as said, appears now and is testified to by Mr. Shull in the instant case. As we gather, the Keller-Roth suit was in equity to relieve Mrs. Keller’s lots of the lien of certain special tax bills for street improvements and to cancel those bills. The case was regularly reached on the docket for trial on a certain day. On that day when it had been called no final announcement had been made, there being a question whether plaintiff Keller was ready until the tax bills were in court. In this condition of things, a Mr. Smith (an officer of the bank) appeared in obedience to notice and notified .the court the bank had not possession of the bills, but that Mr. Shull had them. The character of the defense the bank was making can only be inferred by implication from what transpired and side remarks. "We assume therefrom the bank disclaimed any title to the bills or any interest in the litigation and it seems to be conceded the bank’s co-defendant, Roth, had parted with her title also. We gather that the bank had been collecting them, and was sued on the theory it held or claimed an interest in them. At any rate, preparatory to a final announcement on a call of the case for trial, the bills were wanted as a condition precedent to an announcement of ‘£ ready, ’ ’ and it was ascertained in that emergency that Mr. Shull had them in his possession. Appellant did not introduce the petition in the Keller-Roth case, but, absent that, enough appears to show to us that the cause may proceed here on the theory those bills were necessary to that trial. Mr. Shull was not then in court and, as said, did not appear as an attorney of record; thereupon in response to a telephone message purporting to come from Judge Mosman to the effect that his presence was wanted, he came to the court room and there was served with a notice to produce the tax bills for use at the trial. The record tends to show at one place inf erentially, we think, that he had them then in his possession in the court house, but Mr. Shull testified they were left by him in his office and that may be accepted as a fact. At all events he refused to. produce them for use at the trial on a notice, suggesting that the way to get them was by a subpoena duces tecum. At that stage all parties seemed to impliedly admit the bills were material evidence, but as Mr. Shull was not a party to the suit and as the notice was not based on an affidavit and an order of the court, he stood on that technical ground in refusing to produce them, but announced that he would respond to a subpoena diwes tecum. We can make nothing out of the record on the point except that Mr. Shull invited the issue of this subpoena. Thereupon the court ruled with him and directed the attorneys for Mrs. Keller to issue such subpoena. This was about twelve o’clock. Such subpoena was issued instcmter, but before issued, at least before it was served, Mr. Shull went to his office knowing the subpoena would dog his heels. It will be of interest to ascertain from Mr. Shull’s own lips, not only his intentions, but his attitude, towards these bills, the trial and the court. Here it is: “I had told the court when Mr. Boyd was insisting on examining me before Judge Mosman, I had told Judge Mosman that that was a proceeding that did not justify them in asking me any questions about these matters, that is, that written notice, and perhaps I indicated that the only xemedy would be for them, if they desired to have me testify, would be to issue a subpoena duces tecum, and I knew if they did it I was going to do just what I did do, and before they issued it, and in anticipation of the probability that they would issue a subpoena duces tecum, went right down to my office and put them in the mail addressed to Mr. Crowley,- so they were not in my possession any longer.”

Mr. Shnll had the bills for two or three weeks until he parted with them in the few minutes of time elapsing between the time he knew they were needed (and knew Mrs. Keller was taking legal steps to get them), and the time the subpoena was served. The following questions and answers will further elucidate Mr. Shull’s position and motives:

“Q. You kept possession of the tax bills until shortly after noon of the day of the hearing? A. Just as quick as we walked down from the court room, they were deposited in the mail; that was before any subpoena was served, Judge Culver.
“Q. You knew these tax bills were involved in that suit? A. Yes, sir.
“Q. You understood that was a suit to cancel the tax bills if they were held void? A. Yes.
“Q. You knew that in order to try that cause those tax bills should be in the court room, did you not? A. Well, that depends. . . .
“Q. Didn’t you think it was proper, at least, it (the tax bill) should be there? A. I didn’t consider one way or the other.
“Q. Now, will you tell how you expected the plaintiff in that suit to prove that there were tax bills ? A. He was running his side; I was not supplying anything on behalf of the plaintiff; I was not running his side.
“Q. I am trying to find out what was in your mind. A. I don’t know that I had anything in my mind on that subject.
“Q. You refused that day to tell where these tax bills were? A. Yes, sir.
“Q. And you knew that they were involved in that litigation? A. Yes, sir.
“Q. And you knew it was proper, at least, as you say, to have those tax bills in the court room when. that case was tried? •• A. I said I didn’t think it was-improper.
“Q. Did yon know it would be proper? A. It would do no harm, but it wouldn’t be essential. . . -
“Q. You understand now, don’t you, that it is-preferable to have the original paper involved in a. suit in the court room? A. Sure, it is preferable.
“Q. And you understand that it is the duty of' the attorney to try to produce it in the court room?'A. Just as he pleases.
“Q. Don’t you understand that he must? A. I like to pursue the preferable course and it was preferable to me not to bring them. . . .
‘ ‘ Q. Did you have any information or knowledge-whatever on the subject as to whether or not these tax bills were owned by Mrs. Roth, or Eva Roth, to whom they were issued, or had been assigned to some one else? A. Verbally, or ih writing?
“Q. Any way? A. Verbally I knew they belonged to Mr. Crowley, but' whether there was anything on the back indicating that I don’t know.
“Q. You received them from'the president of the-Bank of North St. Joseph? A. Yes, sir.
“Q. That is the same bank that was named as a. party defendant in that suit before Judge Mosman?’ A. Yes, sir.”

A few minutes after Mr. Shull had thus designedly put it out of his power (as he thought) to respond to. that part of the coming subpoena requiring the production of these challenged tax bills, the subpoena duces tecum was seryed upon him calling for their production. It is apparent that matters had moved off at a smartish pace. For Mr. Shull estimates in one answer the time of the service as “two minutes” after mailing the bills in a mail box in his office building. After lunch Mr. Shull appeared at the court house in response to the subpoena. In the forenoon prior to its issue he had been sworn, without any objection on his part that we can see, but had objected to testifying about the bills until plaintiff announced ready and the court, as said, had agreed with him that a subpoena duces tecum was necessary. In the afternoon he objected to testifying in relation to- his production of the bills, claiming the case was not on trial on its merits. A proposition was made for him to make a statement, but he replied to the court in this fashion: “Well, if ’ they don’t want to ask me any questions, I am through.” Thereupon, on such .suggestion from him, the court directed that questions be asked him and he took the witness stand. Mr. Carolus commenced the ■examination and in response to his question, without •objection, he answered that he did not have possession of the tax bills. In response to another, he stated that he had had them. “I have had them, but I haven’t .got them now; I have not had them since I have been ■subpoenaed to come to this court room.” He was then .asked by Mr. Carolus when he last had them and by Mr. Boyd how many seconds before he was subpoenaed 'did he have them. His reply to the court was, “I maintain that is none of their business.” At that point the ■court said he could say when he parted company with' possession of the papers. “You can say that much.” His answer was, in effect, that he had not parted with possession since the service of the subpoena and they had not been under his control at any time- since. Being asked by Mr. Boyd how shortly before,that, he replied he did not think it was any of his business. The ■court then inquired if they were-under his control at ■the time of the “notice” (meaning thereby tne fore-moon notice to produce); he replied that “the question was not quite fair to him, ’ ’ and then went on to argue that he was not responsible to the court or any one •else in the case until the subpoena was issued and served. That at that time he did not have them and that such fact acquitted him. At this point there was further argument in which Mr. Carolus, Mr. Boyd, the court, the witness and Mr. Eogers took part. It will serve no useful purpose to set forth the details. Appellant’s counsel call it a “mix up,” a “mock trial,” and speak of “one Chesley Mosman,” in that connection, meaning thereby the honorable and learned judge ■of the court. The upshot of it all was that the court permitted the examination in order to- see whether the witness was proposing “to avoid the process of the court.” Questions were, then directed to him of the same character he had already refused to answer, to-wit, when he parted with possession of the papers. To them the witness would only reply that they were not under his control at the time he was subpoenaed and they were not in the hands of any person who had become his agent. He refused to answer when he had parted with possession or what he had done with the papers. The court told him that he did not wish to assess a punishment but would have to hold him in contempt. Witness said he would take his chances on that, “I can swear out .a habeas corpus on that I suppose.” At that point the court turned to Mr. Boyd and asked him if he would draw up a commitment in contempt. Mr. Boyd, saying nothing, commenced writing one, when Mr. Shull asked for time until the next morning- to look up the law. On that suggestion an adjournment was had. The next morning on being asked if he had satisfied himself on the law, a long argument ensued on the part of Mr. Shull. The result was that, on being asked by the court whether he would answer the questions, he refused again to do so and the court inquired of Mr. Boyd if he had the com- • mitment. Mr. Boyd replied, “We have two forms of orders.” It seems the court took these forms and adopted one after making some alterations. He subsequently, as we read the record, in the absence of Mr. Boyd, handed the altered one to the clerk with instructions to write out a judgment in accordance with the form then handed him and give a certified copy to the-sheriff. Before his arrest Mr. Shnll prepared his application to this court for a writ of habeas corpus and when he got it ready he telephoned to a deputy sheriff' to come and arrest him. This the deputy did and. straightway made him a “trusty” without taking him. to jail. He had been arrested before that “over the-telephone;” but doubted its technical efficacy. The-deputy met him by his arrangement at a drug store, went through the form of another arrest and after talking to him let him go. Two or three days later Mr. Shull heard from Jefferson City that his writ had been issued and that our marshal would be in St. Joseph at eight-thirty that evening. The record creates the impression that, expecting the marshal, he was taken into actual custody at about the time the mar'shal was due to arrive and taken to the jail where he remained for several hours because of the adventitious circumstances that the marshal came in on a belated train and they had miscalculated the time. There was testimony that'publicity was given to the affair through the newspapers but, in this connection, it also appears that Mr. Shull requested newspapers to make publication. The record shows the public knew of it and that Mr. Shull was annoyed and humiliated. He also testified that he considered the manner of respondent Boyd in propounding questions to him at the contempt hearing “right savage.”

There was an attempt to show on cross-examination that Mr. Shull courted his arrest, or expected to profit by it. We lay no deciding stress on it, but let it speak for itself, thus:

“Q. Mr. Shull, did you state to Mr. Hardcastle at the time he arrested you that that would make you circuit judge, the fact that you were arrested? A. No, for I never had any intention of being a candidate.
“Q. Did you state that to him in substance? A. If I did it would have been a pure joke; I have no recollection of anything of the kind hut I might have said it as a pure joke.
‘‘Q. Did you make that statement to the sheriff or .any of his deputies? A. I say no, no recollection of it.
“Q. Never made that statement? A. If you would call my attention to something — I might have .said it, it might have been a joke, if it was said it was & pure joke; anybody jokes about things — better do that than cry, but I want to tell you I was not in any frame of mind for joking and don’t think I did.”

The clerk of the court testified that when Mr. Boyd presented the form tp the court, it was examined, interlined and corrected by Judge Mosman, that is, it was then dictated to the clerk by the judge and rewritten. As said, as we read the record Mr. Boyd was not there at the time and had nothing to do with the contempt judgment or subsequent arrest except to hand up the form he had prepared at the court’s request, and to ask the questions outlined and to argue for their competency.

As in his petition Mr. Shull lays some stress on the fact he is an attorney, and as he appeared at this •or that time not only as a witness, but as an attorney for himself in the contempt proceedings, it may be well to go back a little and bring forward the record showing that he was proceeded against as a witness .and not as an attorney in the contempt proceeding. At one place he says: “I can keep them” (the tax bills) “in my pocket until that time, until we are in the -trial and he needs them as evidence. I don’t want to be jumped onto the witness stand in the matter.”

At another place this:

“Well, I was subpoenaed and accepted service of the subpoena; now if you announce ready for trial— whenever you announce ready for trial, I will be ready for business. That is all this subpoena requires me to be here for. ...
“The Court: "Well, I have not indicated — that yon can announce before knowing about the papers.
“Mr. Shull: Upon the trial of the cause to have me produce certain papers — now then, your honor, if they have a cause the first thing for them to do is to go forward with their case. If they have a case that is hanging here in court which they desire to try, they know that their witness is standing in the court room.
“Mr. Boyd (interrupting): Mr. Shull is nothing, but a witness.
“The Court: Do you want him as a witness'?
“Mr. Boyd: Tes, sir.
“The Court: Be sworn.” "
At another place this appears:
“I-am not here except under the process issued by this court. When I am called as a witness I will be here.
“The Court: They have a right, Mr. Shull, to know whether all papers are present before they make their announcement. They have the right to ask the question as to whether you have the paper; that I think — ■
“Mr. Shull: I don’t believe I ever saw a case where they have the right to demand—
“The Court: This is the time right now when they are ready to announce and it depends, as I understand it, upon the possession of the papers being with you — whether they can announce or not; under those circumstances they have, I think, the right to require an answer of you; whether you will produce the papers; I think that is their privilege.”

There were objections sustained to the introduction of testimony, but none of those rulings are now assigned for error except the exclusion of appellant’s testimony tending to show that Mr. Boyd prepared the sheriff’s return to the writ of habeas corpus issued by this court.

This court discharged Mr. Shull on the writ. [221 Mo. 623.]

Such is the case on the facts.

On such record we are of opinion the judgment must be affirmed. Because:

(a) As we gather it, In re Shull, 221 Mo. 623, is somewhat relied on by appellant as filling the office of an adjudication on the merits of the contempt case. We dispose of that contention in limine.

Two questions were put to us in that case, to-wit:

First: Piad Judge Mosman’s court jurisdiction to adjudge a contempt against Mr. Shull before the Keller-Roth case was actually on trial on the merits?

Second: Was the warrant of commitment under which Mr. Shull was incarcerated irregular in form or substance ?

We ruled in favor of petitioner on the last question, holding the commitment fatally defective in nar-' ration of facts, to-wit, the questions and answers upon which the judgment of the lower court for contempt was pronounced. This conclusion we put on a statute (Sec. 3884; R. S. 1909) reading: “Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstances of his offense shall be set forth in the order or warrant of commitment.” We held the warrant of commitment in judgment dealt .in mere conclusions relating to the offense and did not set forth its “particular circumstances.” ’We refused to pass upon the first question, but left it open, and open it is to this day. Hence,, In re Shull, supra, is not res adjudicata on the question of jurisdiction.

(b) Respondent suggests the demurrer to the evidence can stand on the narrow technicality that the abstract of record is silent on the contents of appellant’s reply to the answer. This contention hinges on the fact that the ree- or(j s]lows a reply was filed, bnt passes by its allegations sub silentio. Respondent argues that, for aught appearing here, the reply may have made .admissions fatal to appellant’s case as a matter of law, and, since error in a court of general jurisdiction will not lie presumed, it is open to legitimate inference that the reply was in terms warranting the demurrer to the evidence; But we decline to follow that lead. We have ruled that when a case is tried (as here) as if a reply is in, we would not take the averments of the answer on new matter as admitted. [Roden v. Helm, 192 Mo. 1. c. 83 et seq.] If respondent’s contention be sound he was entitled to a judgment on the pleadings at the outset. As he did not ask that, but took the hazard of a trial on the merits, it must be presumed he was not entitled to such judgment. If not ' at the outset, no more was he at the sequel. He must .stand or fall on the ruling made and that was on the ■evidence, not on the allegations of the reply.

The point is disallowed to respondent.

(c) It is assigned for error that evidence was excluded tending to show that Mr. Boyd prepared* or assisted in preparing the sheriff’s return to our writ of habeas corpus. Appellant insists that the effect of that act was to show an illegal participation in the imprisonment of Mr. Shull by preventing his regaining his liberty. The point is barren of substance.' There was no attempt to show either the terms of the return or that Mr. Boyd was actuated by malice or advised the sheriff contrary to what he knew the facts were. Speaking of the return, it is part of the records of this court and we have examined it. It is entirely neutral, shows precisely those things the statute requires an officer, holding a prisoner, to show when a writ of habeas corpus issues, to-wit, the authority and true cause of the'imprisonment or restraint “setting forth the same at large,” together with a copy of the warrant of commitment, etc. [R. S. 1909, sec. 2456.] Presumably the sheriff consulted Mr. Boyd as an attorney. He had the right to do so and to use his services in that capacity. He would be in hard lines indeed were it the law that he could not take legal advice. So, Mr. Boyd had the correlative right to be consulted and render service to the officer in making a return commanded both by our writ and the law.

The point is disallowed to appellant.

(d) Appellant’s main contention is that the court was without jurisdiction of him as a witness, prior to-an announcement of “ready,” to investigate the presence of the tax bills in court under the subpoena duces tecum, hence the judgment against him was coram non judice. It is agreed on all hands that if the court had jurisdiction then Mr. Boyd could not be guilty of aiding, abetting or participating in an attempt outside of the law to imprison Mr. Shull. The question has several angles, thus:

(1) That the court had power to issue a subpoena duces tecum to compel not only the appearance-of a witness but the production of papers as an essential precedent step-leading up to the trial and in preparation therefor, goes as of course. It is an ancient prerogative of courts, time-honored and by no means mildewed. That the court, before compelling parties to announce-for trial, may ascertain whether its process has been obeyed is not only common sense, but is a usage as old' as the existence of courts and is one needing no defense-. To this end witnesses are called prior to announcement for trial. To call for the presence of documents ordered produced 'by a subpoena duces tecum in nowise differs in essence and quality from a call of witnesses themselves. Says Lord' Ellenborough, Chief Justice of the King’s Bench, over a hundred years ago, in Amey v. Long, 9 East, 1. c. 484:

“The right to resort to means competent to compel the production of written, as well as oral, testimony, seems essential to the very existence and constitution of a court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them. And it is not possible to conceive that such courts should have immemorially continued to act upon both, without great and notorious impediments having occurred, if they had been furnished with no better means of obtaining written evidence than what the immediate custody and possession of the party who was interested in the production of it, or the voluntary favor of those in whose custody the required instruments might hap-_ pen to be, afforded.”

In a lofty conception of the administration of justice is there room for the pestiferous notion that a trial is a trap to catch a party litigant? Must he announce ready before he knows the process of the court has been obeyed, which said process, in turn, is the only means the law provides for getting ready? Is he to announce ready only to find in the thrall and throes of the trial, when too late to help himself, that papers essential to the hearing were not produced under a timely subpoena? Would a party in such fix be entitled to a continuance when he had not used diligence by way of inquiry in preparation for trial, or must he be cast as of course because he cannot go on, absent the papers? We all know it is the immemorial right of courts to see that their process has been obeyed as a preliminary to the actual trial itself. To that situation the maxim applies: Cursus curiae est lex curiae.

Indeed appellant, as we read the record, was willing to be sworn and to be questioned whether he had the papers. His position is that the power of the court •did not extend beyond the simple questions and answers: “Have you the papers?” “I have not.” “Did you have them when yon were served?” “No.” Those answers, he argued, were the excuses acquitting* him and shutting the door to further inquiry. But we •do not so understand the law. Under the unhappy and unusual circumstances of this case, neither the court nor the plaintiff in the Keller-Roth suit was required to rest satisfied with those answers. Nor did the answer sift the matter. Yea is yea, and nay is nay, to be sure, but the inquiry was still in this case: was “yea” true — was “ nay ” f alse ? What had he done with them ? When? It was not for the witness, but for the court, to judge of the validity of the excuse and before the court could judge he should hear and know. Beside that, and this is close home, the court was entitled to know if the papers ivere so hid or disposed of that a trial ivas impossible at that time.

Speaking of a subpoena duces tecum, Sharkey, J., in Chaplain v. Briscoe, 13 Miss. 1. c. 208, says:

“By the writ of subpoena duces tecum, the witness is compelled to produce all documents in possession, unless he have a reasonable excuse to the contrary, of the validity of which excuse the court, and not the witness, is to judge. [3 Stark, on Ev. 1721.] ”

It was ruled in Denton v. Erwin, 5 La. Ann. 18, that courts are bound to vindicate and maintain the sanctity of their judicial proceedings before they consider the merits of cases.

In Bull v. Loveland, the Supreme Court of Massachusetts, 27 Mass. 1. c. 14, speaking through Chief Justice Shaw, made this apposite pronouncement:

“There seems to be no difference in principle, between compelling a witness to produce a document in his possession, under a subpoena duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony, when the facts lie in his own knowledge.. It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it. [Amey v. Long, 9 East, 473; Corsen v. Dubois, 1 Holt’s N. P. R. 239.] But of such lawful or reasonable excuse the court at nisi prius, and not the witness, is to judge. And when the witness has the paper ready to produce, in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is-a question to the discretion of the court, under the circumstances of the case, whether the witness ought to produce, or is entitled to withhold the paper.”

(2) Jurisdiction, I think, includes, ex necessitate rei, the power to pronounce judgment and to award remedies provided by law not only finally uPo:a ^he cause on its merits, but in proceeclings and steps necessarily precedent and incident to the trial on tlie merits, in favor of or against persons (for instance witnesses) brought before the court in a manner sanctioned by law. [R. S. 1909, secs. 6369, 6370.] Tersely, jurisdiction is the authority of a court to hear and decide.

In this case the court had jurisdiction of the subject-matter of the Keller-Roth suit; it had jurisdiction of the parties to that suit; it had jurisdiction to issue the subpoena duces tecum; by the issue and service of that subpoena it acquired jurisdiction of Mr. Shull and his refusal to answer was an act in facie curiae. That by necessary implication it had jurisdiction to-decide questions incident' to the essential and usual steps in that suit preceding the trial, I think is without a shadow of doubt. The production of the papers was as essential as the production of the witness and for this court to say that the nisi prius court had no» right to inquire whether the papers were present or within reach or was compelled to take, without further examination, the answer of the witness that he did not have them as the be-all and end-all of the matter would be a lapse into judicial nonsense. The very object of any subpoena at all is to bring the witness “under the order and censure of the court.”

Furthermore, under such erroneous view of the law an attorney, who had invited a subpoena duces tecum (as here) and who knew he would thereby be required to produce papers instanter (as here) could, by the swift artifice of getting a little ahead of the officer’s service, toss them in a pigeonhole or coal scuttle or slip them to a friend and not only stand acquit under the formula “I have not got them,” but thereby he could impede the trial on one hand and thwart justice to the scandal of its administration on the other.

The inquiry in this instance did not go beyond reasonable bounds. There was need of one. The court exercised uncommon patience at a waste of time. Appellant’s acts were so inexcusable and regrettable that any commentary on those facts would weaken their effect.

Moreover, the maxim is: the incidents of the thing follow tacitly. [Beheret v. Myers, 240 Mo. 1. c. 79.] Assuming that the court had the power to bring in the papers, as we do, then an incident of that power would be to see if they had come (or could be had), .and sift and weigh any excuse offered. It has always been the rule that when a clear main power is granted "by the law, everything necessary to make it effectual to attain its principal end is necessarily implied. A grant of power is to be construed so as to include the authority to do all usual things necessary to accomplish the object so granted. In re Sanford, 236 Mo. 1. c. 692, may be consulted with profit on this head for our Brother Woodson has there marshaled the aufhorities on that rule of construction. The application of the principle is constant and multiform. [Church v. Hadley, 240 Mo. 1. c. 695, and cases cited; Ex parte Marmaduke, 91 Mo. 1. c. 251; State ex rel. v. Perkins, 139 Mo. 1. c. 118; Bank v. Bank, 244 Mo. 1. c. 574.]

The premises considered, we rule that information sought for by the questions was proper and within the jurisdiction of the court, that the witness could be lawfully required to give it, failing in which and thereby obstructing and impeding the proceedings he was subject to the pains and penalties prescribed for refusing to answer. [R. S. 1909, sec. 6372; Burns v. Superior Court, 140 Cal. 1.]

The mere fact that the warrant of commitment was irregular on its face in not complying with the statute, cannot be held to hark back and destroy the jurisdiction of the court to an extent making all participating in the hearing guilty of a trespass.

(3) We pass by those features of the case that bring Mr. Shull dangerously near the doctrine of the maxim volenti non fit injuria, though something could be said on that score. As pointed out by a brother, there is a faint tang or suggestion of Dodson and Fogg tactics in the record, as readers can see who recall the animated scene in their chambers, Freeman’s Court, Cornkill, in the year 1830, anent the celebrated Martha Bardell affair as reported by Dickens (Pick. Pap., Chap. 20) when (with an eye to damages) they invited both slander and assault from Samuel Pickwick. But putting that to one side and coming closer home, at least Mr. Shull was his own jailor, this by virtue of the law and the terms of the order of commitment. Speaking in figure, he had in his pocket the key to his own cell. He could release himself instantly by testifying.

We concede to appellant the general principle that all wrong-doers who aid, abet or participate in a trespass are liable, and pass by without discussing the question whether on the facts Mr. Boyd was in any just sense an aider, abettor or participator in issuing the irregular commitment within the doctrine of such cases as Clark v. Thompson, 160 Mo. 461, and Brueckner v. Frederick, 109 Mo. App. 614. Something might, be said on both sides of that proposition; for instance,, was not the mere fact that the warrant-was lacking in form and not regular to the ultimate gain of appellant? Suppose it had been regular, in what fix would Mr. Shull have been under the view we have taken?' In that view of it the irregularity complained of is a two.-eclged sword cutting both ways; for if the commitment bound him with bonds, the irreg%hlarity was-, a blessing in disguise, for it is the very thing that finally cut them in twain. We concede to appellant, the proposition that in an action for false imprisonment as a general rule want of probable cause and the-presence of a malicious motive are not necessarily in-volved (Boeger v. Langenberge, 97 Mo. 390); and come to the proposition whether under the peculiar record facts of this case Mr. Boyd, in the exercise of his rights, as an attorney at law representing his client Mrs. Keller, could he held liable in this action. That something-is due to the office and function of an attorney moving, in the usual professional orbit, so long as those functions are performed in good faith and have the honest purpose of protecting the interests of his client, is an accepted doctrine of the law, applicable here. [Campbell v. Brown, 2 Woods, 349.] In Peck v. Chouteau, 91 Mo. 138, there was a count for false imprisonment, and the above doctrine was laid down with the approval of Justice Bradley's exposition of the law in that regard in the Campbell-Brown case, to-wit: “If attorneys cannot act and advise freely and without constant fear of being- harassed by suits and actions, at law, parties could not obtain their legal rights.”' [p. 152.] In the Peck-Chouteau case the doctrine of Burnap v. Marsh, 13 Ill. 1. c. 538, to the same effect, i& also approved. [Q. v.] Tbe instant case is quite barren of any evidence of malice. That probable cause •existed is also apparent.

But we liave pursued tbe matter far and, tbe premises all in mind, nothing is left but to pronounce judgment wbicb we now do, viz., tbe demurrer was well ruled and tbe judgment, nisi, should be affirmed. It is so ordered.

All concur.


text:
    JAMES A. GIBSON, Curator of Estate of WILLIAM T. JONES, v. SAMUEL S. SHULL, Appellant.
    Division One,
    June 28, 1913.
    1. SETTING ASIDE DEED: Mental Incapacity: Questions of Fact: Deference to Chancellor. The Supreme Court is not bound by the findings of the chancellor to the effect that the grantor of a deed was, because of his long and continuous use of ardent spirits, mentally incapacitated to make a deed; hut where the testimony is oral, the chancellor who faces the witnesses is in a better position than is the Supreme Court to judge their credibility, and where their testimony is amply •sufficient to justify the finding that the grantor was not mencally capable of making the deed, the court, following its usual custom, will accept such finding, unless there be some other good reason for disturbing it.
    2. -: Necessary Plaintiff: Curator: Grantor of Unsound Mind: No Demurrer: Waiver. Title to the land of an unsound person is in him and not in his curator; and a suit to set aside a deed made by a grantor who has been adjudged a person of unsound mind by the probate court, on the ground that he was mentally incapacitated to make such deed, should be brought in his name, and not in the name of his curator; but where the petition shows on its face that the action is brought in the name of the curator personally, the defect of parties should be raised by demurrer, and if not so raised it is considered waived. It cannot be raised by an answer which is a general denial.
    3. -: Appointment of Curator: Record Not Preserved. Where the record of the probate court appointing the plaintiff curator of the estate of the person of unsound mind whose deed to land the suit seeks to have set aside, was admitted in evidence, the legality of the curator’s appointment will be assumed and the rightful action of the trial court will be presumed, if appellant omits from his abstract the record of the probate court which resulted in the curator’s appointment.
    4. -: -: Appointment After Execution of Deed. In a suit to set aside a deed on the ground that the grantor was of unsound mind, the record of the probate court is competent for the purpose of showing the due and legal appointment as curator of. the person who brings the suit on behalf of such mentally incapacitated person, notwithstanding the appointment was made a few days after the date of the alleged deed.
    5. --: Cause of Action: Sufficiency of Petition: In Statu Quo: Taking Advantage of Incapacity. A petition that states the grantor in a deed was of unsound mind at the time it was executed, that the deed was given without consideration and that it constitutes a cloud upon said grantor’s title, states a cause of action for annulling the deed. The allegation that the deed was without consideration and constitutes a cloud on the grantor’s title, states a cause of action for setting aside the deed, whether the grantor was of sound or unsound mind. Nor does the petition fail to state a cause of action because it nowhere states the plaintiff’s ability or willingness to place the defendant in stain quo or that defendant knew the grantor was insane and took advantage of him.
    6. -: -: Judgment: No Prayer to Restore Status Quo: Prayer for General Relief. Where a court of equity, by a bill which states a cause of action for setting aside a deed, acquires jurisdiction, it will not release it until full equity has been done, if the petition contains a prayer for general relief. In ■such case the court will hear the evidence and grant the relief to which plaintiff is entitled. So where the petition stated a cause of action for setting aside a deed, although it contained no allegation of a willingness or ability to restore the status quo, a judgment holding the grantor of unsound mind and requiring him to reimburse the grantee to the extent of the money he paid for the deed, with interest, was proper, and will be upheld, where authorized by the evidence.
    7. --: Grantor Non Compos Mentis. The deed of a grantor of unsound mind at the time it was made, may be avoided, though he had not at that time been adjudged of unsound mind.
    5. -: Agent: Fiduciary Relation: Burden. Where an agent buys land from his principal a confidential relation exists, which places upon the agent the burden of showing the transaction was equitable and fair.

      Appeal from Buchanan Circuit Court. — Hon. Luden J. Eastin, Judge.
    Affirmed.

      Warren Rogers for appellant.
    (1) The petition filed in this case is wholly bad. The curator seeks to sue in his own name as such. That he cannot do. Reed v. Wilson, 13 Mo. 28; Koenig v. Union Depot Co., 194 Mo. 572; Webb v. Hayes, 166 Mo. 50. (2)‘ There was no appointment, in law, of a curator of Jones. “A probate court shall have no jurisdiction to inquire into the sanity of a person who owns no property.” R. S. 1909, sec. 474. No part of the record of the probate court shows that that court found Jones was owner of any property or that any such showing was made to the probate court. The petition, if any was filed, on which a hearing was based, is not shown by any record in evidence. There was no legal appointment. (3) The probate record shows that Jones was not in that court at the inquest. That record, also, fails to show that he was “notified of the proceeding” in that court against him looking to the ascertainment of his condition, giving him time to defend himself, or in any way setting a day for him to-appear in said matter in said court. This failure may have been attempted to be excused by the recital in the record-that: “The said William T. Jones, being unable to appear in open court,” etc. The recital aforesaid follows the language of the statute (Sec. 476,. R. S. 1909), but that clause of the statute is unconstitutional. Hunt v. Searcy, 167 Mo. 158. (4) The petition fails to state facts sufficient to constitute a cause-, of action in that it nowhere appears from the petition that there is an ability and willingness on the part of' plaintiff to place the defendant in statu quo, or that the defendant knew that the ward was insane at the time of the transaction in question and took advantage of him. Jamison v. Culligan, 151 Mo. 410; Wells v. Mutual Assn., 126 Mo. 630; Banking Co. v. Loomis, 140 Mo. App. 73; Rhoads v. Fuller, 139 Mo. 179. (5) It was error for the court to permit the introduction of the probate court proceedings held several days after the land had been deeded to appellant, for the purpose of showing or bearing on the condition of Jones’s mind at the time of such sale or any other time. 'Rhoads v. Fuller, 139 Mo. 179.

      E. M. Swartz and Myiton & Parhinson for respondent.
    (1) Technically, the title of the cause should have been Jones, by his curator, plaintiff, but the error appeared on the face of the petition and the defect was waived when appellant answered. He could only have raised this question by demurrer. Baxter v. Transit Co., 198 Mo. 1; Taylor v. Pullen, 152 Mo. 434; Jones v. Steele, 36 Mo. 324. (2) The probate records were introduced but appellant failed to incorporate them in the bill of exceptions. (3) The petition does state a cause of action, that the deed was without consideration. That Jones was of unsound mind, and incapable of managing his affairs is assumed, in the absence of demurrer, that defendant knew his condition, and after verdict it is implied, and when he failed to demur, he waived the insufficiency of the allegation. Lycett v. Wolff, 45 Mo. App. 489. Furthermore, the evidence disclosed that appellant did not deal fairly; sufficiently so to draw the inference that appellant was bound to know that he was dealing with an imbecile. Besides, the -deed was without consideration and so found by the court. The judgment simply recites that Shull paid to Jones $216.50, but not on the conveyance,, and requires that said Shull be reimbursed his outlay. Shull had taken two deeds from Jones to the same land and had advanced him money from time to time. The respondent is bound by the judgment to repay the $216.50, although the pleadings do not tender it back nor demand reimbursement; but appellant cannot complain because it places him in statu quo. The judgment sustains the allegations in the petition... The respondent admits that under the authorities of this State a deed from a non compos, not under guardianship, is voidable only, especially where a good and fair price is paid. 22 Cyc. 1171; Lock v. Brecht, 166 Mo. 242; Rhodes v. Fuller, 139 Mo. 179;. Younger v. Skinner, 14 N. J. Eq. 389. Surely the appellant cannot claim to come within the above rule in this case. The transaction shows that no man of ordinary prudence would have engaged in it. It was, therefore, of no validity, and it was unnecessary to tender back what had been received. Halley v. Troester, 72 Mo. 73.
   GRAVES, J.

Plaintiff is the duly qualified curator of "William T. Jones, who was declared to be of unsound mind by the probate court of Buchanan county in July,'1909. Plaintiff, as curator, sues to have set aside a certain deed made by Jones to Shull for an undivided three-fourths interest in forty acres of land in Buchanan county on the ground, as stated in the petition:

‘ ‘ That at the time of said conveyance the said William T. Jones was of unsound mind and incapable of contracting and incapable of managing his affairs; that there was no consideration for said deed; that Samuel S. Shull has placed said deed of record in book 385 at page 194 in the Recorder’s office of Buchanan county, Missouri, and the same now constitutes a cloud upon the title of curator’s said ward.”

The answer was a general denial.

There was proof pro and con on the mental condition of Jones at the date of the deed, as well as of circumstances tending to show that defendant took ■ advantage of Jones’s mental condition, a condition superinduced by long and . , . ., T. continuous use of ardent spirits. It will suffice to say that the proof upon the question of mental condition is such that we will not dispute the judgment of the chancellor nisi, who faced the witnesses, and was in a better position than are we to judge-the credit to be given to them. The evidence will amply justify the finding that Jones was not mentally capable of making a deed,' when this deed was executed, and whilst we are not bound by the finding below this court does not usually disturb such findings unless we can point to some good reason therefor. Under the facts we do not feel like this finding and judgment should be disturbed, unless some of the more technical reasons assigned by defendant are found to be of substantial force.

This shortly states the case, leaving for the opinion a recital of such pertinent facts as may be required for the disposition of the points suggested supra. These points we take in their order.

I. Respondent seriously contends that we should affirm this judgment because the defendant has not presented to us all the testimony in the case, but has presented only garbled excerpts thereof. In equity cases our rule requires a full presentation of the evidence to this court for the . very good reason that m such case the trial here is to the effect of a trial de novo. In other words, whilst we look upon the finding in the lower court as persuasive, we do not allow it to be binding, unless our minds run with the chancellor below on the facts, or unless the facts are conflicting and close and we yield to his judgment because of his better position to judge of the credibility of the respective witnesses. In this case we yield to the judgment of the chancellor trying it below upon the facts pro and con on the question of mental condition at the date this alleged deed was made. Upon this question the court found:

“The court finds and decrees that the said William T. Jones was of unsound mind, incapable of contracting and incapacitated from managing his affairs at the time of the execution of the purported conveyance dated June 10,1909, whereby he purported to convey to Samuel S. Shull, the defendant, the undivided three-fourths interest of land of the northeast quarter of the northwest quarter of section twelve, township fifty-six, range thirty-six, Buchanan county, Missouri, which said conveyance is of record in the Recorder’s office of Buchanan county, Missouri, in Book 385 at page 194.”

We are not prepared to say, however, that the evidence is not sufficiently abstracted for us to place ourselves in the position of the chancellor, nisi, if we deemed it necessary to review the facts in full, and declare a different conclusion from those facts. Such being the status of the abstract we overrule this contention of the respondent, and will take up the objections of the defendant to this finding and judgment.

II. First we are met with the proposition that the suit is in the name of the curator personally, and for that reason the judgment cannot stand. The style of the case is indicated by the ** caption at the beginning of the opinion. In the petition we find this statement:

“Now at this day comes James A. Gibson, curator of the estate of William T. Jones, of unsound mind, and states that heretofore, to-wit on the — day of July, 1909, his ward, said William T. Jones, was duly and legally declared to be of unsound mind and incapable of managing his affairs, by the probate court of Buchanan county, Missouri; that thereupon the petitioner James A. Gibson, was, by the probate court of said, county, duly and legally appointed curator of the estate of said William T. Jones, and the said James A. Gibson thereupon, on said-day of July, 1909, did then and there duly qualify as such curator and enter upon the discharge of his duties as such, and now is duly acting in that capacity.”

Defendant in the brief says • that the petition is wholly bad, because the curator sues in his own name, rather than in the name of his ward. It is true that the title to property is in the ward and not in the curator. It is also true that the action should be in the name of the ward, rather than that of the curator. [Webb v. Hayden, 166 Mo. 1. c. 50, and cases cited; Judson v. Walker, 155 Mo. 166, and cases cited.]

In this case, however, there is another matter of moment. • If there was a defect in the petition in this regard it was one which was patent upon the face thereof, t and such question is waived unless there is a special plea thereto. [Baxter v. Transit Co., 198 Mo. 1. c. 8.] . A. general denial for an answer, as in the case here, does not preserve the point. In the Baxter case, supra, this court in commenting upon the position of Mr. Pomeroy on the code practice (Pomeroy Code Rem., 4 Ed.), and after stating the position ■of that author, thus speaks of and quotes from the author :

“The learned law-writer, although he regards the •Code as in itself a complete system depending for nothing upon the common law, yet . . . recognizes fully . . . the essential difference between matters that may be pleaded to abate the suit, and matters pleaded to defeat the cause of action, the only difference between the Code and the common law in respect to them being the manner and the order in which they .are pleaded and the issues tried. And on pages 813-14, he says: ‘The non-joinder of necessary parties cannot be proven under the general denial . . . The defense that the plaintiff is not the real party in interest is new matter; . . . and in an action by an executor or administrator, the general denial does not put in issue the plaintiff’s title to sue.’ ”

So we say in this case, the general denial in the answer did not place in issue the plaintiff’s title to sue. It could have and should have been raised by demurrer, and not being so raised was waived. It is also true that á next friend has no title to the property involved in the suit. In Taylor v. Pullen, 152 Mo. 1. c. 439, Gantt, P. J., says:

“In Rogers v. Marsh, 73 Mo. 1. c. 70, it was ruled that this objection was in the nature of an affirmative defense and not available under a mere general denial. In Clowers v. Railroad, 21 Mo. App. 1. c. 216, Judge Rombauer commenting on this last mentioned case, said: ‘It was held that this objection is one for defect of parties plaintiff, and is waived under the statute, unless saved by special demurrer, or by answer. This last decision is not only in conformity with the more liberal views marking’ recent decisions, which disregarded purely technical objections in arriving- at the true merits of a controversy, but is furthermore the last controlling decision of our Supreme Court. ’ ’

"We are therefore constrained to hold that the defendant, by answering the petition and not specially pleading this defect in the petition, has waived the point.

III. The record of the probate court of Buchanan county showing the appointment of Gibson as curator of Jones appears to have been introduced in evidence, but the appellant failed to incorporate it bill of exceptions. Appellant now raises the question that there was no legal appointment. This is a barren .contention for two reasons: (1) because the appellant has waived the question as held in our paragraph two; and (2) because he has seen fit to bring a record here which shows that these records were introduced in evidence, but does not bring the records themselves. Under such circumstances the rightful action of the court nisi will be presumed.

IV. Notwithstanding the fact that the defendant has failed to abstract the probate court records, he further insists that the trial court erred in permitting them to be introduced. This point is covered by the preceding paragraph and we will not go further. The record was at least competent to show the due and legal appointment of Gibson as curator, and this is true notwithstanding the fact that the appointment was made a few days after the date of the alleged deed

V. It is next urged that the petition fails to state a cause of action for reasons other than the fact that the suit is brought in the name of Gibson, curator, rather than in the name of Jones. This - point- is thus made by appellant:

“The petition fails to state facts sufficient to constitute a cause of action in that it nowhere appears from the petition that there is an ability and willingness on the part of plaintiff to place the defendant in statu quo, or that the defendant knew that the ward was insane at the time of the transaction in question and took advantage of him, hence defendant’s objection on that ground to the introduction of any evidence in the case should have been sustained.”

It occurs to us that the defendant is confounding’ the pleadings with the proof in making this challenge as against the petition. The petition does state a cause ■of action in equity. It states that Jones was of unsound mind and that the deed was given without consideration, and is a cloud upon Jones’s title. That the petition states a cause of action in equity cannot be questioned. Courts of equity may set aside deeds for want of consideration, when such instrument creates a cloud upon the title. This is true whether the grantor be of sound or unsound mind. It therefore appears that the petition is not defective in so far as stating a cause of action is concerned. The real question is as to whether the judgment can be sustained under the petition. This question we take next.

VI. We have heretofore set out a portion of the judgment, in which it was found that Jones was mentally incompetent to make a deed at the time the deed in question was made. In addition the judgment further found and decreed:

“The court finds that said purported conveyance of record as aforesaid is a cloud upon the title of the said William T. Jones and the same is by the court declared invalid and for naught held and is so adjudged, cancelled and removed, so as to be wholly ineffective and constitute no cloud whatever on said title.
' “The court further finds that upon the execution of said purported conveyance by the said William T. Jones the said Samuel S. Shull defendant, paid to the said William T. Jones on the-day of June, 1909, the sum of $216.50, and it is further ordered and decreed by the court that the said plaintiff shall reimburse the said Samuel S, Shull the said sum of $216.50, with interest at the rate of six per cent per annum thereon from and after the 16th day of June, 1909, by the payment of said sum and interest to the clerk of this court to the use of the said Samuel S. Shull.
“Wherefore the court finds for the plaintiff as ■aforesaid with costs of suit and have execution thereof.”

The evidence clearly discloses, even upon defendant’s theory, that Jones made Shull his agent to sell this property; that whilst that relation existed, Shull claims to have bought the property, for a price which the trial court- could readily find to have been inadequate. In other words, a confidential relationship, i. e., that of principal and agent is shown, and this of itself placed the burden upon Shull to show that the deal between him and his client was equitable and fair. Of this the trial court had'the right to'judge, if the pleadings permitted such judgment, and this to our mind is the serious question in the case. Jones had not been declared non compos at the date of the deed. But, if as a fact he was non compos, his deed could have been avoided. The petition it is true does not offer to place Shull in statu quo, but the judgment does so place him. The petition, being one in equity, prays for general relief. It says in the prayer:

“Wherefore, plaintiff prays the court to set aside, said deed and to hold the same for naught, and for such other orders and judgments in the premises as; to the court shall seem just and proper."

The real question, therefore, in this case is', whether or not, under this petition and its prayer for general relief, the court had the right to enter the judgment which was entered. This judgment indicated that the court found as a matter of fact that Shull dealt with a person non compos, and that on such deal he paid out $216.50, for which he should be reimbursed. Such finding was amply authorized by the evidence, but was it proper under the petition? We think so. When courts of equity, by a bill properly framed, acquire jurisdiction of a cause, such jurisdiction will not be released until full equity has been done, if there be a prayer for general relief, as there is in the instant case. This is true, although the plaintiff asks for some kind of relief which cannot be granted. In such case the court will hear the facts and grant the relief to which, he may be entitled. [Holland v. Anderson et al., 38 Mo. 1. c. 58; Phillips v. Jackson, 240 Mo. 1. c. 336.]

Following this time-honored rule in equity cases, we are impressed that the judgment here is within the purview of the pleadings, and, as we have held that we will not disturb it upon the facts, it must stand.

These paragraphs cover the substantial objections of the defendant. There are others which we deem it unnecessary to discuss. From it all we are con-' vinced that the trial court reached a righteous judgment in this case, and that it should be affirmed. It is so ordered.

All concur.