author: ROY, C.

text:
    THE STATE ex rel. J. F. FURBY, Collector, v. CONTINENTAL ZINC COMPANY, Appellant.
    Division Two,
    July 27, 1917.
    1. CITY: Current Expenses: Payment of Debts of Prior Years. Section 12 of article 10 of the Constitution gives to a city authority to levy the annual maximum rate, of taxes for city purposes and to spend it all, as it see? proper, in paying its current expenses of all hinds, and it is beyond the power of the Legislature to divert those current funds to the payment of debts of prior years.
    2. -:-: -: Extra Tax. When a city contracts a valid debt for any year, then spends for other purposes its current funds for that year, leaving such debt unpaid, it has the power, if authorized by a two-third vote, to levy a tax in excess of the annual rate for city purposes, in order to pay that debt.
    3. -: New Debt. Where by way of a compromise of a judgment against a city for debts due a water company for hydrant rentals, bonds were voted by the people to pay the amount agreed upon, the debt evidenced by the bonds, if not a new debt, was a very different debt from that evidenced by the judgment.
    4. -: Sufficiency of Tax Bill: Special Tax. The law does not require that the back tax bill shall state a full and complete cause of action for the tax. It is not necessary to its validity that it show with specific clearness the purposes for which a “special tax” and a “sewer fund tax” were levied. The real matter for consideration is whether the tax imposed under section 12 of article 10 of the Constitution is included in the term “special” tax used in section 11.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    Affirmed,

      Spencer & Grayston for appellant.
    (1) The so-called back tax bill was not sufficient as to the heads “Special” and “Sewer Fund,” to constitute prima-facie evidence. R. S. 1909, see. 11498. . (2) The city of Carterville, having less than 10,000 inhabitants, was confined to a levy of fifty cents on the one hundred dollars for all purposes mentioned as indicated in the so-called back tax bill. Waterworks Co. v. Lamar, 128 Mo. 188; Constitution, art. 10, sec. 11. (3) The only provision for a city of less than 10,000 inhabitants levying a tax rate in excess of fifty cents on one hundred dollars’ valuation is where the people vote for a new indebtedness. Waterworks Co. v. Lamar, 128 Mo. 188; Constitution, art. 10, sec. 12; R. S. 1909, secs. 9544-9546. (4) The hydrant rental for which a “special” or additional levy was made should have been paid out of general revenues, that is funds arising out of the fifty-cexit levy. Water Works Co. v. Carterville, 142 Mo. 106, 153 Mo. 132. (5) Submitting a bond proposition to the people for their approval, where the bonds are to be used to pay an old debt, does not authorize the city to make a levy in addition to the rate limited by section 11, article 10, Constitution, for the purpose of paying the bonds. Const., art. 10, sec. 12; R. S. 1909, sec. 9357.

      Allen McReynolds and Baird & Gass for respondent.
    (1) The tax bill was in proper form and sufficient. R. S. 1909, sec. 11498; Stanberry v. Jordan, 145 Mo. 381. It is not necessary to set out detailed information in the tax bill as to each classification. It is sufficient to classify each tax under some appropriate head. State ex rel. v. Burr, 143 Mo. 209. The duly certified tax bill was prima-facie evidence that the amount claimed was ‘ ‘ just and correct.” State ex rel. v. Ross, 93 Mo. 126; State ex rel. v. Maloney, 113 Mo. 370. And when the tax bill is introduced, it then devolves upon the defendant to show any omissions, insufficiencies, or defenses. State ex rel. v. Fullerton, 143 Mo. 686; State ex rel. v. Cunningham, 153 Mo.. 642; State ex rel. v. Vogelsang, 183 Mo. 22. (2) The city had the right with the assent of two-thirds of the legal voters to vote bonds for the purpose of paying the indebtedness represented by a judgment against it. Sec. 9355, R. S. 1909; See. 12, art. 10, Constitution. (3) Whenever the city was confronted by a judgment debt it had the right to arrange for the payment of that debt by a bond issue. Sec. 9355, R. S. 1909. Such' arrangement was valid so long as the indebtedness did not exceed the five per cent limit and was incurred with the consent of two-thirds of the voters. Sec. 9355, R. S. 1909; Sec. 12, art. 10, Constitution. Whenever two-thirds of the voters consented to a funding of the judgment debt in such a manner, the source of that debt became immaterial. (4) Sec. 9355, R. S. 1909, is constitutional and valid. The interpretation of this section and section 12 of article 10 of the Constitution urged by appellant is not sound and is not supported by decisions. Waterworks. Co. w Lamar, 128 Mo. 188; State ex rel. v. Wabash Ry. Co., 169 Mo. 563; Evans v. McFarland, 186 Mo. 724; State ex rel. v. Thompson, 211 Mo. 64; Trust Co. v. Pagensticker, 221 Mo. 128.
   ROY, C.

This is a suit for city taxes on the southeast fourth of the northwest quarter of section 21, township 28, range 32, in Carterville. There was a judgment for plaintiff, and defendant has appealed to this court, constitutional questions being involved.

In 1889 the city of Carterville, then and now a city of the fourth class and having a population over a thousand and less than ten thousand, entered into a contract with one O’Neil, by which it agreed to pay him for hydrant rentals for its supply of water, at the rate of fifty dollars a year for each hydrant. That contract was approved by a two-thirds vote at an election held for that purpose, but there was nothing in those proceedings authorizing the city to become indebted beyond its annual income for any one year or to levy a special tax to pay the hydrant rentals.

O’Neil assigned his contract and the waterworks to the Webb City & Carterville Waterworks Company, which continued to supply the city with waier under the contract.

The hydrant rentals went unpaid as follows:

For last half of the year 1892 ................. $1025.00

For 1893 ................................... 2356.75

For first three-fourths of 1894 ............... 2025.00

$5,406.75

The waterworks company sued for that amount. The trial court held that the city had no power to become indebted for any year beyond its annual revenues without being so authorized by a two-thirds vote, and that the city had not been so authorized. It further held that the city, after paying the ordinary current expenses of the city government for each of those years, had no funds with which to pay the hydrant rentals. It gave judgment fór defendant in that case.

On appeal to this court that judgment was reversed and the cause remanded. See Waterworks Co. v. Carter-ville, 142 Mo. 101, where all the facts including'the judgment of the trial court are set out. This court, in effect, held that the city could not by the proceedings above mentioned become indebted in any year beyond its annual revenues. It further held that such annual revenues should have been applied first to the payment of the salaries of the city officers and the expenses of policing the city, and that all the balance of each year’s revenues should have been applied in payment of the hydrant rentals for each year respectively.

The trial court, in accordance with that opinion, took an account and rendered judgment in favor of the plaintiff therein for $4908.06. On appeal that judgment was affirmed. [See 153 Mo. 128.]

Following that judgment, there was a compromise between the parties, the exact terms of which are not shown. In pursuance of that compromise bonds were issued to pay that judgment, the proposition to issue the bonds being approved by a two-thirds vote at an election held for that purpose.

The taxes herein sued for are for the years 1905 to 1909 inclusive as follows:

Total for general fund for those years.........$351.00

Total for special fund for those years.......... 177.00

Total for sewer fund for 1907 to 1900 inclusive 182.04

$710.04

as shown by the back tax bill filed with the petition and put in evidence by the plaintiff.

The taxes for the general fund were levied at the full annual rate of fifty cents on the hundred dollars’ valuation.

On the trial of this case the plaintiff put in evidence the back tax bill showing the above taxes and rested. The defendant objected to the items of taxes under the heads “special” and “sewer fund.” The grounds of the objection to the special taxes and sewer fund taxes was that the back tax bill did not show for what purpose said taxes were being levied and collected.

In connection with the trial the following agreements were made:

“It is agreed that the items in the column headed “Special” were levied to pay interest on and to create a sinking fund to pay the principal of bonds issued-for the purpose of paying a judgment in favor of the Webb City and Carterville Water Company based upon a compromise of the indebtedness claimed to be due for hydrant rental at a yearly rate payable quarterly and which was in default before the judgment was obtained, and consequently before the bonds were issued and that the bonds were issued in an amount equal to the judgment and this is to include the item of $18.50, which plaintiff states was levied for the same purpose for the year 1907.
“By this agreed statement the defendant does not waive any objection to the petition or to the tax bill.”

Also the following:

“In addition to the facts heretofore agreed upon, it is agreed that the judgment for hydrant rental mentioned in the first agreed statement of facts, resulted from the litigation reported in Water Works Company v. Carterville, 142 Mo. 101, and again in 153 Mo. 128; that the hydrant rental ordinance or contract referred to in 142 Mo. was submitted to the voters of the city of Carterville for ratification, as stated in that opinion, and that the same was ratified; that in the ordinance so submitted for ratification, no provision was made for the levy of a special tax to pay the hydrant rental therein provided for; that the ballot used in said election is not procurable; that after the affirmance of the judgment in favor of said Water Company by the Supreme Court in the opinion in 153 Mo., the city held an election tó vote bonds for the purpose of paying off the judgment, the exact amount of which was then determined by a compromise, the Water Company making some concessions as to the amount; that the question of issuing the bonds for the purpose of paying the judgment was submitted to the voters and the required majority voted in favor of the issuance of said bonds; that the levy of taxes was thereafter made for the purpose of paying the interest and creating a sinking fund for the payment of said bonds; that defendant concedes that in the bond election the forms of the law were complied with, its objection to the levy being that the voting of these bo,nds for the purpose of paying an existing judgment debt was not an increase of the indebtedness of the city such as to authorize the levying of a tax in addition to the taxes provided for general purposes in section 11, article 10, of the Missouri Constitution, or that the same was not an increase of the indebtedness ,of the city such as is contemplated by section 12 of said article.
“It is understood that by the making of this agreed statement, the defendant does not waive its objection to the sufficiency of the petition, or to the sufficiency and competency of the tax bill in evidence. Defendant expressly reserves the right to urge those objections.”

The judgment was for the full amount of said taxes.

I. Appellant contends that the city was without power to levy any tax to pay the bonds and the interest thereon beyond the levy of the annual rate of fifty cents on the hundred dollars’ valuation. The substance of its contention is that the debt of the city was incurred without any two-thirds vote authorizing the incurring of a debt beyond the annual revenues of the city, and that the debt, being thus incurred without such vote, could not later be validated by the vote in pursuance of the compromise. In other words, that the vote must precede the creation of the debt, and can not validate a debt already created.

Section 12 of article 10 of our State Constitution provides two ways in which a city may become indebted;

1. It may, during any year, without any vote of the people, incur debts to an amount not exceeding the revenue provided for such year.

2. By a two-thirds vote it may become indebted in amount not exceeding five per cent, of its assessed valuation.

The city, under the first head above mentioned, clearly had power to contract for its supply of water to such extent for each year as could be paid for out of its annual revenue for such year.

It seems that the city, .after contracting for its water supply, spent its revenues for other things and left the water bills unpaid. The water company sued, and after thorough litigation, the judgment was recovered and affirmed. It was so affirmed on the theory that the city had made its contract in pursuance of the first power above mentioned under the Constitution. The question then arises, When a city contracts for anything (water for instance) within the limits of its annual revehue, then spends that revenue for other things, must it pay- the water bill out of the general funds realized by the levy of the “annual rate” for a subsequent year or years, or can it levy a special tax for the purpose.

Prior to 1875 there was no constitutional limitation on the power of a county or city to incur debts. Eevised Statutes 1835, page 153, section 7, provided: “All county warrants shall be received in payment of taxes, fines, penalties and forfeitures accruing to the county.” In State ex rel. v. Payne, 151 Mo. 663, it was held that such statute was invalidated by the Constitution of 1875, and that the current revenues of a county could not be diverted to the payment of warrants of previous years until after all current expenses of the county for the years were paid. It was there said if such division of the county revenues should be allowed, the current bills would go unpaid and there would result “a complete suspension of tíre business affairs of a county.”

The General Statutes of 1865, page 650, section 77, provided: “Whenever an execution, issued out of any court of record in this State against any incorporated town or city, shall be returned unsatisfied, in whole or in part, for want of property whereon to levy, such court, at the return term or any subsequent term thereof, may, by writ of mandamus, order and compel the chief officer, trustees, council and all other proper officers of such city or town, to levy, assess and collect a special tax to pay such execution and all costs.”

That section, as since amended, is section 2254 of our Revised Statutes, which reads:

“Whenever an execution, issued out of any court of record in this State, against any incorporated town or city, shall be returned unsatisfied, in whole or in part, for want of property whereon to levy, such court at the return term or any subsequent term thereof shall, by writ of mandamus, order and compel the chief officer, trustees, council and all other proper officers of such city or town, to levy, assess and collect the annual taxes in such town or city from year to year, as occasion may require, within the constitutional limits, and order the same, when collected by the proper officer or officers, to be paid to the execution creditor, his agent or assigns, except such amount as may be necessary to pay the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney and a reasonable police force of any such town or city.”

The constitutionality of that statute has never been discussed in any decided case. But, if the Legislature cannot compel a county to pay warrants of prior years out of its current revenues leaving current bills unpaid, how can it compel a city to devote all its current revenues, except the part necessary to pay salaries of its officers and the police, in payment of old debts? How long could a city exist and perform its functions as such under such conditions?

We hold that the above-mentioned sections of our State Constitution are intended to give the city authority to levy the annual rate for city purposes and to spend it all if it sees proper, in paying its current expenses of all kinds, and that it is beyond the power of the Legislature to divert those current funds to the payment of debts of any kind of prior years.

We further hold that when a city contracts a valid debt for current expenses in any year, then spends for other purposes its current funds for that year, leaving such debt unpaid, the city has the power to levy a tax in excess of the annual rate for city purposes, in order to pay that debt. The power of the city is coextensive with the rights of a creditor. The creditor has the right to insist that his valid claims shall be paid. He is not entitled to be paid out of the current funds raised by the levy of the annual rate for city purposes, for that would be to take away the city’s means of existence. It results that the creditor has the right to demand that the debt be paid out of the current funds if the city has enough of it left over after payment of current expenses, or by a levy of a tax over and above such annual rate. The facts in this case show that the city levied its full annual rate, and, in addition thereto, levied this special tax to pay these bonds. It was within its right and duty in so doing.

II. In Conner v. Nevada, 188 Mo. 148, it was held that the constitutional limitations on the indebtedness of cities do not relieve the city from liability in actions ex delicto.

In State ex rel. v. City of Neosho, 203 Mo. l. c. 82, it was said:

“The contract in question provides for the creation of a special and particular fund without resorting to the power of public taxation; and the waterworks company and Smith, its assignee, may look alone to that fund in the first instance — what might happen if the city tortiously misappropriated and dissipated that fund, we need not inquire. Such acts might (or might not) render the city, liable as for a tort; and the liability for torts is not one within the constitutional provision under consideration. [Conner v. City of Nevada, 188 Mo. 148.] But that question is not here, and, therefore, is not decided.”

Now in this case the city, as above .stated, after making the contract for water, spent the funds applicable to the payment for that water for other purposes. It may be that it was liable ex delicto for such misappropriation. We will not decide that question. But it should be remembered that, according to the agreed facts, the city and the water company settled all these perplexing questions by the compromise under which the bonds were issued, such issue having been authorized by a two-thirds vote at an election called for -that purpose. If the debt evidenced by the bonds was not a new debt, it was certainly a very different debt from that evidenced by the judgment for the payment of which they were issued.

III. Appellant insists that the back tax bill does not show with sufficient clearness the purpose for which the “special” taxes and the taxes marked “sewer fund” were levied.

In Lamar W. & E. L. Co. v. City of Lamar, 128 Mo. 188, l. c. 215, it was said:

“The tax authorized by section 12 is not therein called a ‘special’ tax, but an ‘annual tax.’ Mere names, however, are of slight weight in such an investigation. The real inquiry should be whether a tax imposed under section 12 can, upon due consideration of the practical ends in view in these sections, "be held to be included by the term 'special’ tax in section 11, within the intent of the Constitution.”

Taxes, like roses, are about as sweet under one name as another. The law does not require that the back tax bill shall state a full and complete cause of action for the taxes.

The judgment is affirmed.

White, C., concurs.

PER CURIAM: The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    PAUL TURNBOW, By His Next Friend, ORAH TURNBOW, Appellant, v. R. J. DUNHAM et al., Receivers of METROPOLITAN STREET RAILWAY COMPANY.
    Division Two,
    July 27, 1917.
    1. NEGLIGENCE: Child Near Track: Ordinary Care Towards Persons. An instruction telling the jury that “a motorman in charge of a street car is only required to exercise towards persons near its tracks ordinary care to prevent injury to persons if near the track” would not by using the word “persons” cause the jury to infer that a three-year-old child is to be considered as an adult, and is not error.
    2. -: -: Precaution After Danger Seen. An instruction which tells the jury that before they can find for plaintiff they must find that defendant’s motorman was guilty of negligence in not taking such precautions as a reasonably prudent person would have done under the same circumstances, to avoid injuring the three-year-old child, in the street between the curb and track, “after the motorman saw him in a position of danger from being run over by the rear wheels of the car,” is erroneous. The rear wheels having run over the child’s feet, the instruction relieved defendant of liability if the motorman failed to see him in a position of danger from being run over by them, whether such failure to see was or was not the result of the motorman’s negligence.

      3. -: -: Use of Word Ban. An instruction that assumed that the three-year-old child “ran” towards the car as it passed, where there is no evidence that he ran, while not reversible error, would be more technically accurate if it used the word “move.”
    4. -:-: Contest Between Persons of Equal Standing. Where the rear wheels of a street car ran over the feet of a three-year-old child, and he sues for damages, an instruction telling the jury that the case should be “considered the same as if it was a contest between two persons of equal standing in the community” should not be given, because it is apt to mislead the jury into believing that the defendant owed to the child no greater duty to look out for its safety than it owed to an adult under like circumstances.
    5. -: Unavoidable Accident: Instruction. Where the issue raised by the facts is simply one of negligence vel non of the motorman, and there is no evidence of any accident within the proper meaning Of the term, an instruction telling the jury that if they believe and find from the evidence that plaintiff’s injuries were “due to an unavoidable accident and not to any negligence of the motorman,” should not be given.
    6. -: Approximate Cause: Undefined. The use of the words “approximate cause” in an instruction, without defining or explaining the term, tends to mystify, rather than to aid the jury in reaching a correct conclusion.
    7. -: Child in Street: Demurrer to Evidence. When a demurrer to the evidence is considered, plaintiff is entitled to have it viewed in its most favorable light; and where there is evidence tending to show that a child less than three years of age, unattended, stepped from the curb into the street as the street car slowly approached; that as the front of the car passed him he was standing five feet from the track, to which position he had approached from the curb while the car had traveled twenty feet; that the motorman saw him and watched him only until the front trucks had passed beyond the position of the child, and then ceased watching him and started to increase the speed, a demurrer to the plaintiff’s case of damages for negligence should not be given; for evidently after the front trucks passed, the child moved a step or two closer to the car and placed his hands against the side thereof (as some of the evidence tended to show) and was thrown off his feet and fell in such a way that his feet became entangled under the rear wheels, which ran over them. The motorman’s duty of exercising ordinary care for the child’s safety was not fully performed by watching the child only until danger from the front trucks was passed.
    8. -: -: Moving Car Slowly: Lookout. A motorman seeing a child of tender years on the street moving towards the track does not by moving slowly relieve himself of the duty of keeping a lookout for the child until it is out of danger.

      Appeal from Jackson Circuit Court. — Hon. Kimbrough Stone, Judge.
    Reversed and remanded.

      John N. Southern for appellant.
    (1) The use of the words “person” and “persons” approaching the tracks of a street car, in respondents’ instruction, does not express the law of this case, but the contrary. And the use of the word persons in defendant’s instruction number six also erroneously directed the jury in the case at bar. Simon v. Railroad, 231 Mo. 74; Childers v. Railroad, 141 Mo. App. 684. (2) There was no evidence to support instruction given for defendant to sustain the proposition that the motorman took precautions to avoid injuring the child, at the time the front trucks safely passed him, the appellant herein, but positive evidence to the contrary. It assumes facts hot in evidence and eliminates essential elements from consideration of the jury. Simon v. Railroad, 231 Mo. 80; Schumaker v. Breweries, 247 Mo. 161; Sinamon v. Moore, 161 Mo. App.'168; Bouillon v. Laclede Co., 165 Mo. App. 321; Kendrick v. Davis, 156 S. W. 490. (3) The court erred in giving for respondent instructions assuming that there was evidence that the child ran from where the motorman claims to have seen him, when the front trucks passed him, to and under the rear wheels of the car. The record contains no evidence to that effect. Eckhard v. Transit Co., 190 Mo. 620; Shanahan v. Transit Co., 109 Mo. 233. (4) Respondent’s instructions on proximate cause, are not applicable to this cause, for the reason that the appellant, at the time of the injury, was a mere child and known to be so by the motorman, at the time of the collision resulting in the injuries. Simon v. Railroad, 231 Mo. 75; Cytron v. Railroad, .205 Mo. 719; Meker v. Railroad, 178 Mo. 186; Livingston v. Railroad, 170 Mo. 470; Cringle v. Railroad, 213 Mo. 114; Cornovisky v. Transit Co., 207 Mo. 273. (5) Respondent’s instruction that “If appellant’s injuries were the result of unavoidable, accident and not the negligence of motorman,” was reversible error. Simon v. Metropolitan, 178 S. W. 450. (6) The plaintiff under all the testimony in the case was entitled to a verdict in his favor and his motion for a new trial should have, been sustained. Cytron v. Railroad, 205 Mo. 720; Livingston v. Railroad, 170 Mo. 452; Simon v. Railroad, 231 Mo. 74. (7) In respondents’ instruction number 2, the court instructs the jury they must find “that defendant’s motorman was guilty of negligence in not taking such precautions to avoid injuring the plaintiff after the motorman saw him in a position of danger, if you believe he was in a position of danger, from being run over by the rear wheels of the ear, as a reasonably prudent person would have done under the same: circumstances, and unless you so find, then, plaintiff cannot recover in this case and your verdict must be for the defendants,” omitting to include in the instruction the necessary phraseology of the motorman’s duty, “or by the exercise of ordinary care, might have seen him in a position of danger.” This is fatal error and takes from the consideration of the jury, whether the motorman could, in the exercise of such care, have seen the child approaching the car, after it had stepped from the curb into the street.

      L. T. Dryden for respondents.
    (1) The defendant’s peremptory instruction in the nature of a demurrer to all the evidence should have beeen sustained, no negligence whatever upon the part of the motorman having been shown. 2 Nellis on Street Railways (2 Ed.), p. 937, sec. 410; Budger v. Albany St. Ry. Co., 42 N. Y. 459; Boland v. Railroad Co., 36 Mo. 492. (2) These instructions, it seems need only be read to convince the court that they correctly state the law if the appellant was entitled to go to the jury at all. The first simply told the jury that the motorman should have exercised such care as a reasonably prudent person under the circumstances would have done. The second calls the jury’s attention to tbe fact that because the real defendant in the case was a corporation should not in anywise mitigate against it in arriving at a verdict. Feary v. Metropolitan St. Ry. Co., 162 Mo. 97; State v. Talbott, 73 Mo. 347. (3) Complaint is made that the term “proximate cause” is not defined, and that the instructions are not applicable to this case. The term ‘fproximate cause” is defined in instruction 9. The jury unquestionably understood that by the term “proximate cause” was meant the negligence of the motorman as defined in other instructions that caused the unfortunate accident. Battles v. Railroad, 178 Mo. App. 596; Kelley v. Railroad, 75 Mo. 138; Warner v. Railroad, 178 Mo. 125; King v. Railroad, 211 Mo. 1; McG-ee v. Railroad, 214 Mo. 544; Schmidt v. Transit Co., 140 Mo. App. 182. (4) Appellant complains of instruction 2, given' at the instance of respondents. There might be cases where the evidence would be such that the instructions ought to be as contended by appellant’s counsel; but in this case there are two reasons why this instruction correctly stated the law as applicable to the facts in this case, to-wit: First, the motorman himself testified that he saw the child when he started the car from the west side of Union Street and until after the front part of the car had passed it. So it was not a question'of what he might have seen, because he actually did see, and the question here is what he should have done under the admitted fact that he actually saw the child. Second, appellant submitted the case under this, theory as will be seen by instruction 1 as amended by the court, given at the instance of appellant.
   WILLIAMS, J.

Plaintiff, a minor three years of age, sues, by next friend,.to recover the sum of thirty thousand dollars for the loss of both feet. The injury is alleged to have been caused by the negligence of the defendant in the operation of its street car. Trial was had in the circuit court of Jackson County, at Independence, resulting in a verdict for the defendant. Plaintiff has duly appealed.

The evidence was substantially as follows:

The injury occurred about six p. m., March 29, 1912, near the point where the east line of Union Street intersects Lexington Street at Independence, Missouri. Lexington Street, upon which the defendant’s double street-car tracks are situated, runs east and west. Union Street crosses it at right angles. A grocery store is on the south-east corner of this crossing. The car which injured plaintiff was an east-bound car, operated on the south tracks. Union Street, at its intersection with the south line of Lexington Street, was forty feet in width. The distance from the- curbing, in front of the corner grocery store, to the south rail of the south track, was ten feet and five inches. Just'prior to the accident the car in question made a stop on the west side of Union Street for the purpose of discharging passengers. One passenger alighted. Signal was ’then given for the ear to start and the motorman started the car in the ordinary way and had proceeded to a point where the rear trucks of the car were almost directly north of the center of the grocery store, when a scream was heard and the car was brought to an immediate stop;, some witnesses saying that it stopped in five or fen feet, others saying that it went as far as twenty-five feet. The scream heard was that of the plaintiff, and he was found lying with' his feet (crushed) upon the south rail and his head and body toward the south. He was immediately taken to a near-by undertaking establishment, and the undertaker bound his limbs with a cord to stop the flow of blood. He was shortly removed to a hospital. Upon examination, amputation was found to be necessary, which was accordingly performed. Both feet were amputated a short distance above the ankle. In about two months the amputated limbs had healed and, later, at the trial, plaintiff was able to walk upon artificial limbs.

A lady passenger on said car was standing near the front vestibule, and as the front of the car passed the grocery store she saw the child standing in the street at a point about half way between the car and the curb. The child was facing the car. The witness said the child might have been walking slowly, but she was not sure. After the ear had moved a short distance she heard a child scream, and the car was stopped and the injured child picked up.

One of the gentlemen passengers testified that as the car was crossing Union Street he saw the motorman look out the door and heard him apply the air. The witness then looked out the window to see what the trouble was, and saw the child lying face downward with its feet on the track, about one foot in advance of the rear trucks. Immediately thereafter the child screamed and the car was brought to a stop.'

A clerk in the corner grocery looked out as the car was passing. He states that it looked like the child had his hands on the side of the car along about the center of the car. He saw the little boy fall and the rear wheels run over his feet. This witness was the first one to the injured child. He picked the child up, carried him in and called a doctor.

Plaintiff used the motorman as a witness. The motorman testified that he first saw the child just as he started his car from the west side of Union Street. At that time the- child was on the sidewalk in front of the grocery store. About the time the front of the car reached the center of Union Street, he saw the child step down into the street, facing north and looking into the motorman’s face. When the motorman saw the child step into the street he states that he turned off the power, lowered the speed to about one mile an hour, so that the car was barely moving, and got the car under perfect control. He stated that he could not tell what the child would do; that he feared the child would get in front of. the car and for that reason took the above precautions. He stated that the child did not take any further steps after stepping into the street, hut was standing in that position (a distance of eight or nine feet from the south edge of the car) when the front end of the car passed the child. The motorman last saw the child through the door of the front part of the car. The child was then at a point due south of the front trucks and, according to the motorman’s testimony, was standing at the same position as above described. After the front trucks passed the child the motorman says that he “fed up” or increased the speed of the car; that he thought the child was safe after the front trucks had passed the child. In a few seconds he heard the child scream and immediately stopped the car. The evidence shows that the clear space between the front and the rear trucks was about twelve feet in length, and that the distance from the center of the rear wheel on the front truck to the center of the front wheel on the rear truck- is sixteen feet' and six inches. The body of the car extends fifteen inches beyond the rail.

The defendant introduced in evidence the original petition in the case for the purpose of showing that under the allegations of that petition it was stated that the child stood in the street, and that the petition contained no allegation that at any time the child was approaching or attempted to cross the street.

In rebuttal the plaintiff offered a portion of the motorman’s deposition which was taken after the original petition was filed.. In the deposition the motorman was reported as testifying that he first saw the child next to the curb and' that the child took a step or two towards the car. This was offered for the purpose of explaining why the amended petition was filed.

Appellant attacks defendant’s instructions 1, 2, 3, 4, 6, 7 and 8 which were as follows:

“1. The court instructs the jury that a motorman in charge of a street car is only required to exercise toward persons near its tracks ordinary care to prevent injury to persons if near the track and if he does this he is guilty of no negligence. If. you believe that the motorman, Sherman, did all that a reasonably prudent person under the same circumstances would have done to prevent injury to plaintiff, then he was guilty of no negligence and plaintiff cannot recover in this case and your verdict must be for defendant.
“2. The court instructs you that before plaintiff is entitled to recover in this case plaintiff must -show to your reasonable satisfaction by a preponderance of the credible evidence, that is, by the greater weight of the credible testimony offered in the case, that defendant’s motorman was guilty of negligence in not taking such precautions to avoid injuring the plaintiff after the motorman saw him in a position of danger, if you believe he was in a position of danger, from being run over by the rear wheels of the car, as a reasonably prudent person would have done under the same circumstances, and unless you so find, then plaintiff cannot recover in this case and your verdict must be' for the defendants.
“3. The court instructs the jury that if you ber lieve and find from the evidence in this case that at the time the front trucks of the car safely passed the plaintiff, he was standing still and that there was nothing in his manner to indicate to the motorman that the child would run against the car or under the rear trucks and that a reasonably prudent person situated as the motorman was, would not have reasonably anticipated that the child would run under the rear trucks of the car and that the motorman took all the precautions to avoid injuring the child that a reasonably prudent person would have done under the same circumstances then plaintiff cannot recover in this case and your verdict must be for the defendants.
“4. The court instructs the jury that if you believe and find from the evidence that- a reasonably prudent and careful person placed in the position of the motorman at the time would not have. reasonably anticipated that plaintiff, after the front trucks of the car had safely ^passed him, under all'the facts and circumstances detailed in evidence, would run against the car or under the rear trucks, then the motorman, Sherman, did all that was required of him, and he was guilty of no negligence, and plaintiff cannot recover, and your verdict must be for the defendants.
"6. The court instructs the jury that this case should be considered by you the same as if it was a contest between two persons of equal standing in the community; the fact that one of the parties is a corporation should not and must- not affect your minds in any way in the consideration of the case; the rights of the parties should and must be determined upon the evidence introduced, and the instructions given to the jury, which are the law and the only law to guide you in your deliberations.
“7. The court instructs the jury that if you believe and find from the evidence that plaintiff’s injuries were due to an unavoidable accident and not to any negligence (as defined in other instructions) on the part of defendants’ motorman in the management of defendants’ car, at the time, then plaintiff cannot recover, and your verdict must be for the defendants.
“8. The court instructs the jury that in this case the burden of proof rests upon the plaintiff to prove to your reasonable satisfaction, by the preponderance of the credible testimony, that defendants were guilty of negligence as submitted to you in these instructions; and unless you believe and find from the evidence in this case that the plaintiff has proven, by a preponderance of the credible testimony, to your reasonable satisfaction that the defendants were guilty of negligence as defined in these instructions, and that such negligence was the proximate causae of the injuries complained of, then you cannot find for the plaintiff.”

I. It is contended by appellant that the court erred in giving defendant’s instructions, numbers 1, 2, 3, 4, 6, 7 and 8. The instructions will be found copied in full in the foregoing statement.

It is contended that the use of the word “persons” in instruction numbered 1 is erroneous; that it has the effect of classifying plaintiff as an adult and is subject to the criticism given a similar instruction in the ease of Simon v. Railway, 231 Mo. 65, l. c. 74-75. We do not agree with appellant’s contention in this regard. The instruction criticized in the Simon case was entirely different from the one now before us. In the Simon case the instruction told the jury that “the fact that a person leaves the sidewalk and comes near the track is not enough in itself to impose the duty on the motorman to stop the car.” The court held that the above was a proper declaration of the law as to an adult approaching the tracks, but was inapplicable when a child of tender years approached the tracks. The instruction in the case at'bar declares it to be the duty of the motorman to exercise ordinary care to prevent injuring persons near its’ tracks. We find no fault with that statement of the law. It was the duty of the motorman to exercise ordinary care to prevent injuring persons near the tracks, whether they were adults or children of tender years. There is nothing in the instruction which would cause the jury to infer that the plaintiff in this case was to be considered as an adult for the purpose of determining the requirements of the duty to exercise ordinary care, imposed upon the motorman.

The second instruction, in effect, told the jury that before they could find for the plaintiff they must find that defendant’s motorman was guilty of negligence in not taking such precautions as a reasonably Prudent person would have done under the same circumstances, to avoid injuring the plaintiff, after the motorman saw him in a position of danger from being run over by the rear wheels of the car, etc.

We think the above instruction clearly erroneous. By that instruction the defendant was virtually relieved from liability if the motorman failed to see plaintiff in a position of danger from being run over by the rear wheels of the car, whether such failure to see was or was not the result of negligence upon the part of the motorman. That the child did get into a position of danger from being run over by the rear trucks is very clear from the evidence; because he was, as shown by all the evidence, run over by the rear wheels of the car. It also appears from the evidence that the motorman did not see the child just as it was approaching or about to come in contact with the rear wheels. So far as the testimony discloses, the motorman last -saw the child when he was standing alongside of the front trucks and a few feet out from them. The motorman could have seen the child approach the track and come within danger of the rear wheels had he been looking out at the child. Did ordinary care, under the circumstances, require him to look and see? "We are not called upon to answer that' question as a matter of law but it was certainly an issue of fact that the jury should have passed upon. If the motorman saw or. could, by the exercise of ordinary care, have seen the plaintiff in a position of danger from being run over by the rear wheels then it was certainly his duty to use ordinary care to prevent the injury. The instruction, therefore, erroneously omits from the jury’s consideration the important question of fact as to whether or not the motorman could, by the exercise of ordinary care, under the circumstances, have seen the child in a position of'danger from being run over by the rear trucks.

It is contended that instructions three and four are erroneous in that they each assumed that the child “ran” from the point where the motorman last saw him, to and under the rear tracks, and that theré is no evidence that he “ran” under the car. Technically speaking, perhaps the use of the word “run” in the instruction is improper. The word “move” would better express the correct idea. It does appear from the evidence that he moved from the curb to a place under the wheels; ‘whether he walked or ran does not appear. No doubt, however, the word “run” was intended to be used in the sense of “move” and was so understood by the jury. We are unwilling to say that this slight mistake, under the facts of this case, would amount to reversible error, but, since the case must-be retried, we suggest that the matter be corrected if the facts remain the same and the instruction should be again offered.

The sixth instruction told the jury that the case should be “considered the same as if it was a contest between two persons of equal standing in the community.” This instruction, when applied to a case wherein the parties are adults, or where one is an adult and the other a corporation, has been held to announce a correct rule of law (Feary v. Met. St. Ry. Co., 162 Mo. 75, l. c. 97); but where, as here, one of the parties is a mere infant three years of age, the instruction should not be given, because it is apt to mislead the jury into believing that the infant plaintiff should be considered in the status of an adult so far as the duties of the defendant to look out for its safety was concerned. An ordinarily prudent person, exercising ordinary .care for the safety of others, would certainly be- expected to exercise greater precaution to protect a child near the track than would be required in protecting an adult. The adult is presumed, in a certain measure, to look out for his own safety. No such presumption surrounds the treatment to be accorded a more infant.

The seventh instruction should not have been given in this case, because there was no evidence of any accident within the proper meaning of that term. The issue raised by the present facts was simply one of negligence vel non of the motorman. Under such conditions the instruction should not be given. [Simon v. Metropolitan St. Ry. Co., 178 S. W. 449, wherein the decisions on the question are reviewed; Wise v. Transit Company, 198 Mo. 546, l. c. 559-560.]

The eighth instruction is subject to criticism because it uses the term “approximate cause” without defining or explaining it. It was said in the case of Montgomery v. Railroad, 181 Mo. 508, l. c. 513, that the use the term “proximate cause” unexplained in an instruction would tend to mystify rather than aid the jury in reaching a correct conclusion. Subsequent instructions for defendant, in the present case, did, in a way, tend to explain the term, we think, and for that reason the use of the term may not have resulted in error in this case. The purpose of instructions, however, is to enlighten, not to mystify, the jury and, since the case must be retried, we would suggest that the instructions as to this point be made clear, so that all danger of the jury being misled thereby may be obviated.

Other errors urged by appellant are not such as will likely reoccur upon another trial. For that reason we deem their discussion now unnecessary.

II. It is contended by respondent that even though it be conceded that error occurred in the giving of some of defendant’s instructions yet the judgment should not be reversed because it was for the right party; that defendant’s demurrer to plaintiff’s evidence offered at the close of the case should have been sustained because the plaintiff failed to make even a prima-facie case for the jury’s consideration.

We are unable to agree with the contention that the case should not have been submitted to the jury. In passing upon a demurrer to the evidence, plaintiff is entitled to have the same viewed in its most favorable light.

There was evidence in this case tending to show that this little child, less than three years of age, stepped from the curb, into the street as the car slowly approached; that as the front of the car passed the child he was standing half way between the car and the curb (if that were true the child was approximately five feet from the nearest rail); the motorman saw the child and watched him only until the front trucks had passed beyond the position of the child; the motorman then ceased watching the child and started to increase the speed of the car; he explains that his reason for watching the child up to that point was because “You can’t tell what a child will -do.” Evidently after that time the child moved a step or two closer to the car and placed its hands against the side thereof and was thrown off its feet and fell in such a way as to engage his feet under the rear wheels of the car.

Under the above conditions, can it be said, as a matter of law, that defendant’s duty to exercise ordinary care to protect the child from injury had been performed when it merely watched long enough to see that the child was not injured by the front trucks and that a like duty did not also exist with reference to preventing injury from the rear trucks'?

Would all reasonable minds agree in saying that when a child three years of age is seen, unattended, standing within five feet of a street car track (to which position he had moved from the curb while the street car, moving very slowly, had approached a distance of twenty feet, half-way across Union Street) the duty of the persons operating the car, to exercise ordinary care for the child’s safety, had been fully performed by watching the child until danger from the front trucks of the car was past and that no precautions should have been taken to protect the child from possible action on its part which might bring it within the danger of the rear wheels'? We think not. Some reasonable minds might suggest that the child, because of its tender years. and, therefore, its likelihod of “doing the wrong thing at the right time” was in a position of peril and that the car should have been stopped until the danger was averted. [Simon v. Railway, 231 Mo. 65, l. c. 78]. Other reasonable minds might suggest that if the car were to be moved forward at all under the conditions there existing that it should be' done in a watchful and careful way so that the car could be stopped in time to avert any actual danger that might develop. [Simon v. Railway Co., supra, l. c. 78-80].

The mere fact that the car was moved very slowly while it passed the child does not relieve the situation. A car moved, slowly, without keeping a lookout for the child, was just as likely to injure the plaintiff as - if it were moved rapidly. In fact the slower the movement the greater the time allowed for the child to move under the same.

The matter fully and carefully considered, we are of the opinion that it was for the jury, properly instructed, to determine whether the defendant performed its duty in exercising ordinary care, under the circumstances, to protect the child and prevent his injury.

The judgment is reversed and the cause reminded.

All of the judges concur.


author: WHITE, C.

text:
    SPOTTSWOOD D. BURNETT, Appellant, v. CHARLES W. PRINCE.
    Division Two,
    July 27, 1917.
    1. ABSTRACT: Judgment for Defendant. An abstract of the judgment in the words: “March 4, 1914. Jury returned a verdict for defendant and judgment accordingly for defendant” sufficiently describes a judgment for defendant for purposes of appeal.
    2. -: Piling Bill of Exceptions. If the abstract of the record proper shows appellant was granted leave to file a bill of exceptions within a designated time and that before the expiration of that time the bill was allowed and filed, it shows that the bill was “duly filed” within the meaning of those words as used in Rule 31.
    3. WAIVER: Proof of Necessary Averment. The plaintiff may waive proof of a necessary averment in defendant’s answer by trying the case as if the proof had been made.
    4. DEPOSITION: Notice. Authority to take depositions is purely statutory, and while they may be taken conditionally, no officer, who is without a commission issued out of a court of record, has authority to take testimony or compel the attendance of witnesses by issuing subpoenas until the proper service of a proper notice of the time and place,
    5. -: Subpoena Before Notice: Subsequent Service. A subpoena issued before notice to take deposition is served, is issued without authority. And being unauthorized when issue.d, a subsequent service of the notice and subpoena at the same time will not give it validity.
    6. -: -: Palse Imprisonment. A person who issues a writ for the arrest of another is liable for an action for false imprisonment if he is without authority to issue it. So that a notary who issues a subpoena for a witness before service of notice to take depositións, is without authority to issue a writ of attachment for such witness on his failure to obey the subpoena, and is liable in an action for false arrest if the witness is attached.
    7. -: Notice Naming Wrong Place. A notice to take depositions in a suit pending in Independence, which names Kansas City instead of Independence as the place where the suit is pending, will not authorize the officer to enforce the attendance of witnesses. The statute makes the courts at the two places distinct and separate courts.'
    8. -: - — : Mitigation: Nonsuit. Knowledge by the witness that the notice to take depositions wrongfully named Kansas City instead of Independence as the place where the suit is pending and a concealment of that knowledge for the purpose of creating a damage suit, go to mitigation of damages in a suit for false arrest for failure to obey the subpoena, but will not authorize a nonsuit.
    9. -: -: Waiver. A signing of an acknowledgment printed on the notice to take deposition, to the effect that defendant acknowledges the service of notice, waives the issue of dedimus and all exceptions to time, etc., has no more effect than its terms import. It does not authorize the taking of depositions in a suit filed in a different place from the one mentioned in the notice. Such waiver would not confer validity on a void subpoena issued before the waiver.
    Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.
    Reversed and remanded.

      J. D. Shewalter for appellant.
    (1) Any illegal restraint of another constitutes false imprisonment. Boeger v. Langenberg, 97 Mo. 390; Mc-Caskey v. G-arnett, 91 Mo. App. 354. But when plaintiff: showed his imprisonment defendant “may justify my showing legal process but he must plead it.” Thompson v. Buchholz, 107 Mo. App. 121. The amended answer so far from showing legal process as a defense, alleged facts which show that the process was illegal. This alleged a suit in another court and also a subpoena to appear which was void for the reason that it was issued before any notice, even if it had been issued in a pending suit. Ex parte Canada, 151 Mo. App. 710; Millspaugh v. Railroad, 138 Mo. App. 31. (2) But the process on which the defendant was arrested was wholly illegal and the arrest thereunder was false imprisonment.

      Glen Sherman, J. E. Westfall and J. N. Beery for respondent.
    (1) The appeal ought to be dismissed for the reason that the pamphlet purporting to contain the record proper, the bill of exceptions, statement, points and authorities, brief and argument are so commingled as to render it practically impossible to intelligently distinguish one part from the other. Royal v. Railroad, 190 S. W.' 573. (2) The pamphlet purporting to contain an abstract of the record proper fails to show the term of court, if any, when the motion for a new trial was ruled upon, for the nature of the motion for a new trial. True, the pretended abstract of the record refers to the bill of exceptions, but this court cannot be referred to the bill of exceptions. Under the rules of this court the abstract of the record proper shall “set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision.” Coleman v. Roberts, 214 Mo. 634; Sonnenfeld v. Rosenthal, 247 Mo. 265; Strother v. Barrow, 246 Mo. 241; Steel Co. v. Cottengin, 179 Mo. App. 397; Merrill v. Trust Co., 46 Mo. App. 242. (3) The sufficiency of the evidence to warrant the verdict and judgment is not complained of by the appellant in his assignment of errors or points and authorities or in the argument, it is taken as confessed that the point so raised is not well taken and is abandoned by the appellant. Crowell v. Linseed Co., 255 Mo. 305; Pale v. Insurance Co., 173 Mo. App. 485; Meredith v. Whitlock, 173 Mo. App. 542. (4) The notice was sufficient. The notice gave the title of the case, the court in which the cause was pending, the time when and the place where the depositions would be taken. Moreover, the defendant agreed in writing that the depositions may be taken. Sec. 6392, R. S. 1909; Ornisby v. Granby, 48 Yt. 44; Grocery Co. v. Stevens, 65 111. App. 609; Murray v. Phillips, 59 Ind. 56; Lumber Co. v. Fidelity & Deposit Co., 161 Col. 397. The notice given for the taking of the depositions contains this memorandum, signed by the appellant. Delisle v. MeGillivary, 24 Mo. App. 680,- Seymour v. Farrell, 51. Mo. 97. (5) There is only one circuit court of Jackson County. “The Sixteenth Judicial Circuit shall consist of the county of Jackson.” See. 3995, R. S. 1909. (6) The clerical error of describing the circuit court of Jaekson County, as being at Kansas City, is merely unnecessary description, and may be rejected; there being only one circuit court, legally known as the Sixteenth Judicial Circuit Court consisting of Jackson County, such description could not possibly have misled the appellant. Rand v. Dodge, 17 N. H. 354; Thompson v. Stewart, 3 Conn. 180.
   WHITE, C.

The suit is for damages for false imprisonment, brought in the Jackson County Circuit Court. On the trial of the cause, March 4, 1914, after all the evidence had been introduced by both the plaintiff and the defendant, the court instructed the jury to return a verdict for the defendant.

On the 14th of November, 1907, the plaintiff herein was arrested on an attachment issued by W. W. Calvin, notary public, on account of his failure to appear on that day and give his deposition in a case pending in the circuit court of Jackson County, Independence Division, wherein B. C. Boyles was the plaintiff, and the plaintiff here, S. D. Burnett, was the defendant. Plaintiff was arrested at his farm, some four or five miles from Independence, and taken by the constable under the attachment to the office of Calvin in Kansas City where he arrived about five or six o’clock p. m. The notary discharged him upon being informed that the notice to take depositions was irregular in particulars explained below. This arrest furnished ground for the cause of action charged in the petition.

The answer alleges that a suit was filed in the case of Boyles v. Burnett on the 11th day of November, 1907, in the circuit court of Jacks on County, at Independence, and on the same day a notice was served on the plaintiff herein that depositions would be taken in the cause on the 14th of November, 1907; -but by a mistake in writing the notice, it recited that the cause was pending in Kansas City instead of Independence; that on the same day, November 11th, this plaintiff was served with subpoena to appear on the 14th before the notary named therein and give his deposition in said cause; summons was served on the plaintiff herein op. the 12th day of November, 1907, whereby he became apprised of the mistake in the notice to take depositions, but' concealed that knowledge from the defendant herein for the purpose of creating a damage suit, and plaintiff would not have been molested if he had revealed the fact of such mistake.

The plaintiff claimed, as shown by his reply and his evidence introduced at the trial, that the suit on which the notice was served was not filed until November 12th, and therefore when the notice to take depositions was served upon him there was no suit pending corresponding to the notice, for which reason he was not bound to appear. It was further claimed by the defendant that inasmuch as the notice to take depositions stated that the depositions were to be taken in a suit pending in Jackson County at Kansas City, it was not notice of the suit actually filed, even if it had been filed at the time notice was'served, because that suit was filed at Independence instead of Kansas City.

The notice to take depositions as copied in the record, contains the mistake mentioned, but the subpoena alleged to have been served at the same time was not introduced by either party, nor any offer made by either party to show that it was lost or to prove its contents. The only evidence of the service of a subponea on November 11th was that while plaintiff was on the stand, after stating that he had received the notice to take depositions, he was asked:

“Q. At the same time you got a subpoena to appear at Mr. Prince’s office to give your deposition on the 14th day of November, didn’t you? A. Yes, sir.”

As further justification, apparently, for issuing the attachment, another supoena was introduced in evidence dated November 13th. This subpoena was placed in the hands of the constable at the same time he received the attachment on the 14th, and he took both the subpoena and attachment and served the subpoena at the same time he made the arrest in the afternoon of -the 14th.

To prove the suit was filed November 11th, defendant offered the petition in the case of Boyles v. Burnett, showing the rubber stamp file mark as follows: “Piled Nov. 11, 1907, Oscar Hochland, Clerk, by A. R. White, Deputy.”

On the part of plaintiff two deputy clerks were introduced and identified books kept in the office of the clerk of the circuit court which purported to contain entries made when cases were filed. In each of these some entry in relation to filing the case of Boyles v. Burnett, No. 18,750, appears under date of November 12, 1907. These books also showed several other entries on the day’s business of November 12th, before the entries in relation to the case of Boyles v. Burnett. The two deputy clerks who testified to these matters explained that the rubber filing stamp had an arrangement by which they would move up the date each morning in order to change it from the previous day and stated that they would sometimes forget to change it in the morning until after they had used the stamp; that the stamped date on the petition, “November 11, 1907,” possibly was made in that way on the morning of the 12th before they discovered it had not been moved up, and that according to this record the suit must have been filed on November 12th. The deputy, A. R. White, who stamped the file mark on the petition as of the date of the 11th and in whose handwriting appeared the entry on one of the books, stated he could not remember the filing of the case, but thought that the file mark was correct.

I. Almost the entire space in respondent’s brief is taken up with numerous objections to the record. Because these objections are urged so persistently we notice a few of them as follows:

It is asserted that the abstract of the record proper fails to abstract any final judgment rendered. The abstract of the record proper shows the following:

“March 4, 1914. Jury returned verdict for defendant and judgment accordingly for the defendant.”

This abstracts a judgment for defendant as fully as need be. If it were a judgment for plaintiff some further particulars as to the charactér of the judgment might be necessary, but being a judgment for the defendant this describes its character.

It is complained that the record proper fails to show that a motion for new trial was ruled upon “and the nature of the motion.” After reciting the filing of the motion for new trial in due time on March 7, 1914, there follows this entry: “May 2nd, 1914, motion for new trial overruled.” This record shows the motion was ruled on and the “nature” of the motion — it was a motion for new trial.

It is claimed that the record proper fails to show that any bill of exceptions was duly filed. The recital in the abstract of the record proper shows the following:

“May 2, 1914. Plaintiff granted leave to file bill of exceptions on or before November 1, 1914.
“October 31, 1914. Bill of exceptions allowed and filed.”

It is urged by respondents that in the absence of a formal entry showing the filing of the bill of exceptions, the recital should contain the exact words required by Rule 31 of this court, which provides that it will be sufficient if the abstract states the bill of exceptions was “duly filed. ” Respondent lays immense emphasis upon the word “duly.” One of the dictionary meanings of “duly” is “timely.” Now, the word “filed” has a certain significance and if the bill of exceptions was “filed,” and filed within the time provided, then it is “duly filed.” Other objections of character similar to the above do' not require discussion.

II. The defendant in answer to the allegations of the petition alleges a subpoena was issued and served on the 11th of November, which the plaintiff herein disobeyed and justified the issuance of the writ of attachment: It was necessary for the defendant to support that allegation by proof. None was offered; the alleged subpoena was not produced nor its loss accounted for, nor any evidence of its contents offered. The officer who served the notice to take depositions was not a witness. The. only evidence of the service of a subpoena is in the paáss^te from the testimony of the plaintiff quoted above. The statement he made does not designate nor identify the case in which the subpoena was issued. The appellant, however, seems to have waived that irregularity, and.without requiring proof of the existence and formality of a subpoena in the proper ease tried the case as if the subpoena had been issued and served. Therefore, - for the purpose of this discussion, we shall have to assume that a subpoena, correct in form, was issued by the notary and served at the same time as the notice, on November 11th.

III. Courts at common law had no inherent power to authorize the taking of depositions. A court of chancery tried cases upon depositions and, upon a petition filed by a party to a pending cause, could issue a commission authorizing some person to take testimony in the form of depositions. In our courts such authority is purely statutory. The party desiring depositions may take them “conditionally.” An officer taking depositions in a cause acts in a judicial capacity, and his authority is derived from the court in which the cause is pending;, by conformity to the statute certain officials named in section 6387, Revised Statutes 1909, may become temporary substitutes for the court, and as such take testimony in the form of depositions. [Swink v. Anthony, 96 Mo. App. l. c. 424; Stirneman v. Smith, 100 Fed. l. c. 603; Ex parte McKee, 18 Mo. 599.] The statute is strictly construed. [Patterson v. Fagan, 38 Mo. 70; Ex parte Mallinkrodt, 20 Mo. 493.]

In depositions to he taken out of the State, before authority is given a commission is necessary, unless waived. In taking depositions of witnesses within the State no commission is necessary except under conditions mentioned in section 6390. But always, whether a commission issues or not, the notice is necessary before any of the officers named in section 6387 can take the testimony or enforce the attendance of witnesses, or perform any function in connection with the taking of depositions, such as issuing subpoenas.

A notary or justice of the peace has no power in the premises until the statute is complied with. It is the proper service of a proper notice of the time and place which vests the officer with authority to take testimony and to compel the attendance of witnesses by issuing subpoenas. [Secs. 6392, 6394-6, and 6404, R. S. 1909; Tiede v. Fuhr, 264 Mo. l. c. 628; In the Matter of Whicker, 187 Mo. App. l. c. 100.]

Under section 6404 the officer is authorized and required to take depositions “in pursuance of this article, or by virtue of any commission issuing out of any court of record,” and “shall have power'to issue subpoenas for witnesses to appear and testify, and to compel their attendance,” etc. He must have authority either by the commission issued to him or ‘ ‘in pursuance of this article” to-wit, by the service of notice. The issuance of a commission in the one case gives him authority as the service of the notice does in the other. ' The service of the notice is the summary method of vesting authority in, the certain officers named in the statute to perform the functions of the court, otherwise a special commission would be required.

At the time the attachment was served in this ease the officer had the benefit of two subpoenas, one of them issued November 13th and served a minute before the arrest. It is not claimed that disobedience of that subpoena was sufficient to authorize the arrest because it had not been served when the attachment was issued. The other subpoena was served on the 11th, but at the same time that the notice was served. It was issued before the notice was served and consequently at a time when the notary had no authority to issue it.

In the Tiede case, supra, the notice was void because it gave an impossible date, and the court in hold-ink void the subpoena afterward issued, said: “In such case in the absence of authority [by service of notice] to take depositions there can be no power to subpoena and attach witnesses whose depositions are desired.”

In the Whicker case, supra, the notice was served on the wrong party, and the Kansas City Court of Appeals said (187 Mo. App. l. c. 101): “The notary was without authority to take depositions, and consequently was without authority to subpoena Whicker.”

The respondent apparently conceded that the notary was without power to take evidence and issue an attachment before the notice was served, but seemed to think he could issue a subpoena and that it would be good if it were merely served after the notice. He sent the notice and subpoena along together, with a person not an officer, and that person after serving the notice at the same time served the subpoena. The subpoena was unauthorized when issued, and the subsequent service of the notice could not give it validity. It is the same condition as a summons issued in a ease before the petition is filed, it is void process. [Hust v. Conn. 12 Ind. 257; Gearhart v. Olmstead, 37 Ky. 441.] Yoid process is defined to be such as was issued without power in the court to award it, or which the court has not acquired jurisdiction to issue in the particular case. [Bryan v. Congdon, 86 Fed. 221.]

IV. An action for false imprisonment will not lie against an officer who makes an arrest upon a writ, regular and fair on its face and issued "by a court having jurisdiction. [Emery v. Hapgood, 66 Am. Dec. 459; Wehmeyer v. Mulvihill, 150 Mo. App. l. c. 205.] But the formal regularity of the writ does not protect the person who causes it issuance. When a private person causes a writ to "be issued for the arrest of another he is bound to-see that the record of the court which issues it furnishes authority for the writ. [Tiede v. Fuhr, 264 Mo. l. c. 629; McCaskey v. Garrett, 91 Mo. App. 354; Boeger v. Langenberg, 97 Mo. 390.]

V. Whether or not the suit of Boyles v. Burnett was filed on the 11th or 12th of November is a question of fact which may or may not be necessary to settle in another trial. If nothing further is shown regarding the issuance of the subpoena than in-dictated above it will not be necessary. However, it was error to nonsuit the plaintiff on the evidence introduced, instead of submitting that issue to the jury.

VI. The notice naming Kansas City instead of Independence as the place where the suit was pending, on the authority of the Tiede case, did not authorize the notary to enforce the attendance of witnesses. In the Tiede case the witness knew there was a mistake in the notice, for she was served with a snbpoena a few minutes afterwards which gave a correct date and proved the intention was to give her notice for taking of the depositions on the same date as the subpoena required her appearance. Nevertheless, such knowledge only went to mitigation of damages.

The mistake in this ease in the notice to take depositions was in the place where the suit was pending. There was no suit pending in Kansas City, but there was a suit pending in Independence. Respondents claim that it is all one court and that the mistake -is not a

material one. Section 4031 provides that the terms of court in the Sixteenth Judicial Circuit shall he held at Independence on certain days and in Kansas City on certain other days, in the same way that the terms of court are provided in the different counties of a circuit having more than one county. By the Act of 1905, the Independence Division of the Sixteenth Judicial Circuit was created and a separate judge provided for that court. [Laws 1905, p. 121.] Cases are filed in Independence and cases are filed in Kansas City, each as a separate and distinct court. Notices of the pendency of a suit in one of those places would not he notice of the pendency of a suit in the other place. [Bowyer v. Knapp & Miller, 15 W. Va. 277.] Depositions taken on such a notice, the other party not appearing, could not be used in evidence. It is the same in principle as the Tiede ease where the mistake in the notice to take depositions referred to the time at which they were' to be taken, and in the present case it referred to the place where the suit was pending.

VII. It appears that when the notice to take depositions was served on the plaintiff herein he signed the printed acknowledgment usual in such notices to the effect he acknowledged the service of notice, waived the issue of dedimus and exceptions as to time, etc. Respondent claims that the plaintiff by signing this acknowledgment waived all irregularity, making the notice perfectly good and thereby gave the notary jurisdiction to take depositions. This waiver, however, has no more effect than its terms import. It can go no further than the acknowledgment of the service and the waiver of dedimus, etc., in the case mentioned in the notice to-wit, a case on the 11th day of' November in Kansas City. It does not enter appearance, nor authorize the taking of depositions in a' suit not .filed, nor in a suit filed in a different place from the one mentioned. Notices of this kind and waivers are construed with some strictness and go no further than the letter of the stipulation contemplates. [Seymour v. Farrell, 51 Mo. 95.] A waiver of notice to take depositions would waive the right to question authority to take the deposition in the case named at the time and place, but such waiver would not confer validity on a void subpoena issued before the waiver. Subsequent appearances to notices of this character do not cure prior irregularities in a collateral proceeding to procure witnesses. [Oxford Iron Co. v. Quinchett, 44 Ala. 487; Howard v. Folger, 15 Me. 447.]

The judgment is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM: — The foregoing opinion of White,

C., is adopted as the opinion of the court.

All of the judges concur.