author: BOND, J.

text:
    VIOLA TAWNEY, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS.
    In Banc,
    December 19, 1914.
    1. NEGLIGENCE: Instruction: Legal Presumption of No Negligence: Modification. An instruction for defendant stating to the jury the legal presumption that the injury or accident was not “due to any fault or want of care on the part of defendant,” if it goes on to tell them to disregard the legal presumption if they believe the evidence introduced by plaintiff in support of her cause of action, but to find for defendant if they disbelieve it, or if they believe the weight of the evidence to be with defendant on the issue of negligence, or if the conflicting evidence simply creates an equilibrium of proof, is not erroneous.
    2. -: -: injured “In Any Other Way.” An instruction for defendant that tells the jury that plaintiff cannot recover if her husband was injured “in any other way” than as set forth in the allegations of specific negligence contained in the petition, is not error, even though there is evidence that he was injured by malarial fever, if other instructions require the jury in unmistakable terms to confine their attention toi the specific injuries alleged.
    3. -: -: Converse of Plaintiff’s. If plaintiff is given an instruction on the theory that if the street car started prematurely defendant was chargeable with his injury, defendant is entitled to one submitting the converse theory, namely, whether the car upon which plaintiff’s husband desired to embark stopped a reasonable time to permit him to do so with safety, even though there is no testimony that he “waited an unreasonable time before attempting to board the car.”
    4. REMARKS OF COUNSEL: No Exception. Appellant cannot complain if he did not except to the failure of the court to further reprimand counsel for stating as a fact something not shown by the evidence, where the court as soon as the statement was made contradicted it and said his contradiction was made in “correction of the statement of counsel.”
    5. JUROR: Friendliness to Defendant’s President. A juror who states on his voir dire that he has known defendant’s president for thirty-five years and that their relations are very friendly, but states that such friendship will not influence his verdict, and that he will be guided by the evidence and the instructions of the court, is not incompetent.
    6. NEGLIGENCE: Evidence: No Report of Injury. It was not reversible error to permit defendant’s claim-agent to testify that the custom and due course of business required a report of an accident or injury to a would-be passenger to be made by the street car conductor to defendant’s managing officers for their information, and that no such report of the injury to plaintiff’s husband was made. But the only relevancy of such testimony is to shed light upon the conduct of defendant in failing to take such steps as prudence would have suggested if it had been informed of the accident.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo - Muench, Judge.
    Affirmed.

      Earl M. Pirkey for appellant.
    (1) It is error to instruct juries concerning presumptions of negligence. For this reason instruction 6 is erroneous. Connelly v. Railroad, 133 Mo. App. 310; Bailey v. Railroad, 152 Mo. 461; Haynes v. Trenton, 123 Mo. 332; Ham v. Barrett, 28 Mo. 388; Myers v. Kansas City, 108 Mo. 487; Rapp v. Railroad, 106 Mo. 428; Moberly v. Railroad, 98 Mo. 183; Miller v. Canton, 112 Mo. App. 322; Morton v. Heidorn, 135 Mo. 616; Payne v. Railroad, 129 Mo. 419; Schepers v. Railroad, 126 Mo. 670; Cole v. Fitzgerald, 132 Mo. App. 24; Hutchinson y. Gate Co., 247 Mo. 103. (2) Where counsel states during the trial, while not under oath, evidential facts prejudicial to the unsuccessful party, a new trial should be granted. Haynes v. Trenton, 10$ Mo. 133; Barnes v. St. Joseph, 139 Mo. App. 545; Trent v. Printing Co., 141 Mo. App. 452; Gore v. Brockman, 138 Mo. App. 234; Shohoney v. Railroad, 223 Mo. 684. (3) The fact that plaintiff received insurance on the life of her husband did not debar her from suing for the death of her husband. Harding v. Railroad, 248 Mo. 669. (4) In the administration of justice the jurors should, as far as human precaution can avail, be free from bias or influence. Billmeyer v. Transit Co., 108 Mo. App. 6; Theobald v. Transit Co., 191 Mo. 395; Carroll v. United Rys., 157 Mo. App. 247; Heidbrink v. United Rys., 133 Mo. App,. 40. (5) Testimony that it is the custom of a street car company to investigate is inadmissible. Ellis v. Met. St. Ry., 234 Mo. 685. (6) A report made by an employee of a street car company to the company is inadmissible. Setzler v. Met. St. Ry., 227 Mo. 470; Gardner v. Met. St. Ry., 223 Mo. 413.

      Boyle & Priest, A. N. Sager and T. M. Pierce for respondent.
    (1) Instruction 6 was proper since in effect it merely advised the jury that no negligence could be presumed from the happening of an accident and injury, and that unless the plaintiff proved her case by a preponderance of the evidence, she must fail. Hutchinson v. Gate Co., 247 Mo. 103; King v. Ringling, 145 Mo. 293; 1 Shearman and Redfield on Negligence (4 Ed.), sec. 59. Instruction 4 was proper since it limited the plaintiff’s right to recover to the specific negligence pleaded. The jury could not have been misled into thinking that plaintiff could not recover if her husband had been affected by malarial or typhoid fever, because at her request the court had previously charged the jury in instruction 2 that “notwithstanding you may further believe from the evidence that said Louis C. Tawney had suffered from malaria fever, provided that the jury further find from the evidence that he would not have died at the time, under the circumstances, and in the manner he did die, had it not been for being thrown and falling from said car, if the jury find from the evidence this occurred.” Stid v. Railroad, 236 Mo. 400; Beave v. Railroad, 212 Mo. 352; Gardner v. Railroad, 223 Mo. 419. Instruction 5 was proper because it merely set forth the specific negligence pleaded, and told the jury that if they believed to the contrary they should find for the defendant. Sterrett v. Railroad, 225 Mo. 111. (2) Counsel for defendant did not commit error in his argument to the jury, because the court corrected him at once, nor did the plaintiff save an exception at the time. Even had the statement been erroneous the appellant could not now take advantage of such error in the absence of an exception. Torreyson v. Railroad, 246 Mo. 706. (3) No error wras committed in overruling the challenge of the plaintiff to the juror Foske'tt, because it did not appear that the juror was prejudiced against the plaintiff or in favor of the defendant. McManama v. Railroad, 175 Mo. App. 45. (4) The evidence of Hardin, the claim agent, was properly admitted because it is competent to prove by the head of a department that the report of no accident reached him, when he would in the due course of business, have heard of such an accident had it occurred. This is competent upon the theory that the defendant has a right to explain why it introduces no witnesses to testify about an accident, when it contends that no accident actually occurred. Fleishman v. Ice & Fuel Co., 163 Mo. App. 422; 1 Wig-more on Evidence, sec. 286; Bigelow v. Railroad, 48 Mo. App; 372. (5) The verdict was for the right party and should be sustained irrespective of any technical errors. R. S. 1909, sec.'2082; Carr v. Railroad, 195 Mo. 214; Wabash v. Slook, 200 MÓ. 219; Saxton v. Railroad, 98 Mo. App. 503. .

      STATEMENT.
    Plaintiff is the widow of Lonis C. Tawney, and brings this action for damages for his death, which she alleges was caused by the negligence of the agents of the defendant street car company, in negligently causing and permitting one of its cars which had stopped at a crossing to take passengers “to suddenly start and go forward” before her husband (who desired to take passage and for that purpose had mounted the first step of the rear platform) had time to get further on the car and reach a place of safety, thereby causing him to fall and be thrown from said car and to suffer the injuries sued for. This was alleged to have happened on the 29th of November, 1909. The husband died on December 17, 1909. The damages were laid at ten thousand dollars. The answer of the defendant was a general denial and a plea of contributory negligence. The ease was submitted to a jury, who rendered a verdict for the defendant.
    On the trial, plaintiff adduced, evidence tending to prove that her husband fell or was thrown from the car in the manner-described in her petition; that he came home on another car with a bruise on his cheek about the size of a dollar and with dirt on his clothes and took to bed; that her daughter called up a physician in the employ of the defendant, who attended him about ten days; that thereafter, and until his death, he was attended by his family physician, Dr. Upshaw. The evidence showed that plaintiff’s husband had suffered from typhoid fever for about four months, beginning July, 1909, and had afterwards been afflicted with malarial fever; that about ten days before the accident, his physician had given him permission to go out. This physician testified that in the condition which the patient was at the time of the accident, the effect of such an injury as he received could have caused his death. He admitted that he made out the death certificate of plaintiff’s husband, and stated therein that his death was caused by malaria. The doctor representing the defendant, who had attended the deceased for ten days after the accident, testified that such an injury as he received could not have caused his death; that upon a second examination of his patient, he found him suffering from an enlarged spleen and other symptoms of malaria, and he thought his death was caused by “pernicious malaria.” He admitted that prior to this examination he might have told a police officer that he thought the deceased was suffering from a concussion of the brain, but that he ascertained, after a fuller examination made, when he got the bistory of his sickness from his wife, that such was not the fact. Defendant introduced evidence tending to disprove the happening of the injury, or any knowledge thereof, on the part of its conductor or motorman, or any report in relation thereto being made to its officers.
    Plaintiff duly appealed, assigning errors intervening on the trial.
   OPINION.

I.

BOND, J.

(After stating the facts as above). — Appellant complains of instruction numbered 6 given on behalf of defendant, for that said instruction, among other things, stated to the jury the legal presumption that the injury or accident to her husband was not ‘£ due to any fault or want of care on the part of the defendant.” The point of objection to this instruetion is that since there was evidence in the case which warranted the court in submitting the issue of negligence to the jury, the instruction should not have mentioned this legal presumption applicable to eases where nothing is shown but the bare fact of an injury or accident for Which redress has been sought. The instruction, however, did not stop with the statement of the presumption of law in such cases, but stated to the jury in substance that it was to be disregarded by them, if “plaintiff has established the facts entitling her to a verdict, as in other instructions defined, by the great weight of all the other evidence before made.” The only difference 'being that the court conveyed this idea by the use of two negatives “cannot be disregarded by you unless, etc. ’ ’ This was simply an equivalent mode of stating the proposition. This direction was further clarified by other language contained in the instruction to the effect that the jury were at liberty to find for the defendant if they “found the greater weight of the evidence upon the issue defined in these instructions to be against the plaintiff and in favor of the defendant,” or in case of their inability “because of con flicting testimony to conscientiously determine upon which side the credible evidence preponderates.” The plain meaning of this instruction was that the jury should .disregard the legal presumption with which it was prefaced if they believed the evidence introduced by plaintiff in support of her cause of action, but that they should find for the defendant if they disbelieved the testimony given in support of plaintiff’s right to redress, or if they believed the weight of the evidence was with the defendant on the issue of negligence, or if the conflicting evidence simply created an equilibrium of proof. For in either of these alternatives the legal presumption would reapply. This instruction stated the duty of the jury upon the issuable fact of negligence to find for the plaintiff if the evidence preponderated in her favor and to find for the defendant if it did not. This was correct, for in the event the plaintiff made no case, by affirmative proof of negligence, the legal presumption would obtain. In the absence of proof of negligence, such a presumption arises in all cases where the doctrine of res ipsa loquitur does not apply. The reason being, that in all other cases the party who alleges negligence must prove it by other evidence than the happening of the injury. The learned trial judge correctly conceived the law in this respect and embodied it in a carefully guarded instruction, since there was no claim in this case that the rule of res ipsa loquitur had any application whatever.

. II.

Appellant also complains of instruction numbered 4, wherein the court in substance told the jury that if appellant’s husband was injured “in any other way” than as set forth in the allegations of specific negligence contained in the petition, there could be no recovery in this action. Appellant says.that the deceased “was injured by malarial fever,”’ and the jury under this instruction might have thought that a verdict for defendant would be justified upon that conceded fact. To this it need only be answered that such a misunderstanding was impossible under the language contained in the last clause of instruction numbered 2 given on behalf of appellant, wherein the jury were told (an instruction covering the case), to-wit: “then you will find for the plaintiff, notwithstanding you may further believe from the evidence that said Louis C. Tawney has suffered from malarial fever, provided that the jury further find from the evidence that he would not have died at the time, under the circumstances, and in the manner he did die, had it not been for being thrown and falling from said car, if the jury find from the evidence this occurred.”

It has been uniformly held in this’State, as stated in an opinion by the writer, quoted in appellant’s brief, to-wit:

“The rule reading together all the instructions given in a .case, warrants the supplementing of an imperfect by a perfect instruction; or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; hut it does not go to the extent of holding that an instruction given for respondent which is radically wrong — that is, perverts the law or prejudges the facts — can be cured by another on behalf of the same party which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other.”

The foregoing language was used, with a slight verbal correction of error in print in Desnoyers Shoe Co. v. Lisman & Ramsey, 85 Mo. App. l. c. 344, and Linn v. Massilon Bridge Co., 78 Mo. App. l. c. 118.

The language quoted from appellant’s instruction when considered with that contained in the instruction complained of, prevented any misapprehension in the minds of the jury of the nature of the injury sued for in this action. The actionable injury for which this suit was brought was caused to the husband of appellant by his falling or being thrown from a car of the respondent. This suit was not brought for any other injury suffered by him. This was correctly stated in the instruction complained of and to prevent the possibility of error in the mind of the jury, appellant, as shown above, stated in the most explicit terms to them that they should confine their investigation to the effects of that injury in causing his death, and should leave out of view any consideration of his prior sickness, if they believed that the efficient cause of his death was the negligence charged in the petition. Under the rule above quoted, these two instructions supplied a full and complete view of the applicatory law to the triers of the fact. If there was any omission or imperfection in the instruction given for the respondent, it was supplemented by the perfect and complete instruction given at the request of appellant.

This assignment of error is therefore overruled.

Appellant complains of instruction numbered 5, given on behalf of respondent, wherein the court submitted to the jury the question of whether or not the car upon which deceased husband desired to embark, stopped a reasonable time to permit Mm to do so with safety. Appellant’s contention being, that there was no evidence to show that the deceased “waited an unreasonable time before attempting’ to board the car.” This instruction simply stated the converse of the theory on which appellant’s action was predicated, which was that the car started prematurely, and appellant submitted that issue to the jury as one of the elements of the negligence attributed to respondent, and in other instructions appellant set forth the definition of the degree of care to be observed by respondents with respect to persons desiring to become passengers on its line. We are therefore unable to concur in the objection urged by appellant to instruction numbered 5.

III.

Another point made by appellant is that during the course of the argument the attorney for respondent stated in substance that money was paid to her by an insurer upon the statement that her husband had died of malaria. That statement was objected to by appellant’s attorney, and the court stated to the jury that “there was no payment of money shown by the record,” and that this was a “correction by the court of the statement of the counsel.” Appellant did not except to the action of the court in refusing to further reprimand the counsel than by its said corrective statement. This assignment of error presents nothing for review. [Torreyson v. United Railways, 246 Mo. l. c. 706.]

Appellant finally urges that the court erred in not sustaining her challenge to juror Foshett. This juror on his voir dire examination stated that he knew an officer of the company, Captain McCulloch, for over thirty-five years, and that their relations were very friendly. When this had been brought out by appellant’s attorney, and. the further fact that the juror would have that feeling to contend ag’ainst in rendering a verdict, although he would try to be fair in so doing, the court asked him, and he answered the following questions.

.“By the Court: Q. Of course you realize that Capt. McCulloch is not the defendant here? A. Well, I recognize him as an officer of the company.
“Q. Would the fact that you happen to know him intimately be any reason why you cannot sit here as a juror and he sworn to hear the testimony impartially' and weigh it as between the testimony on the one side and on the other, and then listen to the instructions of the court and decide the case according to that evidence that you have heard and in accordance with the instructions of the court, disregarding any acquaintance you may have with either side? A. I surely would.
‘ ‘ The Court: The challenge is overruled. ’ ’

It will he perceived that while the juror candidly admitted his friendship for Capt. McCulloch, he also stated that fact would not influence his judgment in the consideration of the case, but that he would he guided by the weight of the evidence and the instruction of .the court. We think there was no error in overruling the challenge to this juror. [McManama v. Railroad, 175 Mo. App. 1. c. 48-49, and cases cited.]

Appellant finally complains that respondent was permitted to introduce its claim-agent, who testified as to the absence of any report to the heads of the department of the respondent company of any accident to appellant’s husband, and the custom and due course of business requiring such reports in all cases of accidents for the information of the managing officers of the respondent. This evidence had no probative force in disproof of the occurrence of the injury. Its only relevancy was to shed light upon the conduct of respondent in failing to take steps which prudence would have suggested if it had been informed of the happening of the accident, and to rehut the unfavorable inferenees which might have been drawn from the subsequent conduct of respondent. [1 "Wigmore on Evidence, sec. 286.] We do not think its reception was reversible error.

A careful consideration of the record in this case discloses that the issues were presented fully in well-drawn instructions, prepared for appellant and given by the court. The jury, after weighing the evidence, reached the conclusion that appellant had failed to establish the cause of' action alleged. With their conclusions, as to the weight of the evidence, we have nothing to do, provided they were arrived at, as we have found, without prejudicial error intervening at the trial.

The judgment in this case is therefore affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. ALBERT ZEHNDER et al. v. WILLIAM R. ROBERTSON et al., Judges of the Springfield Court of Appeals.
    In Banc,
    December 19, 1914.
    1. CERTIORARI: Conflict in Opinions. Certiorari may be used to bring to tbe Supreme Court a case in wbicb a Court of Appeals bas rendered an opinion in conflict with tbe last previous decision of tbe Supreme Court, whether that last decision be right or wrong.
    2. LOCAL OPTION LAW: Information: Allegation of Adoption in County. An information, attempting to charge a violation of tbe Local Option Law, is not' sufficient unless it charges both that tbe law bas been adopted and is in force; nor would it be sufficient if it charged only that it bad been adopted, for it may have been adopted and never put into force for lack of the necessary statutory notice. But if it charges that tbe law “was in full force and effect” • in tbe county where the offense was committed, designating it by article and chapter, it charges that it had been adopted and was in force, for it could not well be in full force and effect unless it had been adopted.
    3. -: -: Conflict in Opinions: Certiorari. The last previous decision of the Supreme Court, and its previous rules as well, was to the effect that an indictment or information charging a violation of the Local Option Law must charge that the law had been adopted and was in force and effect in the county; and therefore a decision of the Court of Appeals holding that an information charging that the said law was at the time the offense was committed “in full force and effect in the county” was sufficient, was not in conflict with the last previous decision of the Supreme Court on the subject, but in harmony therewith, and its said decision will be upheld upon certiorari.

      Certiorari.

    Writ quashed.

      Frank H. Farris, J. J. Grites and J. A. Watson for relators.
    (1) The right of the relators to invoke this remedy and the right of this court to issue its writ of certiorari is now fully determined, and cannot be questioned. Thomas v. Mead, 36 Mo. 232; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Broaddus, 245 Mo. 123; Curtis v. Sexton, 252 Mo. 221; State ex rel. v. Ellison, 256 Mo. 644. (2) The information in this case was fatally defective; it did not allege that the Local Option Law had been adopted in Phelps county. And that it was a material allegation, and was required to be supported by proof and the holding of the court that the adoption of the law could be presumed or taken by intendment was in conflict with the decisions of this court, and with all of the courts of appeals in Missouri, and overruled in terms the established rule of law as fixed by the opinions of this court and the St. Louis Court of Appeals and the Kansas City Court of Appeals. 22 Cyc. 293; 3 G-reenleaf on Evidence (8 Ed.), par. 10; 1 Bishop’s New Criminal Procedure, pp. 83, 84; 23 Cyc. 222; McLain on Criminal Law, 1232; Cook v. State, 25 Fla. 698; Commonwealth, v. Throckmorton, 32 S. W. (Ky.) 130; Commonwealth v. Boyd, 32 S. W. (Ky.) 132; Commonwealth v. Howe, 32 S. W. (Ky.) 133; Commonwealth v. Shelton, 35 S. W. 128; Norton V. State, 65 Miss. 297; State v. Chambers, 93 N. C. 600; Stewart v. State, 35 Tex. Cr. 391; Alford v. State, 37 Tex. Cr. 386. Every material allegation mnst he pleaded and a material allegation is such as must he proven. State v. Thierauf, 167 Mo. 444; State v. Hagan, 164 Mo. 659; State v. Phelan, 159 Mo. 122; State v. Patterson, 159 Mo. 102; State v. Evans, 128 Mo. 407 ; State v. Rector, 126 Mo. 328. These cases all hold in terms, if not in express words, that an information for a violation of the Local Option Law. must charge that the law had been adopted. State v. Searcy, 39 Mo. App. 399; State v. Hutton, 39 Mo. App. 416; State v. Prather, 41 Mo. App. 458; State v. Hall, 130 Mo. App. 172; State v. Campbell, 137 Mo. App. 108; State v. Snider, 151 Mo. App. 702; State v. Wainwright, 154 Mo. App. 654; State v. Wright, 161 Mo. App. 600; State v. Dugan, 110 Mo. 143; State v. Searcy, 111 Mo. 236.

      Corrie L. Arthur for respondents; G. G. Bland of counsel.
    (1) The rule quoted by relators that ‘ ‘ in every indictment and information every fact necessary to constitute the crime charged must be directly and positively alleged, and nothing can be charged by implication” (19 Cyc., 293) is applicable in its strictness to indictments and informations for a felony. State v. Ferguson, 152 Mo. 92. In misdemeanors less particularity and nicety in describing the offense is required than in felonies. State v. Hogle, 156 Mo. App. 367; State v. Seiheling,- 143 Mo. App. 518; State v. Rowell, 137 Mo. App. 620; State v. Wainwright, 154 Mo. App, 653; State v. Fancher, 71 Mo. 460. (2) The information was sufficient. State v. Dugan, 110 Mo. 138; State v. Searcy, 111 Mo. 236. (3) The opinions of the Springfield Court of Appeals in the two Zehnder cases are in harmony with and are supported by the cases of State v. Campbell, 137 Mo. App. 105, and State v. Gallatin, 161 S. "W. 848. (4) The allegation in respect to the Local Option Law being in force, of necessity includes the fact that it had been adopted, and was, sufficient. State v. Rowell, 137 Mo. App. 620; State v. Iiogie, 156 Mo. App. 336. The allegation is a statement of the ultimate facts, a sequence that followed from an election held under the provisions of article 3, of chapter 63, which resulted against the sale of intoxicating liquors within the boundaries of Phelps county, the’ order of the county court declaring the result of the election, and the publication of the result as required by law. It is a statement of the last in a train of sequences which resulted in the adoption of the law, and the putting it in force throughout the county. It is a statement of sequence which led to the end alleged, and includes all the preceding facts or steps required to put the law in operation. State v. O’Brien, 35 Mont; 482. It certainly included and was equivalent to a statement that the law had been adopted by the people of Phelps county. State v. Campbell, 137 Mo. App. 105; State v. Gallatin, 161 S. W. 848; State v. Brown, 151 Mo. App. 349.
   GRAVES, J.

Certiorari to the Springfield Court of Appeals. To our writ the judges of that court have made due return. From the record before us in the instant case it appears that Albert Zehnder, Adalbert Kolb and Fritz Diir, were convicted in the circuit court of I‘helps county, for the sale of liquor in violation of the Local Option Law, then in force in said county. From this judgment of conviction they appealed to the Springfield Court of Appeals, and in that court the judgment was affirmed as to Zehnder and Kolb, but reversed and remanded as to Diir. The information upon which the defendants in the circuit court were convicted reads:

“Corrie L. Arthur, prosecuting attorney in and for the county of Phelps, in the State of Missouri, informs the court that on the first day of April, 1913, and at all times hereinafter mentioned, the provisions of article 3, chapter 63, Revised Statutes 1909, known as the Local Option Law, was in full force and effect in the aforesaid county of Phelps, and that the defendants thereafter, to-wit, on the fifth day of December, 1913, at and in the said county of Phelps, did directly and indirectly sell intoxicating liquors, to-wit, one pint of beer at and for the sum of ten cents, and one pint of whiskey at and for the sum of ten cents, without then and. there having a dramshop license or other legal authority authorizing them so to do, against the peace and dignity of the State.
“Prosecuting Attorney, Phelps County, Missouri.
“Corrie L. Arthur, prosecuting attorney, being sworn upon his oath, says that the above and foregoing information and the facts therein stated, are true according to his best knowledge, information and belief.
“Subscribed and sworn to before me, the undersigned notary public, this sixth day of December, 1913. ‘ ‘ (Seal) ‘ ‘ Clark C. Bland,
“Notary Public.”

The sufficiency of this information was challenged by motion to quash, motion for new trial and' motion in arrest of judgment in the circuit court, and again challenged in the Court of Appeals, throughout the record there. That court held that the information was sufficient in language and in form, and that the verification thereto was good. This latter question as to the verification, whilst a live one in the Court of Appeals, is not such here. This, for the reason that it is not charged that the ruling of the Court of Appeals upon that matter is in conflict with any ruling of this court. In the instant case it is charged that the ruling of the Court of Appeals as to the sufficiency of the information is in conflict with the ruling of this court in the cases of State v. Dugan, 110 Mo. l. c. 143, and State v. Searcy, 111 Mo. 236. The point made is that the information does not allege the .adoption of the Local Option Law in Phelps county, and that the opinion of the Court of Appeals conflicts with the view of this court in regard to the sufficiency of the information. The issue is therefore sharp and pointed.

I. Counsel for respondents have gone to the different States and present an array of authorities bearing upon the sufficiency of the information in this case. Some of these go to the length that the court will take judicial notice of the adoption of such laws. But in certiorari of the kind and character involved here, we are not really concerned as to what the true rule should be, but are only concerned with what the míe is in Missouri, as established by this court prior to the time the Court of Appeals acted. The purpose of the writ of' certiorari to an inferior appellate court, is to keep their rulings in harmony with our rulings upon the same subject, so that all appellate opinions may speak as with one voice upon any one particular question. It would hardly be expected in this kind of a case that we would quash the Court of Appeals judgment, if it was made clear that they had followed our latest ruling upon the identical question, although our ruling might be wrong. The Constitution requires these courts to follow our latest ruling, and we cannot convict them of error if they so do, whether we were right or wrong.

The sole question therefore is: Did the Springfield Court of Appeals do violence to one of this court’s latest opinions, when it held that this information properly charged the adoption of the Local Option Law in Phelps county?

We are not concerned about there being a more logical or better pronouncement of the law elsewhere. That subject may be more properly urged in some case here regularly in the course of appellate practice. The sole question in this case we take up nest.

II. We are fully satisfied with the former holdings of this court as to what should be stated in an indictment or information under the Local Option Law. In State v. Searcy, 39 Mo. App. l. c. 399, Thompson, J., said:

“We hold that it is sufficient in such a case for the indictment to allege that the act of the Legislature approved April 5, 1887, known as the Local Option Law, has been duly adopted and was in force as the law of the State within the territory within which the offense is laid, at the date of the alleged offense, without reciting in detail the manner in which it was so adopted, which is merely the pleading of evidence. So much of the indictment in the present case as went beyond this may, therefore, be rejected as surplusage; and the fact that it erroneously states the date of the act of the Legislature as April 5,1888, instead of April 5, 1887, is of no importance, since there is but one act by that title and the clerical error is one which corrects itself. ’ ’

This court, through Macearlane, J., in the case of State v. Dugan, 110 Mo. l. c. 143, approved the language used by Judge Thompson. We then said:

“The indictment need only have alleged ‘that the act of the Legislature approved April 5, 1887, known as the Local Option Law, has been adopted, and was in force as the law of the State,’ within the city of Warrensburg at the date of the alleged offense, ‘without reciting in detail the manner in which it was adopted.’ [State v. Searcy, 39 Mo. App. 393; State v. Prather, 41 Mo. App. 455.]”

We again approved this language from Judge Thompson, in the case of State v. Searcy, 111 Mo. 236, where that case reached this court upon a certification of the Court -of Appeals. So that it may be said that this court is committed to the doctrine that the allegations of the information or indictment under the Local Option Law must he such as to aver the adoption of the law in the territory where the crime is committed and that said law was in force in the said territory. The allegation must be broad enough to cover not only the fact that the law had been previously adopted within the territory, but that it was in force therein at the time. This is true for the reason that after the adoption of the law, a notice must be published before it can go into effect. The law might be adopted by a proper vote and yet never be put in force by the proper notice. For this reason the allegation in the indictment or information must be broad enough to cover both ideas, i. e., (1) that the law has been previously adopted, and (2) that it was at the time of the alleged offense, actually in force. This is the Missouri rule as to the requisites of an indictment or information under the Local Option Law, and we see no good reason to depart from the rule. It is one which bespeaks fairness to the defendant, by advising him by the indictment or information just what crime he is called upon to defend. There being several laws under which sellers of liquor may be prosecuted, it is but right that the indictment or information should by appropriate language, indicate the crime intended to be charged.

The question in the case at bar is whether the charge in this information measures up to this rule approved by this court in the cases, supra. It does not in specific terms allege the previous adoption of the Local Option Law in Phelps county. The language of the information is: “On the first day of April, 1913, and at all times hereinafter mentioned, the provisions of ar tide 3, chapter 63, Revised Statutes 1909, known as the Local Option Law, was in full force and effect in the aforesaid county of Phelps.” We think this language is broad enough to make the information good within the approved rule of pleadings in this court. The Court of Appeals so held after a review of our cases, and we think that their ruling was correct, and in nowise conflicts with the cases cited.

The same strictness of pleading in misdemeanors is not required as is required in felonies. This information averred in proper terms that the Local Option Law was in force in Phelps county at the date of the alleged offense. This allegation of said law being in full force and effect includes the idea of its previous adoption. It could not be in full force and effect unless it had been previously adopted. So that we say that the allegation in this information is equivalent to saying that the Local Option Law had been previously adopted in Phelps county, and at the date of the alleged crime, was then in force in said county. If such is the fair interpretation of the language of this information (and we think it is) then the ruling of the Court of Appeals in so holding does no violence to any previously ruled case in this court. With these views it follows that our writ of certiorari heretofore issued in this cause should be quashed as having been improvidently issued. It is so ordered.

All concur; Bond, J., in result only.


author: LAMM, J.

text:
    HAFNER MANUFACTURING COMPANY, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    December 19, 1914.
    1. FORCIBLE ENTRY AND DETAINER: Title. The rule that in actions of forcible entry and detainer title is not an issue, is to be taken in the sense that title is not tried out as a determinative factor. It does not mean that title is not to be considered for any purpose.

      2. -: -: No Exception. Where no exception was saved to the ruling of the court admitting a deed describing the property in suit in an action of forcible entry and detainer brought against the city which claims the land is a part of a public wharf “on the ground that it is offered solely for the purpose of showing that the property in question is part of the public wharf,” it will not be held on appeal that error was committed in admitting said deed in evidence. On appeal only exceptions ruled in the trial court are considered.
    3. OBJECTIONS: General. An objection to proffered evidence that it is incompetent, irrelevant and immaterial is of no sensible use in the administration of justice, and is unavailing as an assignment of error.
    4. -: -: Ordinance: Violative of Constitution and Statutes. An objection to the admission of an ordinance in evidence to the effect that it is violative of the Constitution and laws of the State, without any designation of what provision of the Constitution or what specific law it contravenes, is too general and vague.
    5. FORCIBLE ENTRY AND DETAINER: Title: Circumstances: Judgment in Ejectment. In forcible entry and detainer, the question of lawful possession and unlawful ouster, and not the title to the land, is the matter for adjudication; but what constitutes possession must depend upon circumstances. The records in an ejectment suit, brought by plaintiffs ancestor against the city, in which it was held that a certain tract, of land, of which that in suit is a part, was a public wharf belonging to the city, though said part has never been reduced to actual wharf uses, may be offered in evidence for the purpose of showing the character of possession of the plaintiff in the land in suit, since the purposes for which it has been used has an influence in arriving at common-sense conclusions as to whether or not plaintiff has been in possession. If the judgment record in the ejectment suit is not used as a basis for a finding in the unlawful detainer suit, that is, the case is not made to turn on title, the evidence can do no harm.
    6. PUBLIC WHARF: Is Public Highway. A public wharf on a navigable stream, connected with public streets and in a sense an extension of such streets, is in the eyes of the law a public highway; and the rights of the city in and its duties towards it are ahin to its rights and duties towards its public streets.
    7. -: Forcible Entry: Removal of Obstruction. No person has a right to the exclusive use of a tract of land owned and dedicated by the city to public use as a wharf, any more than he has a right to the exclusive use of a public street; and the city has the right, when authorized thereto by its charter and ordinances, to remove any obstructions to such general public use of the wharf tract placed thereon by one asserting an exclusive use thereto.
    8. -: -: Lawfully Possessed. A complainant in a suit of forcible entry and detainer is bound to make proof that he was lawfully possessed of the premises and that defendant unlawfully entered into and detained the same; and “lawfully possessed” is used in the sense of “peaceable possession.” But peaceable possession does not mean possession obtained by force and a strong arm, or in tortious violation of the owner’s right, nor does it mean a possession that is a mere sham.
    9. -: -: -: After Suit in Ejectment. One cannot be said to be in lawful possession of land, after it has been adjudged by a suit-in ejectment that his ancestor was not the owner, but that it was a part of a tract belonging to the city and dedicated to public use for wharf purposes, who piled lumber thereon, and then before the city undertook to remove obstructions therefrom and in contemplation thereof removed all his lumber except a few weather-stained boards and some stakes used in piling.
    10. -: -: Unlawful Detainer: City. It cannot be said that a municipal corporation, which, in the exercise of its charter and ordinance right to remove obstructions from public wharfs and streets, removes a few weather-stained plank and piling stakes from a part of a tract of land which has been adjudged by suit in ejectment to belong to it and has by it been dedicated to a public wharf, has thereby “unía ¡vfully entered into and detained” said premises.
    11. -: -: -: -: Improvement. Nor is the question of complainant’s lawful possession or the city’s unlawful entrance affected by the fact that the city had not improved so much of the public wharf as complainant claims, but had improved the balance.
    12. --: -: Selling Complainant’s Personal Property Thereon. Nor is the action of forcible entry and detainer to be affected in any wise by the fact that the citj in the exercise of its municipal right to remove obstruction; from a public wharf, in entering upon the land to remove the obstructions seized certain lumber belonging to complain; at and sold it at public auction. Damages on that score cannot be awarded in such a suit.
    Appeal from St. Louis City Circuit Court. — Hon. William M. Kinsey, Judge.

      Affirmed.

      E. P. Johnson and Richard A. Jones for appellant.
    (1) The property in suit directly adjoining on the east other property of complainant, was in the .peaceable, undisputed and uninterrupted possession of complainant for some six years immediately preceding and up to the time it was dispossessed by defendant. November 21, 1910. The property is unimproved, neither paved nor in any manner fitted for wharf purposes and used by complainant as a lumber yard. Defendant has never sought to, or in any manner used the property except, as is to be derived from its evidence, for a period beginning in 1891 and terminating prior to the occupancy by complainant, by leasing to individuals for occupancy and use in the conduct of private business. Under such conditions, and while complainant was in peaceable and undisturbed possession of this property and had been for a long period of years, by summary action, without judicial process or proceeding and against the protest of complainant, defendant, by its city marshal, dispossessed complainant, and confiscated and sold lumber, the property of complainant, which it found located on such real estate. Such action was without legal authority and in violation of the law of this State. R. S. 1909, secs. 7655, 7656; Willis v. Stevens, 24 Mo. App. 494, The action of the city marshal in entering upon and taking possession of such property was directed and claimed to be authorized by the mayor of defendant, acting under ordinance No. 25363 of defendant. It was in pursuance of demand theretofore made by the law department of the defendant, that complainant “remove from, vacate and surrender possession of that property, and that unless this is done forthwith, proper proceedings will be brought to secure the possession and to assess fines for the occupation of said property.” The money received from the sale by the defendant, of the lumber on the property, was, after payment of cost of sale, turned into and retained in its city treasury. That the action taken in such regard on the part of defendant' constituted a forcible entry and detainer, is clear, and that such character of action may be maintained against a municipal corporation is determined by the authorities. Dooley v. Kansas City, 84 Mo. 444; Eclwardsville v. Barnsback, 66 111. App. 381; Oklahoma City v. Hill, 4 Okla. 529; Raines v. Oshkosh, 14 Wis. 372. That complainant was in possession of the property at the time defendant entered thereon, and that defendant retained and was in possession at the time suit was brought and thereafter, are facts established without contradiction. Indeed, prior to entry, defendant, through its law department, demanded that complainant remove from said real estate, vacate and surrender possession thereof, and the order of removal afterwards signed by the mayor states: “that the following portion of the public wharf is obstructed, occupied, encroached upon and used by the Hafner Manufacturing Company as a lumber yard.” Concerning defendant’s possession at the time of filing suit it is alleged in its answer that it was at such time, and for more than fifty years prior thereto, in possession of such property.

      William E. Baird and E. P. Griffin for respondent.
    The character of possession claimed by the plaintiff in an action of forcible entry and detainer must be such as would, if uninterrupted, ripen into adverse possession. And, as there can be no adverse possession of public property against a municipality in Missouri, the plaintiff in this case could not, and did not, have any such possession as to support this action. The statutes provide that nothing in any Statute of Limitations shall extend to any land given, granted, sequestered or appropriated to public use. This has been the law since August 1,1866; R. S. 1909, sec. 1886; State ex reí. v. Vandalia, 119 Mo. App. 406; Rochester v. Mining Co., 86 Mo. App. 447; St. Louis v. Railroad, 114 Mo. 13; Brown v. Carthage, 128 Mo. 10; Wright v. Doniphan, 69 Mo. 601; Dillon on Municipal Corporations (5 Ed.), secs. 1194,1189. Not even the acceptance by the city of taxes from one claiming the assessed land by adverse possession will estop the city from asserting its claim thereto. St. Louis v. Gorman, 29 Mo. 593; Wright v. Doniphan, 69 Mo. 601. To the same general effect are the following: Railroad v. Totman, 149 Mo. 660; Columbia v. Bright, 179 Mo. 441; Railroad v. Baker, 183 Mo. 312; State ex rel. v. Road Co., 207 Mo. 85. (2) The public wharf is to be legally regarded as a public highway. This is well established. Backus v. Detroit, 49 Mich. 110; Matter of Brooklyn, 73 N. Y. 179; Woodruff v. Havemeyer, 106 N. Y. 129; Ice Co. v. Railroad, 176 N. Y. 408; Buffalo v. Railroad, 190 N. Y. 84; Steamboat Co. v. Steamboat Co., 109 U. S. 672; 1 Elliott on Roads and Streets (3 Ed.), sec. 1; Eads v. Wooldridge, 27 Mo. 251. (3) Under the statute relating to forcible entry and detainer, this action can be brought only when the plaintiff was lawfully possessed of the premises and the defendant unlawfully entered into same. R. S. 1909, sec. 7668. The so-called possession of the plaintiff in this case is tortious, and not merely constructively, but actually so. Michau v. Walsh, 6 Mo. 346. (4) This action cannot be maintained against the municipality for restitution of possession of public property because there was not and could not be any such entry by the defendant as is requisite to the maintenance of this action. Railroad v. Johnson, 119 U. S. 608; R. S. 1909, secs. 7655 and 7656. The statute is intended to prevent conflicts between individuals over private property, and not the assertion of the public right by public officials over public property by authority of law. Sitton v. Sapp, 62 Mo. App. 204; Craig v. Donnelly, 28 Mo. App. 342; 19 Cyc., 1117, 1137 and 1138.' (5) Lumber piled and maintained by an individual on the highway constitutes a nuisance, and, under the provisions of the St. Louis Charter, the mayor may summarily cause its removal. And the force involved in entering upon such property and removing such nuisance is not such as to constitute the offense of forcible entry, but the action of forcible entry and detainer is intended only to preserve the peace by preventing entry by private individuals on possession of other private individuals where entry is not given by law, and not to prevent entry by public officials on public property by authority of law. The piling of lumber on the public property constituted a nuisance. 2 Dillon, Mun. Corp. (4 Ed.), secs. 660, 680; State v. Campbell, 80 Mo. App. 110; Seibert v. Railroad, 188 Mo. 657; Loth v. Theater Co., 197 Mo. 328; 1 Dillon, Mun. Corp. (4 Ed.), secs. 95, 374, note 3; Charter, art. 3, sec. 26, cl. 6; Compton v. Bridge Co., 62 Tex. 715; Williams v. St. Louis, 120 Mo. 402. (6) Where the purported possession on which the action of forcible entry and detainer is based was obtained for the purpose of imposing on another party the burden of bringing an action of ejectment, as in the present case, then the possession is not such as will support the action of forcible entry and detainer. DeGraw v. Prior, 60 Mo. 56; Underwood v. Caruthersville, 146 Mo. App. 288. (7) While it is true that title is not in issue in a forcible entry and detainer suit, yet deeds or other evidence of title are admissible to show the character, nature or extent of the possession in controversy. Therefore, the wharf deed as well as the city ordinances enacted in 1852 and in 1864, respectively, were competent evidence. They were also competent for the purpose of showing that the property in question was part of the public wharf of the city of 'St. Louis. 19 Cyc., 1165; Moore v. Shoop, 123 Mo. App. 407.
   LAMM, J.

Forcible entry and detainer. Plaintiff, cast below on a trial to the merits, appeals. Plaintiff corporation owned a block of ground on Dock street abutting on the public wharf in North St. Louis. On said block was situate its manufacturing plant. If a certain two of the parallel lines of that block were produced to the Mississippi River, they include a part of said wharf. On a part of the land lying between said lines so produced, plaintiff had for some time piled lumber for use in its manufacturing business. It seems this lumber, of the value of, say, $40,000, was piled there by leave of the Hafner heirs, who, in turn, as owners of the stock in plaintiff corporation, controlled the latter.

At a certain time in the late summer and fall of 1910, defendant city, acting through its mayor, its harbor and wharf commissioner and its law department, served notice on plaintiff to remove said lumber — this by virtue of certain ordinances. On failure of plaintiff to do so (which happened) the city marshal was ordered to remove the same. Thereupon that officer, in a writing aptly referring by description to the part of the wharf so obstructed, to the municipal code and pertinent ordinances, gave plaintiff notice to remove the lumber piles within ten days, or in default that he (the marshal) would remove them. It seems this notice had been preceded by negotiations, for, say, two months, looking to the clearing away of the alleged obstructions and that when the marshal finally served notice, plaintiff asked to be further notified of the exact day the officer would appear on the scene and began removing the lumber — this evidently for the purpose of entering a verbal protest, and thereby laying a supposed foundation for projected litigation. Accordingly the marshal, by word of mouth, gave plaintiff notice when he appeared with his men and teams, and then and there plaintiff protested against his contemplated action.

Going hack a little, it will do to say that in the prior negotiations between the city officers and plaintiff, the latter asserted “color of title” and the right to possession. Moreover, as the ordinance of the city provided for the seizure and sale of material wrongfully stored on wharf property and constituting an obstruction, plaintiff, having a large amount of lumber in jeopardy, concluded not to put all its eggs in one basket. Accordingly, immediately before the marshal came on the scene to remove the lumber it seized time by the forelock and removed substantially all of any value. It left a few ‘ ‘ top boards ’ ’ and some stakes used in piling, and we get the impression these were left for the very purpose of testing plaintiff’s rights without, at the selfsame stroke, putting too much at hazard. The marshal removed the lumber so left and after due notice sold it for the rise of $50 on due advertisement at public auction. One of plaintiff’s officers estimated the real value of the lumber so sold at the rise of $300. Having cleared off the wharf, the marshal left the premises vacant and so. they are to this day. On the same day the marshal began remov-' ing the lumber, or presently and while it was in the course of being removed, plaintiff began this action in forcible entry and detainer before a justice of the peace, alleging -it was “lawfully possessed” of the premises, describing them, and that on the 21st day of November, 1910, while it was so “in lawful possession thereof, defendant city forcibly entered into the possession of the premises and forcibly detains possession from plaintiff to its damage,” etc., wherefore plaintiff prays “judgment of restitution” and for its damag-es including the value of the monthly rents and profits, etc.

The cause was taken by certiorari to the circuit court, and there defendant filed an answer admitting it was a municipal corporation, denying every other allegation in the complaint and its guilt in the manner and form, charged. Defendant then, by affirmative allegations, asserted its charter power to establish, open and regulate public wharfs; that in pursuance of that power', by proper ordinances, it had established such wharfs and was in control and possession of them; that the property described in the complaint was part and parcel of the property established by defendant as a public wharf and of which defendant had had possession for fifty years prior to the suit as part of its said wharf. The answer next went on in detail to set up the power of defendant city to prevent and abate nuisances by ordinances, to remove all obstructions and encumbrances from public property and specially pleaded certain ordinances making persons guilty of a misdemeanor who place upon any wharf any nuisance, encumbrance or impediment, requiring the same to be removed by such parties and providing that if they are not removed within the time designated by a named officer, to-wit, the harbor and wharf commissioner, such parties shall, as said, be guilty of a misdemeanor. Pleading also another ordinance leveled against the occupancy of and encroachment upon or obstruction of public wharfs, and providing for the removal of such obstructions, averring that plaintiff unlawfully placed upon a certain part of defendant’s public wharf, to-wit, the premises described in the complaint, obstructions consisting of piles of lumber and thereby creating a nuisance upon such public wharf, to the hindrance and detriment of the public in its use of the same. The answer went on to justify the removal of the lumber by averring that defendant acted in strict compliance with the methods prescribed in the last-mentioned ordinance, number 25363, averring that complainant could not have any lawful right or use of said public wharf or any lawful possession thereof as against defendant, but that it had, in so obstructing and encumbering said public wharf, become and was a wrongdoer and as such was subject to prosecution and conviction as a misdemeanant.

On pleadings thus outlined, the cause was tried without a jury. Sufficiently more of the record to understandingly dispose of points we deem material, will appear in connection with rulings on such points.

We state questions in our own-way.

I. O.f rulings on evidence.

(a) In making its case, plaintiff introduced a deed dated in 1881 from Branch and Gartside to Joseph Hafner (said Joseph being the ancestor of the Hafner heirs hereinbefore referred to) to the locus in quo and other land; and another from one Butler, trustee, to said Hafner, dated in 1879. This latter deed evidenced the foreclosure of a deed of trust given by two persons named Glasgow. It conveyed property (we take to be the block on which plaintiff’s plant is situate) described as running to the wharf, together with “all accretions to the same belonging, east thereof,” which quoted clause covers the locus in quo. These deeds were offered and admitted to show what plaintiff’s counsel called at the time “possession” and “color of title,” “not the right to this property.” Said deeds with plats, notices referred to hereinbefore, and oral evidence relating to the permission given by the Hafner heirs to plaintiff corporation to pile lumber on the premises, and the actual piling of such lumber thereon and the removal of the same — all as hereinbefore set forth — in a nutshell constitute the facts upon which plaintiff relied for recovery. It will be of interest to note, as presently shown, that defendant itself holds under the Glasgows and others.

When defendant came to make its own' case, it offered a deed dated in January, 1853, executed by, to-wit: “Mary L. Tyler, H. F. Christy, Susan Preston Christy, ¥m. A. Pendleton, M. A. Pendleton, Thos. H. West, Martha West, William G. Ewing, John Biddle, By Louis G. Picot, his atty. in fact; J. T. Sweringen, M. J. Sweringen, L. A. Benoist, G. W. Goode, Francis S'. M. Goode, ¥m. H. Glasgow, Mary F. Glasgow, D. D. Mitchel, Martha E. Mitchell, M. N. Taylor, Edwd. C. Wills, Sam’l B. Churchill, Amelia C. Churchill, Orleana C. Schaumburg, Martha A. Willis, Harriet M. Dean, Thos. A. Wright, John R. Shepley, V. Graham, C. Graham, Ch. Chambers, James Chambers, Mary Harney, L. M. Kennett, mayor of the city of St. Louis; William Waddingham, Louis V. Bogy, Jno. Maguire, H. Yon Puhl, L. K. Barret, William F. Wright, E. F. Wright, Walker R. Carter, Rebecca A. Carter, Walker R. Carter, executors of H. M. Shreve, deceased; Thomas L. Snead, Harriet Y. Snead, Dan’l D. Page.”

These grantors describe themselves as owners and part owners of the real estate conveyed; said deed is known as “the dedication deed of 1853.” It conveyed to the city of St. Louis the locus in quo, together with much other real property, for the purpose of a “public wharf for said city.” ,

We may as well state at this point that this dedication deed, as a foundation of the city’s right to its wharf, has been attacked from various angles by some of the granting parties (for instance, the Sweringens) and their descendants, grantees, and subgrantees, but has been uniformly sustained against all attacks as a valid, operative instrument for the wharf purpose blazoned forth therein in the following cases, among others: City of St. Louis v. Wiggins Ferry Co., 88 Mo. Mo. 615; Sweringen v. St. Louis, 151 Mo. 348; Hafner v. St. Louis, 161 Mo. 34; Troll v. City of St. Louis, 257 Mo. 626, and Troll v. City of St. Louis, 257 Mo. 765. These Troll cases in some of their phases involve the same deed of dedication and the' same wharf.

The Hafner case, supra, was ejectment for the land involved here. In that case the plaintiffs were the very heirs of Hafner under whom plaintiff corporation now claims a permissive license to pile lumber, and therein the city filed an equitable answer. The issues being found for the city in that case, the plaintiff in the instant case confronts the proposition of res adjudicata, despite the fact the form of the former action was ejectment. [Preston v. Rickets, 91 Mo. 320.]

When defendant offered its said dedication deed the record shows as follows:

“Objected to by complainant as incompetent and immaterial and on the ground that the grantors had no title to the premises in suit and title is not an issue in this case.
“The Court: The objection is overruled on the ground that it is offered, as I understand it, solely for the purpose of showing that the property in question is part of the public wharf.”

It will be observed no exception was taken to this ruling.

A main part of plaintiff’s brief is devoted to discussing the general rule of law that in actions under the forcible-entry-and-detainer statute title is not an issue. That generalization must be taken in the sense that title is not tried out as a determinative factor, and with the observation that it, like other general rules, has its modifications made necessary to meet the full ends of justice in each case. Reference thereto will be made presently. Plaintiff complains of the ruling admitting said deed. For present purposes it is sufficient to say that on the record quoted, supra, as said, no exception was saved to the ruling of the court on the objection; hence the trite doctrine applies that no assignment of error can be predicated on appeal of such objection. On appeal only exceptions ruled below concern us. [R. S. 1909, sec. 2081.] Accordingly the point falls out of the case, and is disallowed to plaintiff. This ruling is somewhat technical, but is softened to us for that plaintiff itself read its own deeds into the record and should not blow hot and blow cold on the same proposition. [Stumpe v. Kopp, 201 Mo. l. c. 418-9.]

(b) Complaint is made that the court permitted defendant city, over plaintiff’s objection, to introduce ordinances relating* to establishing wharfs, etc., to-wit, ordinance No. 2932 and ordinance No. 5403. It will not be necessary to set them forth further than to say they looked to the improvement of the wharfs so established and under them the one in question was improved in part and used as a wharf.

To the offer of those ordinances, the record shows the following stock objection:' “Objected to by complainant as mcompetent, irrelevant and mmaterial.” We think the time has come when for the convenience of apt designation this stereotyped objection may, without lowering the dignity of our case, be termed the 3-i’s. On a similar ground we may say these “i’s,” like the mere germinating eyes of the potato, see not, and are of little or no sensible use in the administration of justice. We have been so lately over the philosophy of the matter in State ex rel. v. Diemer, 255 Mo. l. c. 346 et seq., that new exposition is excessive exposition. We can add nothing worth while to what is said in that case. Whenever called on to consider such unreasoned and elusively expansive form of objection this court has taken pains to give reasons why it is generally unavailing as an assignment of error when overruled nisi. We disallow the point to plaintiff.

(c) For the purpose of showing the occupancy of the wharf on the part of the city, and the character of its possession, certain of its acts in dealing with what was deemed public property were admitted; for instance, certain leases and a certain ordinance. This evidence was challenged as “irrelevant and immaterial.” The exception saved to the court’s ruling on such objection cannot be considered. This for reasons given in paragraph b, supra.

(d) For like reasons the same disposition must he made of exceptions saved by plaintiff to introducing a letter from Harbor and Wharf Commissioner Whyte, of date August 10, 1910, and an order from Acting Mayor Rombaner to the marshal, of date August 1, 1910.

(e) D.efendant offered an ordinance, No. 25653, and an exception was saved to overruling an objection to the same. We copy enough of the record to show the scope of the objection, thus:

“Objected to by complainant as incompetent, irrelevant and immaterial.
“The Court: Your objection goes to the validity of all the proceedings by the city, as I understand you?
“Complainant’s Counsel: It is in contravention of all the laws of the State and therefore void. In contravention of the law that no person shall enter upon the land of another; and this property is real estate. We further object on the ground that the ordinance is unconstitutional, because it is forbidden by the Constitution to enact a law except in pursuance of the Constitution, and laws of the State.”

Attending to that record, we observe: The first ground of objection has been already ruled upon. The last is of no efficacy because it is too general and vague. In appealing to the Constitution and laws to persuade a ruling on the admission of evidence, it will not do to make a wholesale appeal to the whole body of the Constitution and the whole body of the law. [Vide, arguendo, Bragg v. Met. St. Ry. Co., 192 Mo. l. c. 345.] But counsel must put their finger on the specific provision of the Constitution and the specific law that is violated by the ordinance objected to. We have uniformly ruled as indicated in refusing to take cognizance of constitutional points thus vaguely outlined below in general objections to evidence and in motions for new trials, and on questions of jurisdiction. The objection, to be of practical use, should be certain and specific.

(f) Defendant offered in evidence the files and record of the case of Hafner et al. v. St. Louis. (Nota bene:. This was the ejectment suit tried in the circuit court of St. Louis on an equitable answer, decided against those persons under whom the present plaintiff claims a permissive right, and affirmed here on appeal as hereinbefore set forth.) There are grounds of objection to the introduction of these files and records we have already disposed of. Pretermitting’ those, we come to the following additional ground: “Further objected to on the ground that this is a forcible entry and detainer suit, and the defendant now seeks to raise an inquiry as to the title — to go into the question of title — and seeks to establish title by this offer. ’ ’

Attending to that objection, we say this: It was admitted in open court that the deed of dedication (the 1853 deed) placed the property in dispute within the land descriptions of that deed and fixed the western boundary of the wharf along the west line of said property. There is undisputed evidence that the city for two generations or so had possession — a possession it held against hostile attacks from any quarter, as indicated in cases cited, supra. So, the instant ease runs on the undisputed record that while the city had not improved the entire wharf tract as a wharf, yet it had improved (and for half a century used) a public wharf running longitudinally along its eastern part next to the Mississippi River, leaving a ribbon of it on the west unimproved as yet. The record carries abundant proof of the further fact that the trial court time after time disavowed any intention to try the question of title between plaintiff and defendant, as title, but admitted the dedication deed, ordinances, various leases, and acts of the city (not on the question of title, but) to characterize the city’s possession as that of a public wharf for the benefit of all persons needing one for shipping by water. Now, “What will constitute a possession must depend on circumstances.” [Eads v. Wooldridge, 27 Mo. l. c. 254.] “The-purposes,” says Scott, J., in that case, “for which a tenement is used has its influence in ascertaining the acts and conduct which will determine whether or not there is a possession of it.” The proof tendered here constituted, when properly limited, the ‘ ‘ circumstances. ’ ’ Accordingly, when the above objection was made to the files and record in the Hafner ejectment case, defendant at once limited the object of its offer of evidence in a way to subserve a proper purpose and to exclude it as a tender on an issue of title, as title, thus:

“Defendant’s Counsel: The files in this case are offered for the purpose of showing that the dedication deed offered in evidence by the city and the two deeds offered by the plaintiff were passed upon and construed by the Supreme Court; for the purpose of showing the character of the possession of the plaintiff of the land in suit.”

On that limited offer the court overruled the objection, and we think rightly so. We will recur to the subject-matter of “title” under another head presently ; for the present we will say this: It would seem an essential prerequisite in doing justice between plaintiff and defendant from a standpoint of common sense to first ascertain whether the locus in quo was a part of the public wharf, the public commons of the city for wharfage purposes. It would be quite out of fche question to deal intelligently with the matter if that fact were left dark. There is no indication in the case that the court used the evidence for an alleged improper purpose, to-wit, by making it the basis of an improper finding; for instance, to make the case turn only on title. The evidence did plaintiff no harm, as we see it, hence the point is disallowed.

Material complaints relating to errors in the introduction of evidence having been sufficiently disposed of, we confront a group of questions, given by us a composite head, thus:

II. Of the merits (and herein of the instructions).

(a) It may be taken as acceptable doctrine that a public wharf on a navigable stream connected, as here, with public streets and in a sense an extension of such streets, is in the eye of the law a public highway. Its character is similar. The right to the common use of it in- the public is similar, and in a very just sense, the right of the city in and its duty toward it are akin to its rights and duties toward its public streets. The authorities cited by respondent’s counsel broadly sustain these propositions.

In this view of it, it becomes important to notice that this corporate plaintiff by this suit does not assert a right to use the public wharf tract as other citizens are entitled to use it, to-wit, for purposes of commercial traffic. Contra, it asserts a dominant and preclusive use to part of it. It brings a suit not to assert the right 'to a common public use, but for the purpose of being put back into an exclusive possession of the locus in quo. It stands, then, in the same predicament as an individual would be in who desired the aid of the law to put him back in control and possession of an appreciable part of a public street — a claim inviting jealous scrutiny on its very face.

If in analyzing and defining the term “law” from one angle, Mr. Justice Holmes was correct in saying it was “a statement of the circumstances in which the public force will be brought to bear on men through the courts,” — we say if that be correct, then the application of force through the courts to put plaintiff into exclusive possession of a part and parcel of a tract dedicated to a public wharf should be judicially eyed askance or, better still, well looked to in advance.

(b) Something is said, arguendo, to the effect that the city, while it improved part of the dedicated wharf tract, did not improve the part in dispute; hence by that token some virtue goes out of defendant’s case, while an increment of virtue is (by the same token) added to plaintiff’s; but it is not worth while to cite authorities to sustain the proposition that defendant city has legislative and ministerial discretions in the particular of wharf improvement. It is not obliged to improve the whole tract in any given period of time, whether such improvement be necessary or not, and whether it have present financial ability to make such improvement or not. The improvement or nonimprovement of the wharf is, then, no concern of plaintiff in this suit, and the fact neither adds to nor subtracts from its rights an iota. Therefore, the case should not be allowed to turn on that inconsequent feature.

(c) Ordinance No. 25365, read into the case by defendant, is too long to copy here. The substance of tl^ material part of it, in small compass, was to provide a workable and common-sense plan for clearing away obstructions on wharfs by compelling guilty parties to remove them, making them guilty of misdemeanors and providing a scheme for summary removal in case such parties fail to act.on notice given. As pointed out heretofore, the city removed the lumber culls and sold them under the provisions of that ordinance. Something is said, as we get the run of the argument, to the effect that such disposition of plaintiff’s lumber was illegal, and not in accord with due process of law, etc. As to that we say, we have not overlooked the abundant caution whereby plaintiff left enough of the refuse or weather-stained lumber on the ground to mark the point and spot with a pin prick, as it were, so as to save its supposed future rights in contemplated litigation. But that caution must go unrewarded in this case for two reasons, thus:

In the first place, this is not a suit to test out the ■right to take possession of and sell plaintiff’s lumber. No damages on that score are either asked or could be awarded on forcible entry and detainer. If, therefore, plaintiff has a right of action for damages for wrongful conversion of its lumber (on which we say nothing-one way or the other) its remedy lies down another road.

In the next place, the instant case does not justify a discussion of the established doctrine of the law allowing municipal corporations to abate nuisances , and requiring- officials charged with the duty of removing obstructions on wharfs and in public streets to perform that duty. A city would be in hard lines indeed were it- to stand to be mulcted in damages to individuals for negligence in that behalf, on one hand, and disarmed of the power to prevent the occurrence of such damages by removing obstructions, on the other. Assuming for the purpose of the case that the locus was a public wharf and that the right to remove obstructions, wrongfully there, is akin to the right to remove them from public streets, then the following pronouncement of the Supreme Court of Texas in Compton v. Waco Bridge Co., 62 Tex. 715, asserts sensible doctrine:

“To force the municipal authorities to a suit in the courts to secure the removal of obstructions from the streets, would, to a considerable extent, defeat the objects and purposes contemplated in the creation of municipal governments.”

(d) It is argued for appellant that the case was tried throughout on an erroneous theory, to-wit, on the theory of trying title as if it were a case in ejectment, this in the teeth of the statute forbidding an inquiry into the “merits of the title” (R. S. 1909, sec. 7677), but permitting “evidence for proof of rights under derivative titles, provided for by this article,” the forcible entry and unlawful detainer statute. [R. S. 1909, sec. 7690.]

In ruling propositions advanced, another statute must not be lost sight of, to-wit, section 7668, ibicl. That section contemplated that a complainant under the forcible entry statute is bound to make proof “that he was lawfully possessed of the premises,” and that “the defendant unlawfully entered into and detained” the same. It may be conceded that the words “lawfully possessed” are used in a restrictive sense, to-wit, in the sense of meaning peaceable possession. [Krevet v. Meyer, 24 Mo. l. c. 110; Beeler v. Cardwell, 29 Mo. l. c. 74; Michau v. Walsh, 6 Mo. l. c. 350.] But there is still left to be sharply reckoned with, the word “peaceable.” That word is a broad and flexible one in meaning and takes on color from the facts. Does it mean, for example, that if I return to my home in the nighttime after a temporary absence and find a burglar or other trespasser in what he chooses to call complete and quiet possession that Ms possession is peaceable and that I am forced to an action of ejectment to get in? Suppose B, the domestic servant of A, locks the outside door on A of a night, must A go to law about it? In other words, is a tortious possession a “peaceable” one within the purview of that section? Take another inquiry step. The gist of the action being an illegal use of force by defendant in making its entry on the premises, and the object of the statute being to keep the peace and keep persons from taking the law into their own hands, can a municipal corporation in the exercise of its charter and ordinance right to remove obstructions from public wharfs and streets and thereby abate nuisances, be brought within the purview of the statute in so doing?

It is not amiss to remind ourselves again that defendant did not remove plaintiff from the premises in so far as plaintiff was claiming a right common to all citizens under proper regulation to use a public wharf. To the contrary, plaintiff was left to share in the common joint use in the wharf as a wharf. All defendant did was to assert the public use and to remove impediments and obstructions standing in the way of that use. We are unable to see that what defendant did was calculated to break the peace, or was any illegal show of force, or that it detains the property unlawfully as against plaintiff.

The premises'all in mind, we are of opinion appellant’s contention that the court made the case turn on mere title is not well made. This because:

(1) In the first place, the court in instructions as well as in rulings on the admission of evidence sedulously guarded itself against doing the very thing appellant now charges it did. We will not swell this opinion by recapitulating those rulings already set forth which, we think, unerringly indicate the trial theory, and a correct one.

(2) In' the next place, on the facts of this record plaintiff did not make out its case on the issue of being “lawfully possessed.” Observe, defendant’s possession of the tract as a public wharf was fortified by a solemn adjudication of this court to that effect and against the heirs of Hafner, who subsequently created plaintiff corporation and then licensed it to pile lumber on the city’s wharf ground. Take a case: Suppose plaintiff in spite of the cited judgment in ejectment, rendered on an equitable answer, had taken possession of part of the wharf by force and arms after mandate went down settling the matter for all time, would that act constitute a lawful entry to result in lawful possession? If not, is the act of inching over surreptitiously or furtively and unknown to the owner and without any show of force on a small unused part of a great public wharf a fact constituting a lawful entry to result in lawful possession under the definitions of lawful possession already announced? I trow not. [Vide cases supra, and an interesting discussion by our Brother Williams in Abeles v. Pillman, 261 Mo. 359.] To so hold -would be the same as saying that the fox, who takes his prey secretly by adroit cunning and indirection when the farmer is not by or looking, is entitled to more respect than the hungry lion, who takes his in open day by use of sheer might, main, tooth and claw, and terror, unafraid of the face of man.

Speaking guardedly and strictly to' the facts of this record, we are of opinion that such a tortious possession as we have here is. not the kind of possession protected by the statute of forcible entry and detainer. The possession must be something more than a sham. At an early day Judge Napton in Michau v. Walsh, supra, made the following apposite observations:

“I take it that nothing more is meant by the term lawful, in this section, than peaceable or quiet possession, contradistinguished from possession which is not merely constructively tortious, but actually so. Such, I think, would be the character of the possession of the man, who, in my temporary absence, should get possession of my house. It would be tortious, and, oh my return, I might eject him, without subjecting myself to an action of forcible entry and detainer.”

Moreover, it seems to us that the show of force in the instant case by the city in removing the lumber obstructing the public wharf was not the kind of, violence and force coming within the purview of the statute and the mischief denounced. Attend to that view of it. In Iron Mountain & Helena R. R. v. Johnson, 119 U. S. l. c. 611, the philosophy of the matter is thus set forth by Mr. Justice Miller:

“The general purpose of these statutes is, that, not regarding the actual condition of the title to the property, where any person is in the peaceable and quiet possession of it, he shall not be turned out by the strong hand, by force, by violence, or by terror. The party so using force and acquiring possession may have the superior title or may have the better right to the present possession, but the policy of the law in this class of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and, then, when the parties are in statu, quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance. This is the philosophy which lies at the foundation of all these actions of forcible entry and detainer.”

Speaking to the question of force, a standard work puts the matter in this form (19 Cyc. 1117): “The force involved in the offense of forcible entry is private force unlawfully exerted, and the public force of the State lawfully exercised cannot be the means of a wrongful entry. ’ ’

We take care to say that we shall not hold that a municipal corporation, under any circumstances to be put or imagined, could not be guilty of forcible entry and detainer; but, under the circumstances disclosed by this record, we have no hesitancy in holding that the proposition quoted from Cyc., supra, is a sound and applicable one.

Furthermore, in this connection it is well to bear in mind (not as a controlling but as an illuminating fact) that no possession by plaintiff of the public wharf, however long continued, could ripen into title under the Statute of Limitations. Section 1886, Revised Statutes 1909, reads:

“Nothing contained in any Statute of Limitation shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.”

We have held that statute under recent exposition. [Dudley v. Clark, 255 Mo. l. c. 583 et seq.] That case may be consulted by those possessed of prying minds. We leave the matter with the remark that to hold plaintiff’s possession, not only taken in the teeth of onr judgment, bnt taken under circumstances that could never create title, a sham possession, cannot be out of the way.

(e) It will not be necessary to reproduce instructions. Appellant assigns error in the giving of two for respondent, but an examination shows them to be drawn on theories of the law announced as correct in this opinion. Such being the case, there is nothing else to do except affirm the judgment. Accordingly, let that be done. It is so ordered.

All concur, Bond, J., in result.


text:
    C. H. ALBERS, Appellant, v. NAT L. MOFFITT et al.; MERCHANTS EXCHANGE BANK OF ST. LOUIS, Appellant.
    Division One,
    December 19, 1914.
    1. APPELLATE JURISDICTION: Cross Appeals. Where there are cross-appeals from the same judgment to a Court of Appeals, if either is transferable to the Supreme Court both are.
    2. -: Injunction: No Damages. An appeal by a merchants’ exchange from a judgment enjoining it from expelling plaintiff from membership therein, wherein the petition does not show any legal basis for estimating the value of the injunction, is to the proper court of appeals, for it cannot be determined therefrom that any amount of money is in dispute.
    3. -: Accounting: No Data. A petition for an accounting, which gives no basis for a return of a definite sum of money and does not state in any way how much defendant is indebted to plaintiff, does not vest the Supreme Court with appellate jurisdiction.
    Appeal from St. Louis City Circuit Court. — Eon. O’Neil Ryan, Judge.
    Transferred to St. Louis Court of Appeals.

      Barclay, Shields & Fauntleroy for plaintiff.

      R..F. Walker, Rassieur, Schnurmacher & Rassieur, Boyle & Priest and T. E. Francis for defendants.
    STATEMENT.
    There were two appeals in this case, both primarily to the St. Louis Court of Appeals. One was taken by the Merchants Exchange from that portion of a decree of the trial court which enjoined it from enforcing’ a resolution suspending plaintiff, C. H. Albers, for a definite period from any and all privileges of the Board of Trade conducted by the Merchants Exchange. The other appeal was taken by said Albers from that portion of the same decree of the trial court which dismissed his suit as to the individual defendants. These two cross-appeals were pending in the St. Louis Court of Appeals, and one of them, that taken by the Merchants Exchange, was disposed of in Missouri Appeals, vol. 140, p. 446. The other appeal, as is shown by a file mark on- the record before us, was on March 30,1909, transferred to this court, on the motion of the respondents, -for the following reason: “because the amount involved is more than forty-five hundred dollars.” This latter appeal was argued and submitted in this court on the 19th day of October, 1914 (at its October Term). Other phases of this controversy have been before this court: C. 11. Albers Com. Co. v. Spencer, 205 Mo. 105; Ibid., 245' Mo. 368.
    The substance of the petition culminating in the judgment from which these two cross-appeals were taken is that C. II. Albers, plaintiff, on behalf of the Albers Commission Company, of which he was president, entered into contract with the defendant, Moffitt, on behalf of the Commission Company, of which he was likewise president, for the sale for future delivery of certain grain, such contracts to mature and delivery to be made before the 31st of December, 1903; that to secure his engagement, about twenty thousand dollars was put up with said purchaser as a margin; that thereafter said purchaser formed a secret agreement with his co-defendants, Spencer & Milliken, to “forestall the market in wheat in St. Louis,” to the end that said Spencer & Milliken should be able to dictate the price of wheat in transactions upon the Board of Trade; that for this purpose the grain contracts executed by plaintiff had been transferred to said Spencer & Milliken, in order to assist them in their conspiracy to corner the wheat market; that thereafter, to-wit, March, 1904, the said-Hubbard & Moffitt Commission Company returned to plaintiff the sum of $1790.25, being the amount of difference between the contract price of the grain which plaintiff had agreed to sell them, and the “fictitious price of 92c per bushel,” which the defendants (Spencer & Milliken and Hubbard & Moffitt Commission Company) by means of their corner of the market had created and fixed for the price of said grain oil and before December 31, 1903; that when this was done, plaintiff refused to return to said Hubbard Moffitt the reciprocal paper memoranda evidencing the original contracts of purchase of said grain executed at the time by the said Moffitt & Company; that for such refusal the defendant, ■ Merchants Exchange, passed a resolution suspending him from the privileges of membership in that body; that said resolution was invalid. The prayer of plaintiff’s petition is to-wit:
    “Wherefore, the premises considered, plaintiff prays the court to enjoin and restrain said Merchants Exchange of St. Louis from further enforcing said resolution or order of suspension of plaintiff and that said order or resolution be cancelled and decreed to be void, and that the said contracts between the C. H. Albers Commission Company and the Hubbard & Moffitt Commission Company be cancelled and declared void, and that said plaintiff have accounting of dam

      ages sutained by Mm in this behalf (so far as the same may be ascertained), including therein damages for the oppressive, fraudulent and unlawful and wrongful acts aforesaid of said defendants and each of them, and that plaintiff recover such da-mages aforesaid as may b¿ so found to be justly due to Mm by each of said defendants respectively, and have such other and further relief as may be just, and that plaintiff have a temporary restraining order to the effect first above prayed, pending the litigation and until the further order of this court, upon such terms as may be just and equitable. ’ ’
    All the defendants named in this petition were made parties by personal service. The defendant, Merchants Exchange, duly answered. The other defendants, not having answered within a year after said service, a default was taken against them. The case came on for trial upon the petition, the default, the answer of the Merchants Exchange, the evidence taken and an agreement as to certain facts, whereupon the trial court decreed a temporary injunction hitherto awarded by him against the Merchants Exchange to be perpetual, and found in favor of the defaulting defendants on the other issues presented by the petition and dismissed plaintiff’s petition as to them. Whereafter, the two cross-appeals were taken as above stated.
   OPINION.

I.

BOND, J.

(After stating the facts as above).— After a careful consideration of the record and briefs and hearing the oral argument in this case, we have reached the conclusion that no jurisdiction of this appeal was vested in us by the order of the St. Louis Court of Appeals transferring this cause upon the assumption that it involved ‘ ‘ an amount in dispute ’ ’ beyond the jurisdiction of that court. At that time the pecuniary limit of the jurisdiction of that court was forty-five hundred dollars. At the time the cause was submitted in this court, the pecuniary limit of the jurisdiction of that court had been raised to seventy-five hundred dollars, exclusive of cost. The question to be determined by us in ascertaining our jurisdiction is whether or not at the time of the submission of this cause the “amount in dispute” therein exceeded seventy-five hundred dollars. Before dealing with that question, it is well to say that doubtless the St. Louis Court of Appeals would not have transferred a parcel of this case presented by the cross-appeal of plaintiff from the same judgment from which the Merchants Exchange had also taken an appeal to that court, if its attention had been called to the pendency of the two cross-appeals, for in that event if one was transferable the other should also have been transferred at the same time. [Keller v. Summers, 262 Mo. 324.]

We think it clear, however, that neither of the appeals taken in this cause presented any question of amount which debarred the St. Louis Court of Appeals from taking cognizance of them when said appeals were duly lodged therein.

First: The appeal from an adverse ruling of the injunctive “prong” of this case which the Merchants Exchange took to the St. Louis Court of Appeals, clearly did not present any amount in dispute whatever, for the petition did not show any “legal basis for estimating the value of the injunction.” In such cases we have recently ruled after review of the authorities that an appeal must be taken to the' proper Court of Appeals. [Foundry & Mfg. Co. v. Moulders’ Union, 251 Mo. 448.]

Second: As to so much of plaintiff’s petition as prayed for an accounting against the individual defendants, and for a cancellation of the selling contracts executed to them, by plaintiff, there is nothing in the petition or in the record which discloses that plaintiff sought to recover any definite sum whatever. The petition wholly fails to state what was the market value of the grain contracted to be sold at the time of the maturity of the contracts. It does allege that 92c per bushel was an extortionate and fictitious value, but it fails to show to what extent it was in excess of the real or market value of the product at that time. Hence, it presents no data whatever for estimating the amount which might be due plaintiff if it were adjudged that he should only be liable for the market value of the grain for non-delivery. There is no more definiteness or certainty on this point than if the petition had prayed in general terms for an accounting on the part of defendants without stating in any way how much they were indebted to him, and in effect that is what it did. For aught that appears in the petition, or in the record, it may turn out upon an accounting that’ defendants were not indebted to plaintiff in any substantial sum. In a case handed down at the last opinion day a similar question was presented, and after a careful review of the authorities and a full analysis of the petition and record in that case there were found no basis or facts from which the court, with reasonable certainty, could arrive at the conclusion that more than $7500 was involved, and the cause was therefore remanded to the St. Louis Court of Appeals. [Bowles v. Troll, 262 Mo. 377.]

In the case at bar, the only dispute can be as to whether or not the plaintiff is entitled to a return of a greater part of the amount advanced by him as margins (about $20,000) than was voluntarily repaid to him. He has furnished us no estimate or allegation .of what additional sum he thinks should be returned, nor is there in the record any basis for a necessary deduction that a larger amount than $7500 is claimed or would be awarded to the plaintiff on an accounting in this cause.

For the foregoing reasons, it is apparent that no jurisdiction was vested in this court by the act of the St. Louis Court of Appeals in transferring this cross-appeal.

The ease is, therefore, re-transferred to the St. Louis Court of Appeals. It is so ordered.

All concur.