author: GRAVES, J.

text:
    SOUTH MISSOURI PINE LUMBER COMPANY v. HENRY S. CARROLL et al., Appellants.
    Division One,
    March 3, 1914.
    1. TAX DEED: Inadequacy of Price: Collateral Attack. In a suit to quiet title, a tax deed will not be held to have been invalid on the ground that the land sold for a grossly inadequate price. Such, a suit is not one to set 'aside the tax deed. To give the question of inadequacy of price consideration would be to allow a collateral attack upon a judgment.
    2. -: Affidavit of Nonresidence. An affidavit that “John N. Lacks makes oath and says that the defendant, Henry S. Carroll and W. H. H. Kinzer, —nonresident— of the State of Missouri, and cannot be personally served with summons in this State,” being otherwise sufficient, authorized the clerk of the circuit court to issue an order of publication for defendants, and the judgment in the tax suit -was not void because of the omission of the word “are” and the letter “s” from the affidavit at the places where the ordinary reader would immediately supply them in his mind. Besides, the affidavit says that said defendant’s “cannot be personally served with summons in this State” — a statement from which non-residence is clearly infer-able, when all the wording of the affidavit is fully considered. ,
    3. -: -: O’mission of Word. The mere omission of a word in an affidavit filed in connection with a petition in a suit for taxes, where it is clear as to what the omission is, and where it is followed by other language clearly showing the meaning and purport and the word to be supplied, will not authorize a judicial holding that there was no affidavit.
    4.--: Judgment: Defectively Worded. Where the petition, affidavit and order of publication were all sufficient,' and the court had jurisdiction of the parties and subject-matter, and every omission in the defectively worded judgment and the misprision of the clerk in writing it up could have been supplied or corrected by a rmno pro tuno entry from data to be found among the court files, and the parties and the land and its owners are correctly described therein, the said judgment in the tax suit will not, in a suit to quiet title, he held to be so defective as to be void, however crudely worded.
    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge. .
    Affirmed.

      J. W. Chilton for appellants.
    (1) To entitle defendants to judgment in this action it was necessary only, that defendants show a better title derived from the agreed common source, than that claimed by plaintiff under the common source. Graton v. Land Co., 189 Mo. 322; Machine Works v. Brown, 200 Mo. 219; Gage v. Cantwell, 191 Mo. 698. (2) In suits for the enforcement of the collection of back taxes against nonresident defendants, filed in vacation, the clerk of the court is authorized to issue an order of publication only when the collector, or his attorney, has alleged in his petition or in an affidavit filed in the cause, that all or a part of the defendants are nonresidents of the State. Under no other circumstances has the clerk any authority to issue an order of publication in vacation. Sec. 1770, R. S. 1909; Chilton v. Tam, 235 Mo. 498; Schell v. Leland, 45 Mo. 289; Bick v. Maupin, 146 Mo. App. 596; Tooker v. Leake, 146 Mo. 419; Kelly v. Murdaugh, 184 Mo. 377; Wright v. Hink, 193 Mo. 130. Such an allegation, (whether in the petition or affidavit) to support constructive service, “must be definite and unequivocal.” To allege a thing means to affirm positively, to assert, to declare, to aver such thing. Wade on Notice, secs. 1032, 1049, 1060; Williams v. Monroe, 125 Mo. 586; Chilton v. Tam, 235 Mo. 498; Keller v.'Keller, 144 Mo. App. 98; Corclray v. Cordray, 91 Pac. 781; Oelbermann v. Ide, 93 Wis. 669; Albers v. Kozeluh, 68 Neb. 522; Gilmore v. Lampmann, 86 Minn. 493. Statutes in derogation of the common law, such as our statute authorizing constructive service of process, are against common right, are harsh in operation, and are to be strictly, even rigidly, construed. Wade on Notice, sec. 1030; Ohlman v. Saw Mill Co., 222 Mo. 62; Young v. Downey, 150 Mo. 326; Harness v. Cravens, 126 Mo. 247; Charles v. Morrow, 99 Mo. 646; Ivleber’s Void Judicial & Execution Sales, sees. 106, 110 and 111. It cannot be said that the omission of vital words from the pretended or intended allegation of nonresidence in the- affidavit to petition in the tax suit was a mere clerical error.' Bad grammar may be tolerated in law, but where there is no grammar at all, there can be no toleration, for there is nothing to tolerate. Bland v. Windsor, 187 Mo. 132. The statutory requirement of an allegation of nonresidence of defendants in a tax suit, to authorize the issuance of an order of publication, is jurisdictional. Parker v. Burton, 172 Mo. 90; Tooker v. Leake, 146 Mo. 434; Hutchinson v. Shelley, 133 Mo. 412; Blodgett v. Shaffer, 94 Mo. 671. (3) There can be but one final judgment in a cause, and it must dispose of all parties to such cause. Melcher v. Scruggs, 72 Mo. 413; McCord v. McCord, 77. Mo. 175; Spalding v. Bank, 78 Mo. 382; Bank v. St. Louis, 189 Mo. 375; Seay v. Sanders, 88 Mo. App. 484; Crow v. Crow, 124. Mo. App. 120; Blockmer v. Railroad, 137 Mo. App. 479; Glass Co. v. Pepper, 96 Mo. App. 596. And a judgment for taxes, to be valid as against the land, must find that the defendants named in the suit were the owners of the land. Rothenberger v. Garnett, 224 Mo. 191. (4) When land is sold for taxes and brings an amount so low as to shock the conscience, the sale, because of inadequacy of consideration alone, is void. Mangold v. Bacon, 237 Mo. 496.

      Lew B. Thomason and 8. L. Clark for respondent.
    (1) An examination of the cases cited by appellants will disclose that they have no application or bearing whatever upon the question of sufficiency of the affidavit made by the plaintiff Lacks, herein above set forth. The question decided in the case of Chilton v. Tam, 235 Mo. 498, and the only case which approaches even remotely the question in the case at bar, is readily distinguished. While the language in the affidavit is not grammatically correct, it meets all tlie requirements of the statute. (2) The judgment rendered in the tax case is not void. It is the sentence or determination of the law, pronounced by a court of competent jurisdiction, in favor of the' plaintiff, and against Henry S. Carroll and W. H. II. Kinzer; it finds Henry S. Carroll and W. II. H. Kinzer to be the owners of the lands described in plaintiff’s petition and described in the judgment; it finds that certain state and county taxes are due and delinquent upon the lands therein described; it finds the year for which said taxes are delinquent, and the total amount of the taxes due for that year for which judgment is rendered, and contains all the essentials of a valid judgment. There is no magic in any particular form of a judgment. The omission or failure of the clerk to fill in certain blanks only constituting a proper or approved term, is but the misprision of the clerk and does not render the judgment void. Morrison v. Turnbaugh, 192 Mo. 445; R. S, 1909, sec. 1851. (3) The judgment of a court of competent jurisdiction so long as it stands unreversed cannot be impeached in a collateral proceeding on account of mere errors or irregularities not jurisdictional. The failure to fill in the blanks that were not filled could have boen corrected by nimc pro tunc entry from the data furnished by and from the record itself; and equity looks upon that as done that ought to have been done.
   GRAVES, J.

Plaintiff brought suit under our statute to quiet title to one hundred and twenty acres of land in Butler county. The petition is described in the abstract as the usual short form petition in cases of this kind. The instant suit was brought against Henry S'. Carroll et al., but before the trial it developed that said Henry S. Carroll had died in 1906, prior to the bringing of the suit, and had left as his sole heirs Harry C. Carroll and Irwin D. Carroll, who were admitted as parties defendant, and filed answer claiming title to the land.

It stands admitted that the defendants, as heirs of Henry S. Carroll, have title to the land, unless their father was divested of title by a certain tax proceeding. In other words, it is admitted that Henry S. Carroll is the common source of title.

Plaintiff claims by mesne conveyances through Henry S. Carroll, the first of which is a tax deed by virtue of a sale under a judgment in State ex rel. Lacks, Collector, v. Henry S. Carroll and W. H. H. Kinzer. It is admitted that Kinzer had no title at any time. Defendants charge that' the tax proceedings were void and claim as the sole heirs of the said Henry S. Carroll, deceased. They also urge in the brief that the land sold for a grossly inadequate price, i. e., the sum of ten cents for one hundred and twenty acres of land.

Upon trial before the court judgment was entered for plaintiff and defendants have appealed.

I. It is suggested in the brief that the land was sold at a grossly inadequate price, and we are cited to the case of Mangold v. Bacon, 237 Mo. 496. The option in the Mangold case cannot avail these defendants. In the first place this is not an action to set aside the tax deed, and the conscience of the court is in no way appealed to in that regard. Secondly, the matter was not even pleaded below. Thirdly, the case was tried upon no such theory below. Inadequacy of price at the sheriff’s sale is not in tins case in any shape, and to give it consideration would be to allow a collateral attack upon the judgment. It might have been a ground of relief (a matter we do not decide) on a proper petition in a proper case, but it is not such in this case upon the record before us.

II. It is next contended by the defendants that the judgment in the tax case is void, because the clerk was unauthorized to issue an order of publication upon the affidavit which was filed with the petition in the tax suit. There was no allegation in the petition that Henry S. Carroll or the said Kinzer were nonresidents of Missouri, but to the petition was annexed the following affidavit:

State of Missouri County of Butler
John N. Lacks makes oath and says that the defendant, Henry S. Carroll and W. H'. H. Kinzer, non-resident of the State of Missouri, and cannot be personally served with summons in said State.
Subscribed and sworn to before me this 30th day of August, A. D. 1897.
B. J. Phckett, Clerk Circuit Court
of Butler County, Missouri, by
Dave W. Hill, D. C.

The above is as taken from the appellant’s abstract. The respondent thus sets out the material portion of the affidavit:

John N. Lacks makes oath and says that the defendant— Henry S. Carroll, and W. H. H. Kinzer, -non resident-of the State of Missouri, and cannot be personally served with summons in this State.

It will be observed that the only difference consists in the blanks which appear in the latter, and which do not appear in the former.

It is evident that this affidavit was one of the usual forms attached to a blank petition used for -tax suits, and the party failed to write in the word “are” before the words “Henry S. Carroll, and W. H. H. Kinzer” and further failed to add the letter “s” after the words “nonresident.” With this word “are” and the letter “s” interpolated at the proper place, there could be no question about this affidavit. Do these apparent omissions destroy the vitality of this affidavit? We think not. The omissions are 'so apparent, that the ordinary reader would immediately supply them in his mind. In addition it is stated in clear terms that Carroll and Kinzer ‘ can not be personally served with summons in this State,” and all this is duly sworn to before a proper officer.

We concede the general rule that in acquiring jurisdiction by substituted service of this kind the statute must be strictly followed. But on the other hand the mere omission of a word in an affidavit, where it is clear as to what the omission is, and where it is followed by other language, as here, clearly showing the meaning and purport, and the word to be supplied, we would hardly be justified in saying there was no affidavit. We are cited to the case of Chilton v. Tam, 235 Mo. 498. In that case there was no affidavit at all. The only thing that was relied upon for authority to issue an order of publication, was an unfilled paragraph in a printed form of a petition. Judge Valliant held that to be insufficient, and among other things said:

“Plaintiff in rebuttal introduced in evidence a duly certified transcript of the record in the case, including the petition on which the order of publication was based. The only statement in the petition in reference to the residence of the defendants was as follows :
" Plaintiff further states that the defendant — nonresident — of the State of Missouri, so that the ordinary process of law cannot be served upon — .’
" The court rendered a decree finding among other things ‘that the allegation of nonresidence of the defendants in said tax suits as the same appears from the certified copy of said petition in said tax suit is a sufficient allegation of the nonresidence of the defendants in said tax suit to authorize the clerk of the court in which said tax suit was filed to issue an order of publication thereon at the filing of said tax suit.’ The court then decreed that the defendants T. T, Springer and Charles E. Riggs were the sole owners of the legal and equitable title to the land in suit and the plaintiff had no title or interest in it. Prom that decree the plaintiff appeals.
“The only question in the case is, was the statement in the petition in the tax suit sufficient to justify the order of publication?
“The process by which what the law calls constructive notice is given, and by which a man’s property may be seized and sold under a judgment rendered in a suit of which he had in fact no notice at all, is a harsh process, it is allowed by law only from necessity, and when a plaintiff would avail himself of it he should make a strict compliance with the law that añows it.
“The statute under which the plaintiff in the tax suit obtained the order of publication now in question, section 2022, Revised Statutes 1889, now section 1770, Revised Statutes 1909, says: £if the plaintiff or other person for him shall allege in his petition or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are nonresidents of the State, . . . the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the nonresidents,’ etc. In the next section it is provided that if ‘part of the defendants are residents, of the State, process shall be issued against them as in other cases.’
“Under that statute, if a plaintiff seeks to reach his adversary by publication in a newspaper on the ground that he is a nonresident, he must state in his petition or affidavit in unequivocal terms that the defendant is a nonresident, and if there are several defendants and some are residents and others nonresidents he must name the nonresidents. On reading the petition in the tax suit in question it is clear that a printed form was used in preparing it and the pleader forgot to fill the blanks in the cause relating to the nonresidence of the defendants.
“There are seven persons named as defendants, but it is not stated that they are all nonresidents and there is no statement that either or if either which one of them is a nonresident.
“That statement in the petition was not sufficient to authorize the order of publication and therefore the order and its publication were not sufficient to give the court jurisdiction of the defendants in that suit or of their interest in the land. ”

That case we reversed for the reason the court never acquired jurisdiction to render the judgment. But that case is not this case. Here the parties who cannot be served by process in this State are named in the affidavit. Not only so, but it is affirmed that they can not be served with summons in this State, a statement from which nonresidence is clearly infer-able when all of the wording of the affidavit is fully considered. In addition we have a patent omission of a word and a letter which the mind of the reader irresistibly supplies by reason of the context. This point will be ruled against the defendants.

III. The next and last point argued is that the judgment itself is so defective that no valid sale could' have been had thereunder. The judgment reads:

In the Circuit Court of Butler County, State of Missouri. ......the... .day of......189...., and the .... day of the Term.
Civil Action for Delinquent Taxes. No. 4869. The State of Missouri, at the relation and to the use of John N. Lacks, Collector of the Revenue of Butler County, Missouri — Plaintiff, against Henry S. Carroll and W. H. H. Kinzer— Defendants.
Now at this day the plaintiff appears by attorney and this cause coming on to be heard by the court and the defendant - and it appears to the court that this is an action to enforce the lien of the State of Missouri for the back and delinquent taxes due the State of Missouri, and the county of Butler, upon the real estate hereinafter described, and thereupon this cause is submitted to the court for trial, and the court, after hearing the evidence offered, doth find that the defendant the owner of the following described tracts of real estate, lying and being situated in the county of Butler, in the State of Missouri, to-wit:
N% SW14 of SW% of section No. 18, in township No. 26, range No. 4 east, containing ............ acres.
That there was duly and legally assessed and levied upon and against said tracts, by the officers of said State and County, having legal authority so to do, the following taxes under their appropriate heads, and for the years following, to-wit:
For the year 1894: State Rev. Tax, $.60; Co. Rev. Tax, $1.68;
School Tax, $.90; Int. Tax, $1.06; Total, $4.65.
Amounting in the aggregate to the sum of ...... dollars; tbat all of said taxes were duly returned and adjudged to be delinquent, and that they, together with the interest thereon as above found to be due, remain due and unpaid. Wherefore, it is by the court ordered adjudged and decreed, that the State of Missouri, at the relation and to the use of..... Collector of the Revenue for Butler County, Missouri, have and recover of the defendant the sum of.....dollars; so found to be due as aforesaid, together with the cost herein (including ten per cent on said sum as attorneys fees, . . . . as collectors fees, and ...... cents fee for the county clerk), and that the lien of the State of Missouri on said tract of real estate be enforced to the use aforesaid, and that the interest of the defendant in the real estate above described, or so much thereof as may be necessary to satisfy this judgment, interest and costs be sold, and that a special fieri facias issue herein to the sheriff of Butler county, commanding him to execute this judgment.
..................................Judge.
Attest:.......................Clerk.

The question now uppermost is whether or not this judgment is so faulty and defective as to require us to say that it is no judgment at all in the tax case. According to the record before ns that instrument appears as a judgment of the circuit court of Butler county “in Book K, page 533, Circuit Court Judgment Records of Butler County, Missouri, in the case of State ex rel. John N. Lacks, Col. Rev. Butler County, Missouri, Plaintiff, v. Henry S. Carroll and W. H. H. Kinzer, defendants.”

As it is shown to appear as a judgment of that court, the only question here is whether or not its language, when considered with other records in the case, makes it, what it is alleged to be, i. e. a judgment in law and fact.

This is a collateral attack upon the judgment, and to avail the defendant the purported judgment must be void upon the face of the whole proceeding. As said by Gantt, P. J., in Lovitt v. Russell, 138 Mo. l. c. 482:

“Now it must be borne in mind that the proceedings, under review and collaterally assailed in this case, were in the circuit court of Jackson county, a court of general jurisdiction. No principle of law is more universally accepted in this country than that the judgment of a court of competent jurisdiction so long as it stands unreversed cannot be impeached in a collateral proceeding, on account of mere errors, or irregularities, not going to the jurisdiction. [Union Depot Co. v. Frederick, 117 Mo. 138; Lingo v. Burford, 112 Mo. 149; Gray v. Bowles, 74 Mo. 419; 1 Black on Judgments, sec. 261.]”

We have held in this case that the court acquired jurisdiction of both Carroll and Kinzer. It stands conceded that the petition in the tax suit states all necessary facts upon which to predicate a valid judgment. It among other things charges that Carroll was the owner of the land, against which the State sought to enforce its lien. It stands conceded that the order of publication recited all necessary things and was published for the required time. In other words, the defendants concede in their brief that if the affidavit in question is good (which we hold is g’ood) the circuit court had full and complete jurisdiction both of the parties and the subject-matter. In addition, the very offer of the judgment in the tax suit in this case is a concession that it appears to be a judgment in the case upon the proper records of the circuit court. In this situation, with the circuit court possessed of full jurisdiction, can we say that this judgment is void upon the face of the entire record in the case? We hardly think so. A question closely of kin to this was thoroughly discussed by Lamm, J., in Morrison v. Turnbaugh, 192 Mo. l. c. 445, whereat he said:

“It is next contended that the tax judgment and deed are void and ineffective and do not operate upon the title of George M. Johnson because the judgment is against G. W. Johnson and the tax deed recites such judgment and adopts the error. It will be seen that the petition has the proper defendant by name, George M. Johnson, the order of publication has the proper defendant by name, the proof of publication has the proper defendant and the order of publication was actually published against the proper defendant by name, but that, presumably by the misprision of the clerk, the middle initial ‘M’ wras pretermitted in the judgment and ‘W’ inserted in lieu thereof. Does this render the judgment void under the foregoing facts? We think not. This judgment could have been corrected by a nunc pro tunc entry on the data existing in the clerk’s office. [Stevenson v. Black, 168 Mo. l. c. 561; R. S. 1899, sec, 660.] And equity considers that done which should have been done.
“Not only so, biit by the Statute of Jeofails, existing at the time this suit was brought, and now appear-hag in Eevised Statutes 1899, as section 672, it was and is provided that no ‘judgment after trial or submission,’ no ‘judgment upon confession nihil elicit or upon failure to answer,’ should ‘be reversed, impaired or in any way affected by reason of . . . any mistake in the name of any party or person . . . when the correct name . . . shall have been once rightly alleged in the pleadings or proceedings.’ If, therefore,, the tax judgment had been appealed from, this court, even in such direct proceeding, could not have stayed, reversed or impaired it by reason of the misprision of the clerk-in changing the true name once appearing in the records, George M. Johnson, to G. W. Johnson.
“We are' cited to cases holding that a tax judgment is void where it is based upon an order of publication not directed to the true owner of the land by his record name, but directed to a person whose Christian name appears therein by initials only. Samples of' this line of cases are: Gillingham v. Brown, 187 Mo. 181; Spore v. Ozark Land Co., 186 Mo. 656; Vincent v. Means, 184 Mo. 327; Turner v. Gregory, 151 Mo. 100; Elting v. Gould, 96 Mo. 535. But all those cases on investigation will be shown to be based on the principle that constructive service must be viewed critically in order to prevent, so far as can be, irreparable injury, and that a publication against a defendant by the initials of his Christian name was not precise enough for constructive service, giving jurisdiction, and did not come within the purview of the statute requiring such suit to be brought in the name of the owner. [See R. S. 1879, sec. 6837, now appearing as R. S. 1899, sec. 9303.] The matter lying at the root of those cases and in judgment was jurisdiction and due process of law, and it was held, in effect, that by that character of publication jurisdiction was not acquired. But the case at bar is not within the rationale of those, cases, for here the defendant was brought into court by a proper order of publication directed to him by his tx*ue name.
“Furthermore, the judgment in question was concededly rendered in a cause wherein Greorge M. Johnson was the record defendant, the execution is shown to have issued in the identical cause and the sale and deed followed. If under these circumstances the grantee in the Morrison deed had been an innocent purchaser, one with no knowledge of this tax title or these defects, a different question might arise, but appellant, James M. Morrison, who made the purchase on behalf of himself and his wife, knew the whole history of the title to this land from his search of the records, and, as a matter of deliberate and cool judgment, determined to defeat or avoid the tax proceedings on the theory that they were void, and thereby placed himself in a position not entitled to broad judicial sympathy. When an error of the character under consideration shows a lack of jurisdiction, the result is one thing; but where jurisdiction has been fairly acquired, then errors of such character are mere irregularities not going to the root of the matter and, as said, not amenable to collateral attack. [Lovitt v. Russell, 138 Mo. 474; Rorer on Judicial Sales (2 Ed.), sec. 171.] ”

So we say in the case at bar. The petition was in due form. The publication and the proof of publication was in due form. Defendants were duly named in all, and land properly described in all, the ownership of the land declared to be in such defendant throughout all. The jurisdiction of the court is fully fixed, and the only trouble is the misprision of the clerk in making some omissions in writing up a judgment, evidently upon a printed form. Everything here complained óf as to this judgment, as said in the Morrison case, supra, “could have been corrected by a nunc pro tunc entry on the data existing in the clerk’s office. [Stevenson v. Black, 168 Mo. l. c. 561; R. S. 1899, see. 660.] And equity considers that done which should have been done.” Under these rulings we do not feel that we should say that there was no judgment in the tax suit. In this collateral attack what is called a judgment is sufficient to stand.

■ This concludes all the questions raised and from what has been said it follows that the judgment must be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    ROBERT A. BUCKNER, JR., et al. v. ROBERT A. BUCKNER, SR., et al.; NELLIE M. BUCKNER et al., Appellants.
    Division One,
    March 3, 1914.
    1. WILL: Construction: Grandchildren Born After Death of Widow. The testator gave to his widow his property for life and then declared: “It is my will and I do hereby give, devise and bequeath the residue of my estate remaining in her hands at the death of my beloved wife, of whatever nature or kind, to the heirs of my said son, which are born to him in lawful wedlock, share and share alike therein. * * * And in the event my said son should die without any other issue born unto him in lawful wedlock than his present son (my little grandson who now lives with me) and the said grandson should outlive my beloved wife and be the only lawful heir of my said son, then I will, bequeath and devise unto him, my said grandson, the balance of my property heretofore devised to my wife which she may have at the time of her death." Held, that the remainder was devised to his grand children as a class, and could not be limited to the eight who were born prior to his wife’s death, but included both them and the three thereafter born. The plain intent of the will was to disinherit the son, and not to discriminate among the grand children born in lawful wedlock.
    2. -: -: Heirs: None of the Living. A devise to¡ “the heirs of my said son” means a devise to the children or their descendants living at the death of the son, since no one can be the heir of a living person.

      S. -: -: Devise to Class: When Vested. A devise or bequest to a class, if no time for vesting is fixed by the will, will take effect at the death of the testator. But where the will, either by express words or necessary implication, fixes a different time, and the whole class is not then completed, the remainder will vest in those then in essie, who will hold it subject to be opened and to let in afterborn persons who belong to the class at the time fixed by the will for its final consummation. A devise by testator of his property to his wife for life and “the residue of my estate remaining in her hands at the time of her death to the heirs of my son born to him in lawful wedlock, share and share alike,” created a vested remainder in the lawful children of the son living at the death of the wife, and they then took the title, subject, however, to an executory devise to such other children as should be born to the son in lawful wedlock, who when born became cotenants with those previously born, whether born before or after the death of the life tenant,
    Appeal from' Madison Circuit Court — Hon. Charles A. Killian, Judge.
    Reversed and remanded {with directions).

      Robert A. Anthony for appellants.
    (1) In the construction of the will, the court will endeavor from a consideration of the whole instrument to ascertain the intention of the testator. R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491; Threlkeld v. Threlkeld, 238 Mo. 459; Dameron v. Lanyon, 234 Mo. 627; Cox v. Jones, 229 Mo. 53; Settles v. Shafer, 229 Mo. 561; Stewart v. Jones, 219 Mo. 614. (2) It being apparent from an examination of the will of Aylette Buckner that he intended for all the children of his son Robert, born in lawful wedlock, to share equally in his property remaining undisposed of by his widow, the estate would open and allow the appealing defendants to share therein, although, born after the death of Martha Ann Buckner, widow of Aylette Buckner. Doerner v. Doerner, 161 Mo. 399; Gates v. Seibert, 157 Mo. 254; Buxton v. Kroeger, 219 Mo. 224; Waddell v. Waddell, 99 Mo. 338; Emmerson v. Hughes, 110 Mo. 627; Thomas v. Thomas, 149 Mo. 426; Reiuclers v. Coppleman, 68 Mo. 482; Wead v. Gray, 8 Mo. App. 515; Ives v. Kimlin, 140 Mo. App. 293; Sullivan v. Garesche, 229 Mo. 496; Carter v. Long, 181 Mo. 701.

      Benjamin H. Marbury for respondents.
    STATEMENT.
    This is a suit to construe a will and was tried upon the will and certain admitted facts. The testator owned a valuable farm of about three hundred acres in Madison county, Missouri. He executed his will on the 19th day of February, 1875. He died on'the 24th day of May, 1876, leaving as his only heirs, his widow, Martha Ann Buckner, who was made executrix; his son, Robert A. Buckner, the father of Quarles A. Buckner, a grandson who resided with the testator.
    The will, after providing for the payment of debts, bequeathed five dollars to his son R. A. Buckner, and then devised all the residue of his estate to his widow for life with full power of sale or disposition Tor her support or any purpose, and with further limitations over after her death, to-wit:
    “It is my will and I do hereby give, devise and bequeath the residue of my estate remaining in her hands at the death of my beloved wife of whatever' nature or kind, to the-heirs of my said., son Robert Alfred Buckner, which are born unto him in lawful wedlock, or to the descendants of such heirs so born m lawful wedlock, share and share alike therein, but in ■case and in the event my beloved wife should outlive the child or children and issue born, unto my son Robert Alfred, in lawful wedlock or their descendants, then the whole of my property of whatever character, nature or kind shall be my wife’s absolutely and in fee simple, hereby giving and granting unto her full power and authority to dispose of the same by gift, deed or will as she in her wisdom may then see proper to do.

      “And it is my will that in the event my said son Robert Alfred Buchner should die without any other issue born unto him in lawful wedlock than his present son Quarles A. Buckner (my little grandson who now lives with me) and the said Quarles A. Buckner should outlive my beloved wife Martha Ann, and be the only lawful heir of my said son Robert Alfred Buckner, then I will, bequeath and devise unto him the said Quarles A. Buckner all the balance of the property hereinbefore devised to my wife or the proceeds thereof, which she may have at the time of her death.” (Italics mine.)
    The will was duly probated and the widow took possession of the estate and retained it until her death, October 22, 1892.
    The ■ year after his father’s death, Robert A. Buckner married a second time, February 27, 1877. Of this marriage eight children were born and living when the widow and life tenant died, and three others were born after the death of the widow, but were living when this suit was begun, and four others were born who died without issue and intestate. The plaintiffs were born before the death of the widow of the testator. The other children are made defendants, four of them are minors and defend by a guardian ad litem.

    The trial court held the devise in the will vested a life estate in the widow and afterwards vested, the entire estate in such only of the children of R. A. Buckner as were born of his two marriages before the death of the widow and life tenant, and vested no interest or estate in those of his children born of his last marriage after the death of the life tenant. From that decree this appeal was duly taken by the minor defendants through their guardian ad litem.

   OPINION.

BOND, J.

(After stating- the facts above). — The paramount purpose of the testator was to disinherit his own son and to give to the lawful offspring of that son the portion which was withheld from their father. This intention is displayed in the clause directing the executrix to give his spn five dollars and to take his receipt. And in the third clause of the will where there is a limitation over ‘ ‘ to the heirs ’ ’ of his son'“born unto him in lawful wedlock” of the estate in the hands of the life tenant at her death.

The important question is to determine who were intended by these terms to become the owners of the remainder devised. At the death of the life tenant eight children of the son of the testator were then alive, and three others were subsequently born to him in lawful wedlock. The happening of these conditions necessarily exclude from review the provisions of the will creating under certain other contingencies, different devises of the estate after the life tenancy. The motive of this will was the substitution of the.“heirs” or lawful children of the excluded son, for their father. There is no indication .in the will that the testator designed to discriminate against any persons composing this class, or to except therefrom the children who might be born after the death of the life tenant. The natural sentiment of the testator would be one of equal affection and care for all of his grandchildren. That he did entertain this just feeling is shown by the fact that though there was only one grandchild when the will was made, and that one lived with him, yet he took the proper and reasonable view that others might be born who would have the same claims of relationship and upon his affections, and who should be treated with the same beneficence. He accordingly made the devise over to the “heirs” as one class. That he refused to prefer the grandchild who then lived with him to others then unborn, is a circumstance strongly showing that it was not his intention to make preferences among Ms future grandchildren by giving those born at one time advantages over those born at another.

TMs conclusion also results from the language selected by him to carry the devise over. In that connection he chose the descriptive words of the devisees, to wit: “Heirs of my said son Robert A. Buckner”, so that the persons to take under this limitation in addition to being bom in lawful wedlock must be also heirs of his son. No one can be the heir of a living person. [Emmerson v. Hughes, 110 Mo. l. c. 630.] Therefore the correct use of the term “heirs” necessarily implies in this will a class of persons made up of Ms children or their descendants at the death of R. A. Buckner, which fixes the time when the class shall be completed, which began with the birth' of the first child and will ultimately consist of the children of R. A. Buckner born in lawful wedlock or their descendants who are alive when he shall die.

That the testator had tMs intention when making his will is further shown by the words of the last paragraph of clause three, where he devises over to the single grandchild (alive when the will was made) if he shall outlive the life tenant, and in the event R. A. Buckner “should die without other issue born unto Mm in lawful wedlock” than the said child. TMs language of the will clearly recognizes the intent of the maker that the class to take as remaindermen under the first limitation would comprehend all of the issue, children or descendants, of R. A. Buckner bom in lawful wedlock and living at his death. For the alternative devise to the one grandchild is expressly conditioned to arise only upon the nonexistence of any grandchild or their descendants, at the death of R. A. Buckner.

"We conclude that by the terms of his will the testator intended upon the happening of the facts agreed upon on the trial, that the final remaindermen of his estate should consist of all the children, born in lawful wedlock to his son R. A. Buckner or their descendants, at his death. And we hold that it was not the intention of the testator to exclude from participancy in the devise of said remainder interest, any of the children of his son born of a lawful marriage, whether before or after the death of the life tenant or their descendants. Unless this intention of the testator is opposed to some principle of public policy or rule of law governing devises of estates, it must be carried out. [R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491, and cases cited.]

II.

In this ease the devise to the widow of an express life estate was coupled with a right to sell or convey, which she did not exercise. Hence the remainder over was not defeated. [Grace v. Perry, 197 Mo. 550.]

The general rule is that a devise or bequest to a class, if no time for vesting is fixed, will take effect at the death of the testator. But where the will either by express words or necessary implication, fixes a. different time and the whole class is not then completed the devise or remainder will vest in those then existing who will hold it subject to be opened so as to let in afterborn persons who shall belong to the class at the time fixed by the will for its final completion. [Thomas v. Thomas, 149 Mo. l. c. 434; Buxton v. Kroeger, 219 Mo. l. c. 240; Carter v. Long, 181 Mo. l. c. 709; Gates v. Seibert, 157 Mo. l. c. 271.] Such limitations over are contigent remainders or executory devises as the case may be.

In the case at bar the limitation over became a vested remainder in the lawful children of R. A. Buckner at the death of the life tenant who took the title, subject however, to an executory devise to such other children as should be born to him in lawful wedlock (Sullivan v. Garesche, 229 Mo. l. c. 509), who when born will eo instanti become cotenants with those bom before.

Under these authorities there is no difficulty in effectuating the plain intent of the testator as stated in the former paragTaph of this opinion. The learned trial court should have adjudged that at the death of the widow and life tenant, the devise over vested title in the heirs of R. A. Buckner alive or their descendants, who took the same, subject to a possible diminution of the estate by the birth of other children, when the remainder would open and let in them or their descendants, as codevisees.

For his refusal so to hold, the case is reversed and remanded with directions to enter a decree in conformity with these views.

All concur.


author: BROWN C. PER CURIAM

text:
    OSCAR ABBOTT v. MARION MINING COMPANY, Appellant.
    Division One,
    March 3, 1914.
    ATTORNEYS’ LIEN ACT: Effective After Suit Brought but Before Judgment. An attorney who contracted with plaintiff for a contingent fee and brought suit for him before the Attorneys’ Lien Act (Laws 1901, p. 46; R. S. 1909, sec. 964) went into effect, in which judgment was rendered after the act became effective, has his lien upon the judgment recovered. The act does not affect any vested right of the defendant, but merely provides a remedy by which- the property of a debtor in its hands may be made available to the creditor.
    Appeal from Barton Circuit Court. — Hon. B. G. Thurman, Judge.
    Affirmed.

      Thomas é Hackney for appellant.
    The court erred in refusing the defendant’s demurrer to the evidence, (a) The Attorney’s Lien Act of February 25, 1901 (Laws 1901, p. 46), contains no emergency clause and inasmuch as the Legislature at that session adjourned March 18, 1901, the act took effect ninety days thereafter, to-wit: June 16, 1901. (b) The contract of employment between plaintiff and his attorney, Eedburn, having been made previous to the taking effect of the Attorney’s Lien Act and the suit having been filed May 17,1901, one month prior to the taking effect of the act, the commencement of this suit did not have the effect of conferring any lien on the plaintiff’s attorney and the first section of the Lien Act could in no sense apply, to this case. The act cannot be given a retrospective or retroactive application inasmuch as this is prohibited by the Constitution. Sec. 15, art. 11, Constitution; Young v. Eenshaw, 102 Mo. App. 187; Northrup v. Hayward, 102 Minn. 307. It is a well-settled rule in this State that acts of the Legislature must be given prospective and not retrospective operation; otherwise, they are unconstitutional by the express terms of the Constitution which prohibits the passage by the Legislature of any retroactive law. Walter v. Fudge, 63 Mo. App. 56; Hough v. Woodman, 85 Mo. App. 102; Seed v. Swan, 113 Mo. 100.

      John B. Cole, A. G. Burnett, E. L. Moore and H. W. Timmonds for respondent.
    (1) Hnder the Attorney’s Lien Act it is not necessary that the suit or cause of action be reduced to a verdict or judgment; the attorney’s lien is upon his client’s cause of action, from the commencement of the suit thereon, and if afterwards, the cause of action becomes merged into something else, the lien attaches to the thing into, which the cause of action is merged. Taylor v. Transit Co., 198 Mo. 725. (2) The act is remedial and will be liberally construed. Wait v. Railroad, 204 Mo. 501; Conlding v, Austin, 111 Mo. App. 301; Hansen y. Railroad, 173 N. Y. 492; Wolf v. Railroad, 155 Mo. App. 143. (3) Where a percentage contract exists and a judgment has been obtained, but not become a finality, a settlement and release is made, ignoring the plaintiffs attorney’s rights, the attorney’s lien is not destroyed, and the amount of the lien is controlled by the settlement. Wait v. Railroad, 204 Mo. 502; Curtis v. Railroad, 118 Mo. App. 341; Railroad v. O’Connor, 153 Mo. App. 139; Iiurr v. Railroad, 141 Mo. App. 222. (4) Prior to the enactment of the Attorney’s Lien Act, an attorney had no lien for his services on a judgment obtained by him for his client. Young v. Renshaw, 102 Mo. App. 184; Curtis v. Railroad, 118 Mo. App. 348; Conlding v. Austin, 111 Mo. App. 292. (5) To apply the act to the case at bar does not give that act a retroactive application or retrospective operation. While the attorney’s contract and the commencement of the suit antedate the day this act became effective, the judgment in this case' and the settlement both are subsequent to that time and this act applies, (a) In the case of Taylor v. Railroad, 207 Mo. 495, the contract and suit both antedated the day this act went into effect, but notice was served upon the defendant and settlement was made after the act became effective and this' court applied the Attorney’s Lien Act, held that section one of that Act fully authorized a recovery and affirmed a judgment in favor of the plaintiff’s attorney, (b) In the case of Young v. Renshaw, 102 Mo. App. 173, the contract and judgment both antedated the date this act went into, effect and was for that reason alone reversed. (6) The act does not give the attorney a new cause of action — his cause of action for services existed at common law — but gives a remedy for its enforcement and an act relating only to the remedy of an existing cause of action is not retrospective. Gibson v. Railroad, 225 Mo. 473; Clark v. Railroad, 219 Mo. 531; State ex rel. v: Taylor, 224 Mo. 393; Haarstick v. Gabriel, 200 Mo. 237; 0 ’Bryan v. Allen, 108 Mo. 227; Porter v. Mariner, 50 Mo. 364. (7) The Attorney’s Lien Act is a new remedial statute. Caldwell v. Ryan, 210 Mo. 41.
   BROWN C.

This is ,an action for damages for personal injury alleged to have been suffered by plaintiff December 26, 1900, while working for defendant in its mine in Jasper county, Missouri. The petition was filed in the Jasper Circuit Court and summons sued out May 17, 1901. The venue was changed to Barton county, where the cause was tried September 10, 1901, resulting in a verdict and judgment for plaintiff for three thousand dollars. Defendant appealed to the Kansas City Court of Appeals, and on December 17, 1902, the case was settled without the consent of the plaintiff’s attorneys, for nine hundred and fifty dollars paid plaintiff, who gave a full receipt and release therefor. The judgment was afterwards reversed and the cause remanded to the Barton Circuit Court, where it proceeded to trial for the benefit of the attorneys interested^ who intervened for that propose, resulting in a verdict and judgment for four hundred and seventy-five dollars in their favor,' from which this appeal is taken by defendant.

On April 6, 1901, the plaintiff made an agreement in writing with P. M. Redburn, an attorney at law, which was signed by both the parties, by which it was agreed between them that Redburn should bring and prosecute the suit to final determination, and that if the cause should be tried Mr. Redburn should receive for his services one half the money realized. All the intervenors claim under this contract.

In its pl-eadings, instructions and motion for a new trial, the appellant insisted upon the point that in its application to this case, the Attorneys ’ Lien Act of February 25, 1901, is retrospective in its operation and therefore in violation of section 15 of article 2 of the Constitution of the State.

OPINION.

Tie only questions raised by the appellant relate to the application of the Attorneys Lien Act of February 25, 1901 (Laws 1901, p. 46) to this cage_ The contract under which the amount of the recovery was liquidated, was made April 6, 1901; this suit was instituted May 17, 1901; and the act referred to, which first gave the attorney a lien upon the cause of action of his client, took effect June 16, 1901. Under these circumstances the appellant insists that to apply the provisions of the act in this case would be to give it retrospective operation, in violation of article 2, section 15, of the State Constitution. It contends that while this court, in Taylor v. Railroad, 207 Mo. 495, a similar case, upheld in general terms the constitutionality of the same act, its retrospective operation, as applied to the facts there in issue, was neither pressed upon it by counsel, nor referred to in its opinion. This is true; and in view of the argument of counsel, as well as of the authority cited by them, it is due that we should briefly state the process by which we have arrived at our conclusion.

The law under which the respondents are "asking to maintain this judgment, and to which we have already referred, is found in the Revised Statutes of 1909 as section 964, and provides that “from the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come; and cannot bo affected by any settlement between the parties before or after judgment.” The remedy pursued by thé intervenors is not questioned. The law is plainly remedial in character, for it simply provides a remedy by which one who performs valuable services for another may have compensation for his work out of that which it has contributed to produce. In such cases the courts do not torture the language of an act to defeat its evident purpose. In this case the language is plain. The lien which it creates attaches itself to the cause of action at each instant of the time of their coexistence between the bringing of the action and its enforcement. It does not affect the relation of the defendant to the liability upon which he is sued, any more than garnishment of a contract debtor affects the contract upon which the indebtedness accrues. He is liable to respond in debt or damages, as the case may be, upon the same liability and only to the same extent as if no lien had intervened.

In Clark v. Railroad, 219 Mo. 524, the court, construing this same provision of the Constitution, said: “The retrospective laws forbidden by that instrument are laws impairing existing vested civil rights. The law must take away such vested right, or it must create a new obligation, impose a new duty, or attach a new disability in respect to gone-by transactions, in order to be retrospective and under the constitutional ban.” It may be objected that this definition itself needs to be defined; that the real question is, what distinguishes a “vested civil right” from all those other rights that exist because the law permits, but which may, notwithstanding this and other constitutional provisions, be taken away at the pleasure and in the discretion of the Legislature. Laws are made to affect conditions already existing. They take hold of persons already born, and curtail or extend their permissive rights, not only with respect to their own persons, but also with respect to property they have already acquired, not excepting from the category of such property those valuable rights which lie in contract.

.The power to govern persons and things in their relations to each other, and to the state, which is the representative of all, subjecting all alike to the requirements of the general welfare, is the distinguishing attribute of sovereignty. This police power, as it is called, cannot be parcelled out or surrendered to the individual members of the political society, for without it government would be disintegrated into its original elements, and would cease to exist. All property, whether tangible or intangible, in possession or in action, consists of those rights and interests secured to the individual through the exercise of these police powers by the government. A vested right in the sense in which the term was used in the foregoing quotation is a property interest in the thing itself whether it exist in contract or possession; and it is subject to whatever burden may be imposed by the State for the general welfare; that is to say, for the enforcement and protection of the rights of all. Posjsibly, as in this case, one may be inconvenienced or annoyed by the process which the law gives to another for the preservation and enforcement of his right, but this is the price which one pays for his own, which may become more or less valuable, no matter which, by this deference to the general good. Laws providing and regulating remedies for the protection and enforcement of legal rights are peculiarly within that rule. It is of the very essence of good government that these remedies be not only simple. and effectual but that they be uniform. It is their uniformity that makes them just; for what can be more just than that all should contribute alike of their convenience as well as of their money, to the enforcement of the laws in their favor. While the Constitution withholds from the Legislature the power to create an indebtedness out of an incident which has been closed without such an effect under existing laws, the reasons upon which the restriction is founded do not seem to lead naturally to the conclusion that the same law for the collection of debts should not be open alike to all creditors who come within its provisions, whether the indebtedness is in existence at the time of its enactment or not. Much light is thrown upon this subject by the following Missouri cases and their citations: Peters v. Railroad, 23 Mo. 107, 111; Grannahan v. Railroad, 30 Mo. 546; Henschall v. Schmidt, 50 Mo. 454; citing Bolton v. Lansdown, 21 Mo. 399; Clark v. Railroad, supra; Gibson v. Railroad, 225 Mo. 473.

Applying these principles we are forced to the conclusion that the act in question does not affect any vested right of the defendant, but merely provides a remedy by which the property of a debtor in its hands may be made available to the creditor. The defendant has notice of the claim, the property to which it attaches is in its possession, and it is made its' duty to see to its distribution to those entitled.

We are aware that in Young v. Renshaw, 102 Mo. App. 173, 187, the St. Louis Court of Appeals, without either a statement of reasons or the citation of any applicable authority, held that the lien of the attorney did not attach to a judgment rendered in favor of his client before the taking effect of the act. That case only goes to the extent of holding that where the rights •of the plaintiff had been fixed by and merged in the judgment procured for him by his attorney, the passage of the act giving the latter a lien upon his client’s ■cause of action . . . “which attaches to a . . . judgment in his client’s favor,” did not relate back :so as to create upon the judgment a lien which had never attached to the cause of action before it' had been so merged. It is not necessary for us to examine this proposition. So far, however, as the language of the Court of Appeals is open to the construction that the lien created by section 964, from which we have quoted, does not' attach to a cause of action in existence at the time it took effect, it ought not to be followed.

The judgment is affirmed.

PER CURIAM

-The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    ANN O’MALLEY, an infant, by JOHN O’MALLEY, her Next Friend, v. HEMAN CONSTRUCTION COMPANY, Appellant.
    Division One,
    March 3, 1914.
    1. OWNERSHIP: Inference from Possession. Possession warrants an inference of ownership, and ownership having been found once to exist, the general rule is that it is presumed to continue until a change therein is affirmatively shown.
    2. -: ——: Evidence: Negligence. On the question whether or not the wagon that caused plaintiff’s injuries belonged to defendant, a witness testified that he was acquainted with the driver and saw him driving the wagon which struck the plaintiff, and that he personally knew that the team and wagon belonged to the defendant. On cross-examination this witness said he knew the wagon belonged to defendant because! he had worked next to defendant’s quarry (although before the injury to plaintiff he had ceased to do so), and had seen the-teams go into the stable there at night. Held, that the jury would have been warranted in finding the fact of defendant’s, possession from the witness’s testimony and in inferring his. ■ ownership from that possession.
    3. -;--: -: -: Master and Servant: Scope-of Employment. Where plaintiff seeks damages for being run down by a wagon, and there is sufficient evidence to warrant a finding that defendant owned the wagon, it is not necessary for plaintiff to show affirmatively tha,t the driver was defendant’s servant, or that he was acting within the scope of his. employment.

      4. NEGLIGENCE: Evidence: Question for Jury. Where the trial court, which set aside plaintiff’s involuntary nonsuit in an action for damages for being run down by defendant’s wagon, had before it the witnesses, together with plats of the vicinity, heard the testimony of one who saw plaintiff fall a short distance in front of the wagon, and comprehended the witness’s comparisons of that distance with distances in the court room, the ruling of the trial court that there was evidence of actionable negligence sufficient to take the case to the jury will not be disturbed, the plats having been omitted from the rscord and the other circumstances necessarily not appearing in it in such form that the Supreme Court can know what result they ought to induce.
    Appeal from St. Louis City Circuit Court — Ho». W. B. Homer, Judge.
    Affirmed and remanded.

      Rogers & Koerner for appellant.
    (1) Tbe evidence offered by plaintiff failed to make a prima-facie case, because it does not tend to prove: (a) That ber injuries were due to tbe negligence of tbe driver of tbe wagon; (b) that tbe driver was in defendant’s employ; or (c).tbat tbe driver, if in such employ, was acting Avitbin tbe scope of bis employment at tbe time of tbe injury. (2) Tbe evidence in tbe ease affirmatively shows that tbe accident was unavoidable on tbe, part of said driver, and is not susceptible of any reasonable inference to tbe contrary.

      Charles P. Comer, John A. Dowdall and Jesse L. England for respondent.
    The court did not err in setting aside tbe nonsuit and in granting plaintiff a neAv trial for the following reasons: (1) Plaintiff bad made out a prima-facie case, by showing that tbe team and wagon in question Avas tbe property of tbe defendant, .and that she was injured by tbe careless management of .said team and wagon by tbe person in charge of and driving same. Fleishman v. Ice & Fuel Co., 148 Mo. App. 132; Seaman v. Koehler, 122 N. Y. 646; Wylde v. Railroad, 53 N. Y. 156; Baldwin v. Abraham, 67 N. Y. Snpp. 1079; 1 Sh. & Red. Neg., sec. 158; Hall v. Railroad, 124 Mo. App. 671. (2) Plaintiff having proved the ownership of the team and wagon in the defendant established prima-facie the driver was a servant of defendant and acting within the scope of his employment at the time she was injured. Fleishman v. Ice & Fuel Co., 148 Mo. App. 132; Morris v. Kohler, 41 N. Y. 42; Abbott, Trial Evidence, 735; 22 Am. & Eng. Ency. Law (2 Ed.), 1278. (3) A demurrer to the evidence admits as true every fact which the testimony in behalf of the plaintiff tends to prove, and every inference which may reasonably be drawn therefrom. Hach v. Railroad, 208 Mo. 581; Kinlen v. Railroad, 216 Mo. 145; Pitthan v. Schaitaman, 127 Mo. App. 29.
   BLAIR, C.

This is an appeal from an order of the circuit court of the city of St. Louis setting aside involuntary nonsuit. The action was for damages for injuries to plaintiff (eight years of age when injured) occasioned by being struck by a wagon plaintiff claimed defendant’s servant negligently drove upon her.

Defendant assigns for error the ruling setting aside the nonsuit and contends the evidence does not tend to show (1) that the driver was in defendant’s employ; (2) or, even if so, that he was acting within the scope of his employment; (3) or that plaintiff’s injuries were due to the driver’s negligence or that he could have avoided the injury.

The driver testified he got the wagon he was driving when plaintiff was injured from “Heman’s” at “Heman’s bam” at the comer of Ashland avenue and Market street, but did not know whether it was the property of the Heman Construction Company; that Mr. John. Heman employed him, he thought, hut he did not know whether John Heman was connected with the Heman Construction Company. Another witness testified positively that he was acquainted with the driver and saw him and the wagon he was driving which struck plaintiff and he personally knew that the team and wagon belonged to the Heman Construction Company. This witness was cross-examined on this phase of the case as follows:

“Q. Now, how do you know what wagon belonged to the Heman Construction Company and what wagon does not belong to that company? A. Well, I worked right there next to his quarry for about a year and I used to see the teams go in that stable at night. Q. You worked next to whose quarry? A. Heman’s. Q. Who did you work for? A. Mike Hanneck. Q. When? A. It has been about a year and a half ago. Q. You mean in 1908? A. Yes, sir. Q. What time did you quit work there ? A. I don’t know just when it was I quit. Q. Bid you quit there in 1907; wasn’t it? A. 1907; I don’t know. Q. You were not working there in 1909 were you? A. I don’t know that. Q. You were not working there at the time when your sister (plaintiff) got hurt, were you? A. No, sir. Q. It was before that sometime, wasn’t it? A. I don’t know just exactly when it was. Q. Well,- it was before that when you worked there, wasn’t it? A. It was before that, yes. Q. Is that the only way you know; is that the only way you know of your own knowledge about the teams of the Heman Construction Company? A. Seeing them there at the stable. Q. That is all you know about those teams and who owned them, isn’t it? A. Yes, sir.”

In the same connection there was a friendly colloquy between the court and counsel relative to the admissibility of certain testimony of Officer Cousins, who arrested the driver of the wagon. This witness testified the driver told him the wagon was the property of the Heman Construction Company, the defendant here. Oh objection the court ruled the driver’s declaration was not competent to prove his agency for defendant and added: “I am simply permitting him (the witness) to say that he (the driver) was driving a wagon, and state that he was driving a wagon of defendant. That is what I understood him to say.” The witness: “Yes, sir.”

There was evidence tending to show that the wagon was moving north on Taylor avenue and that when it crossed the Wabash tracks about 250' feet south of the point where the injury occurred the driver was whipping the horses and they were going “awful fast —as fast as they could trot;” that there was no other wagon on the avenue; that plaintiff and her twelve-year-old brother were riding a bicycle, plaintiff sitting on the bicycle rod; that they rode eastward on Audubon avenue coming into Taylor avenue from the west and turning north upon it; that the wagon which struck plaintiff was near the Wabash tracks when the children rode into Taylor avenue; that plaintiff’s brother was propelling the bicycle north on the east side of Taylor avenue at a speed equal to that at which he could run when the wagon came rumbling up behind and when it was some twenty feet away plaintiff became frightened, began to scream and fell off the bicycle about fifteen feet in front of the wagon; that the wagon went right on over her. One witness who was in such position that he saw the child fall from the bicycle but could not see the wagon at that moment, because of intervening structures, testified that after plaintiff fell “it was not but a few seconds” until the wagon came into view and that the team and wagon moved its own length after coming into view.

There were plats in evidence not reproduced here but omitted by consent of counsel. There were also questions put to the brother of plaintiff relative to distances in the court room, these questions being designed to test the accuracy of his estimate of the distance in front of the wagon his sister fell. The result of these questions is n'ot in the record since the distances in the court room concerning which the witness was asked are not before us.

I. There was sufficient evidence of the ownership of the wagon by defendant to take that question to the jury. The witness Tom O’Malley testified the team and wagon belonged to defendant, and from his cross-examination it appears he drew the inference of such ownership from possession of the team by defendant sometime previous. The law in this State is that possession warrants an inference of ownership (Vogel v. St. Louis, 13 Mo. App. l. c. 119; State v. Boone, 70 Mo. l. c. 653) and the jury would have been warranted in finding the fact of possession from Tom O’Malley’s testimony and inferring the fact of ownership from that. The cross-examination, therefore, fell far short of destroying O’Malley’s direct testimony.

Further, ownership having been found once to exist, the general rule is it is presumed to continue until a change therein is affirmatively shown.

II. There being sufficient evidence to warrant a finding of defendant’s ownership of the wagon, it was not necessary for plaintiff to show affirmatively that the driver was defendant’s servant. This question is well considered in Fleishman v. Ice & Fuel Co., 148 Mo. App. 117. The same decision answers the suggestion relative to the evidence that the driver was acting within the scope of his employment. Counsel, however, disclaim reliance upon that suggestion.

III. So far as concerns the contention that there was, in any event, no evidence of action-, able negligence, but one phase need now be considered.

The trial court had before it the witnesses and the plats. It heard the testimony of Dan O ’Malley and heard and understood the comparison of his estimate of the distance the wagon was from his sister, when she fell, with distances in the court room. These things do not appear in this record in such form that we can know what result they ought to induce. The trial court was in a position to know, and held the case was for the jury. It must be assumed, for present purposes, that the distance was sufficient to have enabled the driver, after plaintiff fell and after he saw, or ought to have seen, her, to have stopped Ms wagon before injuring her. The presumption is the trial court ruled correctly, and the whole record not being here that presumption concludes the matter on this phase of the case. Defendant cites Lee v. Jones, 181 Mo. 291. It does not militate against what has been said. The judgment is affirmed, and the cause remanded.

Brown, C., concurs.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.