author: WALKER, J.

text:
    MAGDALINE C. JOHNSTON v. JOSEPHINE G. RAGAN et al., Appellants.
    In Banc,
    June 29, 1915.
    1. APPEAL: Abstract: Signed by Succeeding Judge: Imports Verity. Where the statute requires that if a judge who heard the cause shall go out of office before signing the bill of exceptions, “such bill, if . . . shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard,” a recital in the abstract that the bill was tendered to the succeeding judge in open court and was by him “signed and ordered to be made a part of the record therein,” imports verity, and is not overcome by an unsupported motion to dismiss the appeal; and from such recital, in the absence of anything to the contrary of sufficient force to impeach the record, it will be presumed that before the bill was signed by the judge he satisfied himself that it was correct.
    2. -: -: Documentary Evidence. Exhibits and other documentary evidence, called for in the original bill of exceptions and correctly set forth in the abstract or full transcript, will not be stricken out for the mere reason that they were not deposited with the clerk of the trial court. Section 2083, Revised Statutes 1909, amended in 1903, Laws 1903, p. 105, declaring that “any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court” may he considered on appeal, is not exclusive, but should receive a rational construction; if given an arbitrary one, private documents used at the trial often could not be preserved for consideration on appeal without a violation of the constitutional rights of their owners.
    3. TRIAL: Authority of Other Than Regular Judge. Under the statute (Sec. 3977, R. S. 1909) whenever a judge of any division of the circuit court of Jackson county is sick or absent or for any cause is unable to hold any term or part of a term of court, such term or part of the term, may, by request of the judge of such division, be held by a judge of any other division; and record recitals that the regular judge of the division was absent and unable to attend court and had requested the judge of another division to hold court in his stead, and that said judge appeared, tried the cause, rendered judgment, etc., reveal sufficient authority of the judge called in, to try the cause.
    4. -:--: Nunc Pro Tunc Entries: Correcting Bill of Exceptions. After an appeal has been taken from the judgment, a circuit court retains sufficient power over its own records to authorize it by a nunc pro tuno order to correct a bill of exceptions to the extent that it may speak the truth. Where there is ample record evidence from which the record could be amended to show the truth, namely, that the 'regular judge of a division of the circuit court of Jackson county was absent, that he requested the judge of another division to hold a part of a term for him, that such other judge appeared and tried the cause, rendered judgment, overruled the motion for a new trial and allowed the appeal, the record may be amended after the appeal has been taken so as to show those things, and thereby to demonstrate that the said judge had authority to try the cause.
    5. -: -:.-: Abstract: Additional by Respondent. Where appellant, though necessarily knowing that the judge of another division who was called in by the regular judge had authority to try the case, omits from his abstract the record recitals showing such authority, respondent may file an additional abstract showing such recitals,- and such additional abstract will become as much a part of the original abstract filed by appellant as if incorporated therein.
    6. -: -: Absence of Judge: Abstract. It will not be assumed that the regular judge was not absent during the trial before the judge of another division called in by request to try the case, if the abstract contains nothing to support the contention.

      7. -: -: -:--: Separate Certificate of Clerk. A separate certificate of the clerk of the trial court, showing two orders of adjournment signed by the regular judge, during the trial before a judge of another division who had been called in to hold a part of the term, cannot, under Sec. 2048, R. S. 1909, be considered. Nor is there any statute or rule requiring the respondent to include such orders in his additional abstract.
    8. APPEAL: Abstract: Piecemeal: Supplying Omissions. An abstract of the trial record cannot be made up by piecemeal; nor will the clerk’s certificate of record entries by which it is attempted to supplement the bill of exceptions and to incorporate therein an alleged error which is purely an afterthought, to which no exception was saved during the trial, and which is no part of the appeal, be considered by the appellate court.
    9. TRIAL: Power to Call In Another Judge: From Same Circuit. Under section 29 of article 6 of the Constitution declaring that “in any case where the judge cannot preside, the General Assembly shall make such additional provisions for holding court as may be found necessary,” the Legislature had authority to enact a statute authorizing the judge of one division of the circuit court of Jackson county to call in the judge of another division to hold court in his absence or sickness. The legislative power was not restricted to calling in a judge from another circuit.
    10. -: Absence of Judge: Sufficient Recital. A record recital which states as the reason for the calling in of a judge of another division of the circuit court of the county to try the case “the absence and inability” of the regular judge “to attend and try the case” states a sufficient reason for calling in such . judge.
    11. -: Abstract: Amendment so as to Show Title. Where appellants did not submit the bill of exceptions to respondent’s counsel for approval before it was signed by the judge, and they did not know until after the abstract was printed that it did not contain the deed of trust made by the common source of title and the foreclosure sale thereunder, the trustee’s deed to respondent, and the other evidence showing title in her, it was in the interest of justice and right for the trial court to amend the bill of exceptions so as to make it show these things, and.then for respondent’s counsel to incorporate them in an additional abstract.
    12. LIMITATIONS: Notes: Pleading: Burden. In a suit to quiet title in which plaintiff depends upon a foreclosure sale and trustee’s deed under a deed of trust, the defense that the notes were barred by the Statute of Limitations, being a special plea, is available only by an affirmative answer setting up the statute; and having been pleaded, the burden rests upon defendant to prove that the cause of action did not accrue within the time prescribed by the statute.
    13. -: -: Tolled by Payments. Indorsements before they are barpred, of payments upon, notes, on their face barred by the Statute of Limitations at the time the deed of trust given to secure them was foreclosed, and proof that such indorsements were in the handwriting of the maker, and oral proof that they were intended to apply and were applied as credits, will save the notes and the deed of trust from the operation of the statute.
    14. -: -: Deed of Trust. If the notes to secure whose payment the deed- of trust was executed are not barred by limitations neither is the deed of trust.
    15. -: -: Pleading: General Denial. A general denial by reply to defendant’s answer pleading the Statute of Limitations as a defense to notes which on their .face are barred is sufficient to make admissible proof that the running of the statute was interrupted by the indorsement of payments thereon before they were barred and that said indorsements were intended to be and were applied as credits thereon. [Distinguishing Keeton v. Keeton, 20 Mo. 530, decided prior to adoption of Code in 1849, and subsequent cases in which that is incidentally referred to with approval.]
    16. --: Mortgage: Partition Before Foreclosure Sale: Title of Coparceners. Lands were partitioned during the life of a deed of trust and a judgment entered dividing the lands in kind between certain coparceners and affirming title in them, and afterwards their title was conveyed to the mortgagor, the common source, who remained in open possession for sixteen years, and then conveyed to defendants. Upon the foreclosure of the deed of trust, the mortgagee, who was not a party to the partition suit, became the purchaser and received the trustee’s deed. Held, that the mortgagee, and not the defendants, has the title.
    17. INSTRUCTIONS: General Assignment. A general assignment that the trial court committed error in giving certain instructions, with no definite statement as to wherein they were erroneous, does not authorize the appellate court or require respondent’s counsel to analyse by comparison and contrast all the ■declarations to ascertain in what particular appellant claims .error was committed.

      Appeal from Jackson Circuit Court. — Hon. R. ZL Middlebrook and Hon. W. A. Powell, Judges.
    Affirmed.

      William G. Forsee for appellants.
    (1) Judge Park was without power to hear the case, (a) The suit was filed at Independence, where Judge Powell presided. The record does not show that Judge Powell was “sick, absent or from any cause” was unable or-disqualified to try the case. On the contrary, the record shows that he was present and holding court. Judge Park was, therefore, without power to hear the evidence, or to take any other step in the case. R. S. 1909, secs. 3960, 3967, 1927, 1928; Laws 1905-, p. 123, sec. 7; Laws 1907, p. 202, sec. 5, .and p. 203, sec. 1; Ladd v. Forsee, 163 Mo. 509; Bank v. Graham, 147 Mo. 250. (b) In Jackson county, as in St. Louis, each judge, after a case has been assigned to him, is, as to that case, the sole judg,e of the court. Two of the judges cannot at the same time or place hold the court, nor can two of them try the same case. Here the record entries show that Judge Park heard the evidence, and Judge Powell rendered the judgment. R. S. 1909, chap. 35, art. 8; Haehl v. Railroad, 119' Mo. 337; State ex rel. v. Eggers, 152 Mo. 487; Goddard v. Delaney, 181 Mo. 581; Vaullaire v. Yaullaire, 45 Mo. 602; Telford v. Ramsey, 43 Mo. 417. (2) There is no evidence whatever in the record to show that respondent had any .right, title, interest or estate to the land in question. The court should, therefore,’have sustained appellants’ demurrers to the evidence. (3) Respondent failed 'to plead payment, new promise, etc. (a) The notes described in the deed of trust to Witten, and the deed of-trust itself were, ten years after its date primafacie barred by the statute. Appellants pleaded the ten year Statute of Limitation. If payments had been made, or if anything else had accrued which in effect avoided the statute, it devolved upon respondent to plead it by reply. E. S. 1909, sec. 1809; Wood on Lim. (1 Ed.), secs. 7, 81; 25 Cyc. 1415, 1416, 1419, 1420, 1422; Sanders v. Chartrain, 158 Mo. 361; Zoll v. Carnahan, 83 Mo. 41; Moore v. Granby, 80 Mo. 91; Ferguson v. Dalton, 158 Mo. 323; Eivers v. Blom, 163 Mo. 448; Young v. Glasscock, 79 Mo. 576; Stevenson v. Smith, 189 Mo. 466; Cunningham v. Eausch, 157 Mo. 341; Hunt v. Searcy, 167 Mo. 184; Campbell v. Laclede Co., 84 Mo. 375. (b) ■ The notes and deed of trust showed upon their face that they were barred on May 10,1905. Eespondent by failing to plead in reply such facts as tolled the statute, confessed the bar. Capen v. Goodrow, 51 Yt. 106; Jessup v. Effing, 66 Ga. 334;' Davis v. Davis, 98 Me. 135; Diehlman v. Bank, 8 S. D. 263; 25 Cyc. 1425. (c) “Where the cause of action is prima facie barred by limitations, the burden is not on defendant, even though he pleads the facts on which the bar is sought to be established.” 25 Cyc. 14.26,1428; 8 Ency. Ev., pp. 320, 321, 322, 324; Easter v. Easter, 44 Kan. 151. (4) The indorsements on the Eagan notes were not admissible, until it was first shown on what date they were made, and that on said dates payments were actually made. E. S. 1899, sec. 4294; E. S. 1909, sec. 1909; Goddard v. Williamson’s Admr., 72 Mo. 131; Haber, Admr., v. Schwyhart, 39 Mo. App. 303; Briscoe v. Huff, 75 Mo. App. 290; Gardner v. Early, 78 Mo. App. 350; Hernden v. Lewis, 175 Mo. 116; Elsea v. Pryor, 87 Mo. App. 157. (b) Even if Eagan in person made the endorsements, they were not for that reason admissible. They were neither an “acknowledgment” of, nor a “promise” to pay the debt, nor were they “subscribed by the party chargeable thereby.” E. S. 1889, sec. 4294; Wood on Lim. (1 Ed.), secs. 94, 92; Bayley v. Ashton, 12 Ad. and E. 493; Hyde v. Johnson, 2 Bing. (N. C.) 776; Woodridge v. Allen, 12 Mete. 470; Palmer v. Butler, 36 Iowa, 576; Wells v. Hargrove, 117 Mo. 563; Chambers v. Rubey, 47 Mo. 99; Kirkbride v. Gash, 34 Mo. App. 256; Mastín v. Branham, 86 Mo. 640. (c) Exhibit 20 was neither an “acknowledgment” of the debt, nor a “promise” to pay it. Monroe v. Herington, 110 Mo. App. 516; Corbin v. Brockmeyer, 84 Mo. App. 653. (d) An alleged waiver of the statute must be pleaded as any other estoppel. 25 Cyc. 1416. (e) There being no plea of any facts tolling the statutes, no evidence of such facts was admissible, and the court erred.

      R. E. Field for respondent.
    (1) Appellants having been notified of respondent’s motion to amend their bill of exceptions, and having appeared thereto and saved no exception to the order amending their hill of exceptions, it must be presumed that the court then properly ordered inserted, in appellants’ bill of exceptions the deed from Witten, trustee, to respondent, as having been offered in evidence at the trial of this cause. Bank v. Allen, 68 Mo. 474; Harlan v. Moore, 132 Mo. 483. The court had a right to so amend appellants’ bill of exceptions. R. S. 1909, secs. 1850, 2028. On the stenographer’s notes showing said deed was offered in evidence on the trial of this cause, as stated in said order. Ross v. Railroad, 141 Mo.,390; West v. Burney, 71 Mo. App. 271. And1 also for the other reason stated in the order of the court, to-wit:■ because appellants’ bill of exceptions shows that both appellants and respondent treated the said deed as in evidence in the case, both in the evidence and in the declarations of law asked by them. Hayden v. Alkire Groe. Co., 88 Mo. App. 241; Harding v. Bedoll, 202 Mo. 635; Reed v. Colp, 213 Mo. 584. (2) It therefore follows, if appellants’ bill of exceptions, filed June 27, 1910, was lawfully a part of the record, then the said amendment made thereto by the order of the court, December 27, 1912, became a part of said hill of exceptions, the same as if made, June 27, 1910', the day appellants filed said bill of exceptions. Dorrance v. Dorrance, 242 Mb. 625; Gamble v. Daugherty, 71 Mo. 601. (3) Appellants ’ willful omission of this deed in their abstracts filed in this court, calls for a firm enforcement of rule 16, and respondent’s motion to dismiss the appeal should be sustained. Brand v. Cannon, 118 Mo. 595; Nolans v. Johns, 126 Mo. 167; Eli v. Coontz, 167 Mo. 371. (4) Respondent’s filing of an additional abstract of the record, supplying the amendment made to appellants’ bill of exceptions omitted in appellants’ abstract, should not be held ás a waiver of appellants’ motion to dismiss the appeal or as an estoppel of respondent to make this motion, because by rule 11, respondent was required to file the additional abstract within a given time or submit to the false condition of the record, thrust upon her by appellants’ abstract. Donnell v. Wright, 147 Mo. 648; Bailey v. Kansas City, 189 Mo. 504.' (5) Appellants’ abstract wholly omitting the record entry of February 21,1910, appellants cannot complain that the record, of that day does not show Judge Park was authorized to hold the court that day. Pullis v. Summerville, 218 Mo. 633. (6) From beginning to end of these proceedings no exception was taken .by appellants to Judge Park’s acting as the court in this cause and for that reason, his right, as one of the judges of the circuit court of Jackson county, to act as the court in this cause, cannot be questioned by appellants. McCune v. Goodwillie, 204 Mo. 333; Collier v. Lead Co., 208 Mo. 264; Steams v. Railroad, 94 Mo. 321; Rule 9' of the court. Respondent’s abstract of the record sets out the record entry of Judge Powell’s absence and inability to attend the court and his request to Judge Park to sit and hold the court in his stead, and Judge Park’s holding the court, February 21 and 23,1910, omitted in appellants ’ abstract. Judge Park was therefore the lawfully constituted court at the trial of this cause, at Independence. State ex rel. v. Allen, 235 Mo. 298; State ex rel. v. Williams, 136 Mo. App. 330. But, if the record were silent, as to the reason for Judge Powell’s absence and Judge Park’s presence as the court, Judge Park being one of the judges of the circuit court, his presence as the court would be presumed rightful and legal. Rigs v. Owen, 120 Mo. 176; State v. Newson, 129 Mo. 154; Grates v. Tusten, 89 Mo. 13; Danwalter v. Railroad, 115 Mo. Aipp. 577; State v. Hunter, 171 Mo. 440. And, Judg-e Park having lawfully held the court and heard the evidence in this case on February 21 and 23, 1910, as shown by the record entries, he had a right to sit again as the court and‘to render the finding and. judgment in this case, on March 5, 1910, though Judge Powell may also have held the court on that day in other cases. State ex rel v. Williams, 136 Mo. App. 330; State ex rel. v. Allen, 235 Mo. 298. The court had a right and it was its duty to make the nunc pro tunc entry. Freeman on Judg., sec. 63; R. S. 1909, secs. 1851, 2120; Turner v. Christie, 50 Mo. 145; Clark v. Railroad, 242 Mo. 570; Buchanan v, Louisiana Purchase Exp., 245 Mo. 337. (7) Respondent was required to show only the better title, to entitle her to the decree adjudging her title to the real estate in controversy; as against appellants. Graton v. Land & Lumber Co., 189 Mo. 322; Charles v. White, 214 Mo. 231; Gage v. Cantwell, 191 Mo. 698. (8) The .foreclosure of a deed of trust in or out of court is not barred, though suit on the note may be barred, unless the land be held in adverse possesion against the same, and no adverse possession will be presumed as to the possession of mortgagor and those claiming under him. Choteau v. Burlando, 20 Mo. 482; Booker v. Armstrong, 93 Mo. 49; Atchison v. Pease, 96 Mo. 567; Gardner v. Terry, 99 Mo. 523; Benton Co. v. Czarlinsky, 101 Mo. 275; Chouteau v. Riddle, 110 Mo. 366; Ivy v. Yancy, 129 Mo. 501. Mrs. Johnston’s redeeming! the lot in controversy from tax sales on request of Stephen C. Ragan, shows he was not claiming the lot adversely to this mortgage. Eyerman v. Pirón, 151 Mo. 107. (9) Respondent was not required to plead Stephen 0. Ragan’s payments on the notes described in the deed of trust nor to plead his written waiver of the Statute of Limitations on said deed of trust. Spore v. Land Co., 186 Mo. 656. The plea of the Statute of Limitations, alleged in appellant’s answers against the deed, dated August 14, 1909, made by Witten, trustee, to respondent, was unnecessary to the issue of the Statute of Limitations on said deed, and being superfluous required no reply from respondent. Jordan v. Buschmeyer, 97 Mo. 94; State ex rel. v. Ran, 93 Mo. 126; Mfg. Co. v. Tinsley, 75 Mo. 458 ; Jones v. Rush, 156 Mo. 364; State ex rel v. Peterson, 142 Mo. 526; Bolton v. Railroad, 172 Mo. 92. Proof of title by grant, estoppel or adverse possession is admissible under the general allegation of title in the .petition or the general denial of that allegation in the answer. Fulkerson v. Mitchell, 82 Mo. 13; Young v. Glascock, 79 Mo. 574; Atchison v. Pease, 96 Mo. 566; Hart v. Steedman, 98 Mo. 452; Coleman v. Drane, 116 Mo. 388; Davis v. Braswell, 185 Mo. 576. Besides, the respondent’s reply, expressly denying the especially pleaded bar of the Statute of Limitations alleged in appellant’s answer, authorized proof of any fact showing the absence of such bar of the statute. State ex rel v. Peterson, 142 Mo. 526; Bolton v. Railroad, 172 Mo. 92. (10') Proof that S. C. Ragan made the written indorsements of payments on the back of his notes in question was competent evidence as written admission made by him, and creates a presumption that such payments were made by him on the dates he wrote thereon. Gage v. Averill, 57 Mo. App. Ill; Carter v. Carter, 44 Mo. 195; Kemble v. Logan, 79 Mo. App. 253. (11) Exhibit No. 20, proven to be in the handwriting of Stephen C. Ragan, dated November 24,1902, within seven years before the foreclosure of the deed of trust says: “I hereby waive Statutes of Limitation on mortgage on lot 1, Blue River Park, S. C. Ragan.” This was a sufficient acknowledgment of the deed of trust in question. Carr v. Hurlbut, II Mo. 263; Chidsey v. Powell, 91 Mo. 622.
   WALKER, J.

Tliis is an action brought in the circuit court of Jackson county at Independence in October, 1909, under section 2535', Revised Statutes 1909, to ascertain and determine the title to certain land in said county described in the petition. Upon a trial, before the court, judgment was rendered for the plaintiff, from which the defendants appeal.

Stephen C. Ragan, who died in October, 1908, was the common source of title. The plaintiff was his sister. In 1887 and 1888 she loaned him and another $7200, evidenced by four promissory notes in different amounts and due at different times, the last maturing May 15,1890. These notes were payable and delivered to plaintiff and were signed by Stephen C. Ragan and his co-maker. To secure their payment Stephen C. Ragan and his wife, Josephine Gr., one of the defendants here, on May 10,1895, made and delivered to plaintiff a deed of trust on the land in question, naming therein Thomas A. Witten as trustee. In August, 1909, default having been made in the payment of said notes, the trustee sold the land therein described to satisfy the debt, and the plaintiff became the purchaser for the sum of $2000. The trustee thereupon executed and delivered a deed to the property to the plaintiff, and it is under this conveyance she claims title.

The defendants who are contesting this proceeding are Josephine Gr. Ragan, the widow of Stephen C., and Greenberry Ragan, one of his sons, and William C. Forsee, counsel for defendants. Several other defendants named in the petition made default. Josephine G. claims title by devise, her husband having bequeathed to her all of his real estate. Greenberry Bagan and William C. Forsee claim title by mesne conveyances from others than Stephen C. Ragan.

There is no controversy concerning the pleadings as such, bnt it will become necessary to discuss the replication in determining whether error was committed in the admission of certain evidence to avoid the bar of the Statute of Limitations. The petition is in the usual form. The answers of the defendant Josephine G. Eagan, who pleads separately, and Green-berry Eagan and William C. Forsee, who plead jointly, are substantially the same except as later noted. They deny plaintiff’s claim of title, assert, ownership in fee, and plead that the notes described in the deed of trust, under the foreclosure of which plaintiff claims title, were barred by the Statute of Limitations, and that the trustee Witten’s deed to plaintiff under said foreclosure and sale was void and conveyed no title; and that S. C. Eagan did not at any time execute or deliver to plaintiff any of said notes or a deed of trust conveying said lot to Witten as trustee to secure to plaintiff, her heirs or assigns, the payment of any of said alleged notes, and that no sale of said lot was made by said Witten or other trustee under such deed- of trust. In addition, the defendants Greenberry Ragan and William 0. Forsee claim title under a judgment and sale of said land in partition made in 1886; that all persons under whom plaintiff and these defendants severally claim title to the lot here in controversy were parties to said partition action; that in and by the decree rendered in said cause said land was partitioned in kind and the lot here in controversy was allotted to and the title thereto confirmed in those under whom these defendants claim, and from whom, by proper mesne conveyances they derived title; that these defendants by such conveyances acquired and yet hold and own, as such tenants in common, the title in fee to said lot, said Greenberry Eagan being the owner of an undivided two-thirds thereof, and said Forsee of an undivided one-third thereof.

• Plaintiff’s replies denied each of the allegations of the answers, except that she alleged she had acquired and held title to the land in question under the deed made to her by the trustee Witten by reason of the foreclosure of the deed of trust and the sale of said land to satisfy the notes made to her by S. 0. Ragan.

I. Sufficiency of Abstract of Record.- — Motions filed by plaintiff attack the integrity of the abstract of record. These demand disposition before considering the exceptions submitted by the appeal.

The grounds of these motions will be discussed in the order in which they have been pleaded.

The first contention is that the abstract does not show that plaintiff or her attorneys agreed to the bill as true or that the judges who signed same, or either of them, found the bill to be true. This contention is, of course, based upon what is shown by the abstract of the record, which alone is proper matter for our consideration on account of the manner in which the proceedings are brought to this court for review.

The statute upon wdiich this contention is based is as follows:

“In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard.” [Sec. 2032, R. S. 1909.]

The order entered of record of the filing of the bill of exceptions, as shown by the abstract, is as follows :

‘ ‘ N'ow at this day come defendants (naming them) in open court before Hon. Walter A. Powell, regular judge of this court at Independence, and Hon. R. B. Middlebrook, successor in office to Hon. John Q-. Park, late judge of Division One of this court at Kansas City, before whom this case was tried at Independence, said judges sitting .together, and tendered to said judges their bill of exceptions herein, which bill of exceptions is by said judges signed, allowed and ordered to be filed, and the same is filed and made a part of the record herein.”

The statute above quoted, which authorized the signing of this bill by the succeeding judge, is in the disjunctive, and whether or not it be necessary to the validity of the action of the judge who signs the bill that such bill be “agreed to be true” by the parties to the action or their attorneys, or that it be shown to him to be correct, we must presume, in the absence of anything to the contrary of sufficient force to impeach a record, that before the' bill was signed by these judges they satisfied themselves'as to its correctness, because the record they have here made was within the limit of their judicial power and imports verity, for not only does it appear in tbe abstract filed by defendants, but in the additional abstract filed by plaintiff, that the bill “was tendered in open court and was by said judges signed and ordered to be made a part of the record therein.” This is all, under any reasonable construction of the statute, that can be required. It is true that so far as the requirements of the statute are concerned it is not necessary that this bill should have been signed by Judge Middlebrook, but his signature can in nowise affect the validity of that of Judge Powell, who, it clearly appears from the record, “was the succeeding judge of the court where the cause was heard.” More especially is the rule true in this case that the record under discussion imports absolute verity, because it is not sought to be overcome except by the unsupported motions of the plaintiff.

In State v. Taylor, 171 Mo. l. c. 475, affidavits of witnesses were tendered in support of a motion to impeach a record, and the court, in disposing of the matter, said: “Upon this question the record, which imports absolute verity, is sought to be overcome and shown to be false by the affidavits of witnesses in regard to which there can be no difference of opinion. If the record entries of a court of record can be overcome in this way, then the truism that such records import absolute verity is a deception and a snare. ’ ’

It is next contended that the exhibits introduced in evidence and set out in the abstract of the record should be stricken out because same were not deposited with the clerk of the trial court but were simply called for in the original bill of exceptions and subsequently incorporated at length in defendants’ abstract. The portion of the statute relied upon to sustain this contention is as follows :

“But it shall not be necessary for the review of the action of any lower court on appeal or writ of error that any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court; Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same and the same are so copied into the record sent up to the appellate court.” [Sec. 2083, B. S. 1909.]

This statute was rendered more comprehensive under the amendment made thereto in 1903 (Laws 1903, p. 105), in adding to the instruments or documents not theretofore required to be set out at length in the original bill of exceptions others therein named, provided same were deposited with the clerk of the trial •court, when, without more than a general call therefor, they were authorized to he included in the bill; this amendment, however, is not to be so construed as to render the abstract of the record or the full transcript filed in the appellate court subject to attack for insufficiency here on account of a failure to deposit any of the instruments or documents referred to, provided same have been correctly set forth in the abstract of the record or full transcript transmitted to this court. Such an interpretation as is sought to be given this section by plaintiff would not only work a hardship in many instances on parties not immediately interested in the suit, but would be difficult if not impossible to comply with; oftentimes the evidence offered would consist of private papers, which a witness could not be required to deposit, except in violation of his constitutional rights as to property, or they might consist of public records, which could not from their nature be deposited, or such as were in use in a witness’s private business and which he could not without detriment thereto be deprived of. The general rule is that all laws should receive a rational and not an arbitrary construction. [State ex rel. Spriggs v. Robinson, 253 Mo. 271.] Any other than the construction we have given the section under review would deprive the appellant, in the event of his failure or inability to deposit with the clerk of the trial court all instruments or documents not set out in full in the original bill, of the benefits of his appeal, a right clearly accorded him under other statutes than the one here considered, although, as.is the case here, there might be no claim that the abstract was in anywise incorrect.

Statutes are not to be construed so as to result in an absurdity or to impose unnecessary burdens, and, in the absence of express terms, it will not be presumed that the Legislature intended to authorize and require an unreasonable proceeding. [Neenan v. Smith, 50 Mo. 525.] Fortunately we are not without support in our reasoning in this matter. In Quail v. Lomas, 200 Mo. l. c. 683, this court held that the conclusion here reached is the correct one. In construing the statute (Sec. 2083, supra) Gantt, J., speaking for the court, said: “Indeed, the only additional thing which the act above noted requires is that the documents therein referred to shall be deposited with the clerk to remain in his cusody until after the determination of the cause in the appellate court.’ This provision is a wise one and will obviate all difficulty as to the identity of the instruments copied into the transcript and those offered and read in evidence on the trial, but while the act permits the instruments or documents named therein, when properly identified and deposited with the clerk, to be copied and set forth in the transcript without having been copied at length into the bill of exceptions, there are no negative words indicating that a bill of exceptions calling for documents and instruments in the manner long approved by the decisions of this court would not constitute a part of the record, and that those instruments should not be copied in full by the clerk in certifying the transcript to this court or by counsel by making their abstracts under the provisions of section 813 [now Sec. 2048]. ’ ’ Then follows a discussion as to the particular instruments, to-wit, a deed of trust and a trustee’s deed, which had been introduced in evidence and were called for by the bill of exceptions but had not been deposited with the clerk, in regard to which the court, continuing, said: “If either of said instruments had been incorrectly copied or matter interpolated into them which was not therein when they were offered and read in evidence, it would have been perfectly competent for the defendants in this case to have called attention to these inaccuracies or unauthorized interpolations and corrected the same by their counter abstract, but it will be observed that it is not claimed by defendants that these documents as copied into the plaintiff’s abstract are not correctly and truly set forth therein, but merely that because they were not filed and left with the clerk to remain in his custody until after the determination of this appeal, they cannot be considered. We are unwilling to give the statute such1 a narrow construction. ’ ’

We would not be understood as holding, nor is it so held in Quail v. Lomas, that a respondent may not opportunely take such steps below as to compel the ap^ pellant to comply with section 2083, supra, in making up the original bill of exceptions; but, when a complete transcript or an abstract of the record has been made out in full compliance with section 2048, Revised .Statutes 1909, and has been filed in this court and is admitted to be correct in every other particular, we will not question its verity on the alleged ground that parts thereof were not deposited with the clerk of the trial court, but were simply called for in the original bill.

We therefore overrule plaintiff’s motions.

II. Authority of Other Than Regular Judge.— It is contended that Hon. John Gr. Park, who tried this case, was without judicial authority in the premises, and as a consequence the proceeding lacked legal sanction.

Jackson county, in which are located Kansas City and Independence, constitutes, under our legislative enumeration of circuit courts, the Sixteenth Judicial Circuit, composed, at the time of this trial, of eight subdivisions, of' which the Independence Division, where this case was tried, was one. The regular judge of the Independence Division at the time was Hón. Walter A. Powell, and Hon. John Gr. Park was a regular judge in one of the subdivisions of the circuit court in Kansas City. Under section 3977, Revised Statutes 1909, it is provided, among other things, that whenever the judge of any division of a circuit court having more than two divisions shall be sick, absent or from any cause unable to hold any term or part of term of court in such division, such term or part of term may, by request of the judge of such division, be held by a judge of any other division of said circuit court. Under the sanction of this statute it appears in plaintiff’s additional abstract filed herein, that on February 21, 1910, the following order was made and entered of record in said Independence Division of the circuit court:

“Court met pursuant to adjournment. Judge Walter A. Powell being absent and unable to attend court and having requested Hon. John G. Park to hold court in his stead, the Hon. John G. Park being present held court and the following proceedings were had and entered of record. . . .”

The minutes then disclose the waiver of a jury by the respective parties, the taking and submission of testimony, and an adjournment of the court until February 23,1910. On this day court met pursuant to adjournment, present same as on February 21, 1910, and the following was entered upon the record:

“Magdaline Johnston, Plaintiff, vs. Josephine G. Eagan et al., Defendants.

“Now on this day comes plaintiff by attorney and defendants appear in person and by attorney. The .trial of this cause having been heretofore commenced on the 21st day of February and all of the evidence having been submitted to the Court, Honorable John G. Park, and said evidence being concluded on this date, said judge takes said ease under advisement. ’ ’

Thereafter appears of record this entry:

“Now, on this March 5, 1910, the 69th day of the 1909 December term of the court, Hon. John G. Park, one of the judges of the circuit court of Jackson county, Missouri, again sitting and acting as the court in cause No. 22713, entitled Magdaline C. Johnston, plaintiff, vs. Josephine G. Eagan et al., defendants, now orders and causes to be entered and made of record in said cause the following:”

This is followed by a finding that defendants Josephine G. Ragan, Greenberry Ragan and William C. Forsee have no title, estate or interest in the land in controversy, describing same as in plaintiff’s petition, followed by a judgment so determining the title and adjudging plaintiff to own the fee in and be entitled to said land.

Motions for a new trial and in arrest of judgment were then filed by defendants and by their consent same were at once considered and overruled by the court, Judge Park sitting, and time was granted for the filing of a bill of exceptions.

In April, 1910, Judge Park resigned as circuit judge and R. B. Middlebrook became his successor. On June 27,1910, within thé time granted by the court for the filing of the bill of exceptions, appears the following record entry:

“New on this day come defendants, Josephine G. Ragan, Greenberry Ragan and W. 0. . Forsee in open court before Hon. Walter A. Powell, regular judge of this court at Independence, and Hon. R. B. Middle-brook, successor to Hon. John G. Park, late judge of Division One of this court at Kansas City, before whom this cause was tried at Independence, said judges sitting together, and tender to said judges their bill of exceptions herein, which bill of exceptions is by said judges signed and ordered to be made a part of the record herein.”

The signatures of the judges of the circuit court who signed the bill of exceptions prepared by defendants, towit,' Judge Middlebrook, the successor of Judge Park, and Judge Powell, of the Independence Division, are preceded by this statement:

“All of the foregoing proceedings of the court in this pause recited in this bill of exceptions were by and before Hon. John G. Park, judge of the circuit court of Jackson county, Missouri, and regular judge of Division One of the court at Kansas City, who resigned his office and ceased to act as judge of said division in April, 1910.”

Following this is the usual tender of the bill and the prayer of the defendants that the court may allow and sign same, which was done, same being signed by the two said judges.

Upon the filing of their bill of exceptions in the trial court defendants filed here a short form of transcript followed by what should have been “an abstract of the entire record of said cause” (Sec. 2048, R. S. 1909) but inadvertently, we presume, omitted therefrom the entries in regard to Judge Powell’s absence, the calling in of Judge Park and his judicial participation in the trial until after the overruling of the motion for a new trial. This necessitated the filing of an additional abstract by plaintiff under section 2048, supra, setting forth the omitted entries which have heretofore been discussed. The transcript of the proceedings, thus completed, shows that Judge Park did not act without authority.

But defendants contend, despite their necessary knowledge of the calling in and presence of Judge Park during the trial, that they were authorized to ignore and omit the entries included in plaintiff’s additional abstract from their bill of exceptions and their original abstract, because the clerk of the trial court had improperly failed to enter them on the record. This pretext for the omission by defendants of these entries from their abstract is not indicative of a disposition to comply with the reasonable requirements of section 2048, supra; however, if the contention possessed merit, it can afford no aid to defendants, because, upon the discovery of the omissions, plaintiff proceeded in a formal and authorized manner, after due notice to defendants, to procure from the trial court a nunc pro tunc order requiring the omitted order's' to be entered upon the record, and it was upon the record thus amended that plaintiff based her additional abstract.

While it is true that a circuit court loses jurisdiction of a case by appeal, it still retains sufficient power over its own records to authorize it by a nunc fro tunc order to correct a bill of exceptions to the extent that it may speak the truth. [Wilson v. Darrow, 223 Mo. l. c. 528; State v. Gordon, 196 Mo. l. c. 196; Reed v. Colp, 213 Mo. 577, 586; Althoff v. Transit Co., 204 Mo. 166, 172; Coy v. Landers, 146 Mo. App. 413; State v. Libby, 203 Mo. 596; Ward v. Bell, 157 Mo. App. l. c. 528.] This application was properly addressed to and the order made by the trial court. [West v. Burney, 71 Mo. App. 271, 273; Gamble v. Gibson, 83 Mo. 290.] The propriety of .this course is evident in that the errors should, and in fact can only be properly corrected, where committed.

There was ample record evidence here from which the amendments could be made if the facts themselves had not been admitted, and under such circumstances it was not material that at the time of the application the judge was out of office who had signed the bill. [Baker v. Railroad, 122 Mo. 533,] The amendments referred to having been properly made, the additional abstract filed here by plaintiff became as much a part of the abstract filed by defendants as if originally incorporated therein. [Gamble v. Daugherty, 71 Mo. 599.] Thus made to speak the full truth, it showed not only Judge Park’s authority to sit in the trial of the case, but that he continued to sit until the motions for a new trial and in arrest of judgment had been submitted and overruled.

But it is contended that” Judge Park could not legally have tried this case because it is asserted the record shows that Judge Powell was’not absent during the trial. The abstract contains no entry supporting this contention, nor is it supported by the bill of exceptions which defendants have deemed it necessary to deposit with the clerk to sustain their statement in this regard. A separate certificate of the clerk of'the trial court shows two orders of adjournment signed by Judge Powell during the trial of this case by Judge Park, but they are not submitted for our consideration under the authority of section 2048, supra, nor is it claimed that the record entries supplied by plaintiff’s additional abstract are incorrect, but that these alleged orders of adjournment should have been included therein. There is no statute or rule of appellate procedure which required the plaintiff to include these entries in her abstract. [State ex rel. v. Thomas, 245 Mo. l. c. 75.] If grounds for exception, they should have been included in defendants’ bill, which would have authorized their incorporation in the original abstract and their consideration on this appeal. [Betzler and Clark v. James, 227 Mo. 375, 387.]

It is elementary that the right of appeal is purely statutory and the course prescribed by the statute must be pursued to entitle an appellant to a review of any question. An abstract of record cannot be brought here by piecemeal, especially when the portion sought to be supplied attempts to supplement a bill of exceptions and incorporates therein an alleged error, purely an afterthought and not an exception saved during the trial. [Tie & Timber Co. v. Naylor Dr. Dist. Co., 226 Mo. 420; State ex rel. v. Broaddus, 216 Mo. 336; Owens v. Mathews, 226 Mo. 77.] We cannot, therefore, consider this contention. First, because it is no part of the appeal (Sec. 2081, R. S. 1909; Burdoin v. Trenton, 116 Mo. l. c. 374; Gilchrist v. Bryant, 213 Mo. 442; Hubbard v. Slavens, 218 Mo. l. c. 616); and, second, because it is at a variance with all other facts which clearly show Judge Park’s judicial presence in the conduct of this trial.

The further contention is made that under section 29 of article 6 of the State Constitution the authority of Judge Powell to call in another judge was limited by said section, which only provides for the calling in of a judge from cmother circuit. This contention might offer a fertile field for a discussion as to the extent to which a constitutional provision may limit the law-making’ power. The framers of the Constitution, however, in the closing portion of this section removed any doubt as to this question in providing that “in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.” [Sec. 29, Art. 6, Constitution.] This clause, afforded authority for the enactment of the statute of 1907 (Laws 1907, p. 203) now section 3077, Revised Statutes 1909, especially applicable to the case under review. The ruling of this court in Bank v. Graham, 147 Mo. l. c. 257, does not militate against the conclusion here reached; in that case the provisions of the Constitution were only considered which related to the calling in of a judge of another circuit.

In the argument it was rather timorously contended that the record entry of the order requesting Judge Park to try this case was insufficient'in not stating the reason therefor. This contention misconceives the meaning of the order; it clearly states the reason to be “the absence and inability of Judge Powell to attend and try the case. ’ ’ This is sufficient. In State v. Newsum, 129 Mo. l. c. 159, we held that it was not necessary for the record to disclose the reason for requesting another judge to attend and try a case, because the authority thus exercised was in obedience to an express statute and a reason therefor was consequently unnecessary. The Newsum case was affirmed in State v. Gillham, 174 Mo. l. c. 673, which held in addition that the power thus conferred was vested in the judge in whose court the case was pending and not in the court itself and that he was authorized to make the. request in chambers or even in vacation.

In the city of St. Louis, which constitutes the Eighth Judicial Circuit, the practice has long prevailed, in the absence of any statute, for any circuit judge if sick, absent or otherwise temporarily nnable to hold court, to request another judge of the court, of which there are now fourteen subdivisions, to hold court for him. The validity of this practice was considered and upheld in an opinion rendered by Valuant, C. J., in State ex rel. v. Allen, 235 Mo. 298, in which it was held that the judge of the court who answers such request does not intrude into the judicial premises of the judge who invites him or encroach on his jurisdiction, for the judicial authority he exercises arises from his election and qualification as a judge of the same circuit; and the fact that he has been assigned to a division does not make him any the less a judge of the circuit court of the particular circuit; it only apportions to him his share of the work and gives him éxclusive jurisdiction thereof. 'The ruling in the Allen case, supra, is not cited as a precedent here because of the existence of the statute (Sec. 3977, supra), especially applicable to the class of judicial circuits to which Jackson county belongs; if not controlling, the lucid reasoning of this case may serve to dissipate the many technical objections urged by the defendants to the calling in of Judge Park in the case at bar.

III. Plaintiff’s Title. — Defendants’ second contention is that there is no evidence in the record to show that plaintiff had any right, title, interest or estate to the land in question. This contention is based upon the ground that there was no evidence in the record to show that plaintiff had acquired the title to this land of Stephen C. Ragan. Not only the bill of exceptions but the abstract made therefrom, discloses in different ways other than by direct proof that the plaintiff held a deed of trust from said Ragan on this land to secure the payment of certain notes made by Ragan to her, and that this deed of trust was foreclosed by the trustee and the plaintiff became the purchaser of the land and a deed was made and delivered to her of the same. Defendants, however, contend, in the absence of a showing in the bill of exceptions of these facts, that there is lacking evidence of title in the plaintiff, which will preclude her recovery. The bill of exceptions, it should be borne in mind, was prepared by the defendants. While it was not a prerequisite to its validity that the bill- should have been submitted to plaintiff’s counsel before being signed by the judge, this is usually done and is a custom to be commended, but it is evident that it was not done in this instance; as a consequence, it was not until after the bill had been-filed and defendants’ abstract made therefrom had been served on the counsel for plaintiff that the latter had any knowledge of the omission therefrom of plaintiff’s proof of title. When this discovery was made, plaintiff, through her attorney, after notice to defendants, filed a motion in the trial court to amend the 'bill of exceptions so as to include therein the showing that during the trial not only the deed of trust to this land theretofore made by Stephen C. Ragan to Witten, the trustee, had been introduced in evidence, but that there was also evidence introduced of the foreclosure of said deed, the purchase of the land by the plaintiff and the transfer of same to her by the trustee. The motion was granted and the bill of exceptions amended so as to show that proof had been made of these facts. Authorized by the court’s order, the omitted facts were included in plaintiff’s additional abstract as a part of the proceedings at the trial. The sustaining of the motion which authorized the amendment of this bill was not against the right or justice of the matter, did not alter the issues between the parties and was sustained by ample proof that the facts and questions had been introduced in evidence at the trial, but had been omitted from defendants’ bill of exceptions and abstract. The overruling of the foregoing contention will dispose of defendants’ complaint that there was no evidence to sustain the judgment. With this showing as to plaintiff’s title, we overrule defendants’ contention in regard thereto..

IV. Statute of Limitations: Pleading. — It is next' contended that the notes described in the deed of trust to Witten, and the deed of trust itself, are barred by the Statute of Limitations; that defendants have so pleaded in their answer and that it was incumbent upon plaintiff in addition to the specific denials contained in her reply, to plead the payments made on such notes,. ’ as well as the waiver of the statute by S. C. Ragan, to entitle her to make proof of these facts as a bar to the statute.

There were four notes shown to have been made by S. C. Ragan to the plaintiff, one for $1000, dated November 11, 1887, and due twelve months after date. On this note were these indorsements: “Interest paid on the within note to January 1,1892. Received on the within note $4, November 22, 1902. Received on the within note $1, March 8, 1906.” After the sale made by Witten, the trustee, appears the following endorsement: “Paid on the within note $2404.95, in full of proceeds of trustee’s sale August 14, 1909. Thomas A. Witten, Trustee.”

The second note was for $1200 dated December 30, 1887, due twelve months after date. Thereon appeared the following indorsements: “Interest paid on the within note to January 1,1892. November 22,1902, received on the within note $4. March 8,1906', received on the within note $1” and the following in the handwriting of Witten, the trustee: ‘ ‘ Credit on within note August 14, 1909, $36.55, proceeds of trustee’s sale. Thomas A. Witten.”

The third note was for $2500|, dated March 10, 1888, due two years after date; and the fourth note was for $2500, dated May 15,1888, due twelve months after date. On each of these notes there appeared the following indorsements: “Interest on the within note-. paid to January 1, 1892. Eeceived on the within note November 22, 1902, $4. Eeceived on the within note March 8, 1906, $1.”

On their faces these notes were barred by the Statute of Limitations. This defense is available only in a case of this character by an affirmative answer setting up the statute, for if no issue be taken upon a special matter, the plaintiff will not know that he is required to produce proof nor will the defendant be informed as to whether or not the plaintiff intends to produce proof of any special matter of exception. [Coleson v. Blanton, 3 Hayw. (Tenn.) 152.] To remove the burden thus east upon the defendants 'by this plea (Wojtylak v. Coal Co., 188 Mo. l. c. 294; Berryman v. Becker, 173 Mo. App. 346; Schell v. Weaver, 225 Ill. 159) it became incumbent upon them to prove that the cause of action did not accrue within the time prescribed by the statute. This proof consisted in the introduction in evidence of the notes. Plaintiff in rebuttal introduced testimony showing the indorsements of payments on the notes before they were barred, in the handwriting of S. C. Eagan, the debtor, and oral testimony that these payments were intended to apply and were applied as credits on the notes. [Smith v. Brinkley, 151 Mo. App. 494.] In addition, it was shown that S. C. Eagan, on November 12, 1902, made and delivered to plaintiff this writing: “I do hereby waive the Statute of Limitations of mortgage on Lot 1, Blue Eiver Park. S. C. Eagan.” The description of the property in this writing was that of the land in controversy.

The proof of the credits of payments is ample in itself to take the debt out of the statute (Beck v. Haas, 111 Mo. 264; Chidsey v. Powell, 91 Mo. 622; Clinton County to use v. Smith, 238 Mo. l. c. 127) and hence sufficient to continue the lien of the deed of trust against the land (Johnson v. Johnson, 81 Mo. l. c. 335; Berryman v. Becker, 173 Mo. App. l. c. 356) for the reason that the deed of trust was but an incident to the notes and in contemplation of law and by statute (Sec. 1892, R. S. 1900; Hower v. Erwin, 221 Mo. 93; Higgins v. Harvester Co., 181. Mo. 310) it ran with them and ceased to have any potential force when they were paid.

Notwithstanding the seeming probative force of the testimony introduced to prove that the running of the statute was interrupted by the payments shown, defendants confront us with this proposition, viz., was this testimony admissible under the pleadings'? It will be recalled that the petition was in the form usually employed in eases of this character. The answers, among other things, after setting forth in detail the making of the notes by S. C. Ragan to the plaintiff, alleged “that no cause of action accrued to the plaintiff within ten years next prior to the alleged sale and conveyance by the trustee, Witten, in consequence of which each and every one of said notes were at said date and are barred by the Statute of Limitations, and that said alleged trustee’s deed was and is null and void.” Plaintiff’s replies were specific denials of each paragraph of the answers. While it is elementary, it may not be inappropriate in this connection to say that such replies as were here made have no greater legal effect than general denials. There is a conflict of authority as to the necessity of a special, as distinguished from a general, reply to a plea of the Statute of Limitations, it being held in several jurisdictions that if the plea of limitations is interposed in an action at law, the plaintiff must by reply controvert the facts on ' which it is based" or allege facts bringing himself within an exception to the statute.

Under our simple system of code pleading, however, a special reply is not necessary to an answer setting up the Statute of Limitations, it being sufficient where an affirmative defense of this character is interposed to meet same with a general denial which puts the question squarely at issue. It is not' necessary' to 'question the ruling of this court seemingly to the contrary in Keeton v. Keeton, 20 Mo. 530, which was incidentally referred to with approval in Moore v. Granby M. & S. Co., 80 Mo. l. c. 91, and Zoll v. Carnahan, 83 Mo. 35, because the rule announced in the Keeton case Vas under the provisions of the Civil Code adopted in 1849 (Laws 1849, pp. 73-109) which was so amplified in 1875 (Laws 1875, p. 106) as to authorize the plaintiff, when the answer contains new matter to reply to same within such time as the court may'by rule require, denying generally or specifically the allegations controverted by him. Defendants’ contention, therefore, in regard to the inadmissibility of evidence to toll the bar of the' statute under a general reply is overruled.

V. Claim of Title of Certain Defendants: — In disposing of the claim of title of defendants Greenberry Ragan and William C. Forsee to the land in controversy, we will not further lengthen this opinion by a statement in detail of the mesne conveyances offered in evidence commencing-with that of Jerome'Anderson arid-ending with the transfer to Stephen-C. Ragan, the common source of title, nor the latter’s acceptance of this land following a judgment in partition of the quarter section of which the land-formed-a part, because of said Ragan’s adverse, open and notorious possession of the land' in person and by tenant for sixteen consecutive years.

1 ■ VI. Instructions. — Defendants assign as error the refusal by the trial, court to give the declarations of law asked by defendants and the giving by it of .those asked by plaintiff and the giving of others by the court on its own- motion. It is scarcely necessary to say in this connection what is known to every lawyer, that the object of an assignment of errors is to enable opposing counsel and the appellate court to see upon what points defendants ash a reversal and to limit the discussion thereto. This assignment does not meet this requirement. Its general nature does no more than to call the appellate court’s attention in a general and indefinite manner to the declarations of law given and refused, leaving the court to analyze by comparison and contrast all of the declarations and ascertain therefrom in what particular defendants claim error has been .committed. This is no such an assignment of error as is contemplated by our procedure. The defendants should have pointed out the errors committed in the' giving and refusing of the declarations.

■ There having been no prejudicial error committee! in the trial of this case, the judgment of the trial court is affirmed, and it is so ordered.

AH concur.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    In re BIG LAKE DRAINAGE DISTRICT; W. T. MARSHALL et al., Appellants, v. B. G. ROLWING.
    In Banc,
    June 29, 1915.
    1. DRAINAGE DISTRICT: Incorporation: Jurisdiction: Raised! by Objections to Commissioner's Report. Errors in proceedings subsequent to the incorporation of a drainage district cannot relate back and destroy tbe corporation itself; and the report 1 “ of the commissioners, the adoption of a plan of reclamation and that plan itself are things which come into existence after the incorporation has been effected, and irregularities in them may avoid them and assessments based upon them, but cannot destroy a corporation lawfully brought into existence.
    2. -: -: -: -: Use of Erroneous Name. The use, 'in papers filed and in reports made after the decree , incorporating the drainage district has been entered, of names slightly different from the true name of the district, furnisheB no basis for annulling its incorporation.

      3. -r -1 -: Retaining Land of Owner Not Served. The' fact that the court inadvertently retained in the decree incorporating the drainage district lands of an owner who had not been served with summons, after the articles of association had been so amended as to exclude them, does not affect the validity of the incorporation. Not being served with process, the lands of such owner are not affected thereby.
    4. -: -: -: Separate Petition and Articles. A decree incorporating a drainage district is not a nullity because there was not filed a petition separate and distinct from the articles of association. Under the statute of 1911 (Laws 1911, p. 206), a prayer closing the articles of association may be treated by the court as a petition; and as amended in 1913 (Laws 1913, pp. 233-234), the statute specifically denominates the articles and the prayer for incorporation as “said articles of association and petition.” No separate petition is required, but a prayer is required.
    5. --:--: -: Aided by Appeal by Others. The separate appeal by others at some other stage of the proceeding incorporating a drainage district, does not place respondent in any better position on an appeal by other landowners from a decree annulling the incorporation of the drainage district, in response to his exceptions to the commissioners’ report or to his plea to the court’s jurisdiction.' His right to his judgment must be determined upon the record in his ease.
    6. -: -: -: Incorporated by Different Name: Waiver: Amendment Núnc Pro Tunc. The fact that the court incorporated the district under the name of the “Big Lake Drainage District,” instead of under the name of the “Big Lake Drainage District of Missouri” as proposed in the articles, is of no consequence after incorporation; for if the landowners desired to object to the difference in name, they should have objected when the decree was entered, and not having done so, it was waived. Besides, if it was the legal duty of the court to use the name inserted in the articles, the variance is open for correction by a nunc pro tunc order.
    7. --: -: -: Articles of Association:' Majority of Acreage. 'Where the articles of association-for the drainage district did not specifically state the petitioners were the .owners of.the majority of the acreage in the proposed district, but did set forth the names of all owners of lands proposed to be • affected, and described the land owned by each, and the persons signing the articles as petitioners appeared in the list as "owning, in the aggregate, the majority of the acreage, the incor- ' poratiori is not to be held invalid upon á view of these facts, if the articles were amended and as amended contained an express allegation that the petitioners owned a majority of the acreage, and the decree was based upon the articles as amended.
    8. '-: County of Incorporation: Majority of Land in Another: Jurisdiction. The articles of association for the incorporation of a drainage district should be filed with the clerk of the circuit court of the county in which there are situated 'more-of the lands in the district as shown by said articles than are situated in any other county; and if after being filed, they are so amended by excluding some lands that the majority of the number of acres left in the proposed district lie in another-county, the court in which the articles were filed does not lose-jurisdiction to incorporate the district in accordance with the amended articles, nor can its incorporation be subsequently annulled on that ground. The proper county is to be determined from the face of the articles of association as first filed; and . the .jurisdiction of the circuit court of that county is not ousted by the amendment excluding lands in that county until of those remaining in the proposed district a majority of acres lies in another county.
    Appeal from Scott Circuit Court. — Hon. R. G. Ranney, Judge.
    Reversed and remanded.

      Boone & Lee and J. L. Fort for appellants.
    - (1) The appeal of R. P. Whitesell and Clara Whitesell from the decree incorporating Big Lake Drainage District to this court, in which said appeal is how pending, does not operate as a supersedeas of any proceedings which said district might have’ or take if said appeal was not pending in this- court. Laws 1913, p. 253, sec. 36; Simpson v. County, 173 Mo. 475. (2) “A corporation may have more than one name; it may have one in which to contract, grant, etc., and another in which to sue and be sued; so it may be known by different names, and may sue and be sued in either; and the name of the president, his official name or names of some kind, in which all the affairs of the company may be conducted. So much and no more, is essential to give simplicity and effect to the operation. ’ ’ Thomas v. Dakin, 22 Wend,. (N. T.) 9; 1 Clark and Marshall’s' Corporations, sees. 1150-51; 10 Cyc. 150; Newport v.’ Starbird, 10 N. H. 123; Skillman v. Clardy, 256 Mo. 311. There is no ambiguity or lack of clearness in. the name given to the district by the decree. Missouri v.Holschlag, 144 Mo. ,253. The difference between the names given to this district are not essential — they are about the difference between a hair ’twist north and. northwest side. Skillman v. Clardy, 256 Mo. 321; 13 Cyc. 624; 1 Clark and Marshall, Corp., sec. 52; King v.. Pink, 51 Mo. 212; Adler v. Company, 92 Mo. 249. (3) The circuit court of Scott county had full and complete power and jurisdiction over the subject-matter of the proceedings and over the persons of the landowners. Laws 1911, p. 206-7, secs. 5496-99; Paul v. Fulton, 25 Mo. 156; Henks v. Deb, 1 Mo. App. 402; Barnes v. Railroad, 119 Mo. App. 303. The jurisdiction of the court must be determined by the amount claimed regardless of the amount which may be found to be due by the court or jury. 11 Cyc. 775; Funk v. Funk, 35 Mo. App. 246; Payne v. Weems, 36 Mo. App. 54. (4) The articles of association take the place of a petition in an ordinary civil action while objections to the incorporation take the place of answers, and either may be amended as any other pleading and the law should be liberally construed. Laws 1911, p. 207, sec. 5499; State v. Bates, 235 Mo. 262. (5) All jurisdictional facts need not appear in the articles of association but may be shown by the evidence. The legality of the organization of the district cannot be inquired into in this proceeding unless the proceedings are void on their face. Smith v. District, 299 111. 155; State v. Weithaupt, 254 Mo. 326. (6) The report of the commissioners bound nobody, as the commissioners were the agents of the court and the court might adopt their report, modify it or reject it altogether. There is nothing jurisdictional in the report of the commissioners. R. S. 1909, sec. 5516; Laws 1911, p. 212, secs. 5518-5518a;-' Tarkio v. Richardson, 237 Mo. 68.

      J. M. Ha/w, James A. Finch and Oliver & Oliver for respondent.
    (1) The circuit court of Scott county was without' authority, power and jurisdiction to incorporate the Big Lake ,Drainage District, after the articles of as-' so elation had been amended by striking therefrom; more than nine hundred acres of land situated in Scott county. The amended articles of association disclose the fact that there was a greater acreage of land in Mississippi county than was then in Scott county. This is a jurisdictional fact that must appear on the face’ of the petition or articles of association. Laws 1911, p. 206, sec. 5496;-Johnson v. Dietrich, 152 Mo. 243;' Owens v. Pierce, 5 Mo. App. 575; Kartzendorfer v. St. Louis, 52 Mo. 204; Bobb v. Bobb, 89 Mo. 418; Elliot v. Secor, 60 Mo. 163; Ross v. Land Co., 162 Mo. 329;' Underwood v. Bishop, 67 Mo. 374; Locke v. Bowman,-168 Mo. App. 131; Shantz v. Scriner, 167 Mo. App. 643. (2) The attempted incorporation of the land described in the articles of association under the name of “Big Lake Drainage District” is not in accord with-the name set out in the articles themselves, nor is it in accord with the prayer of the petition or articles of association, praying for the incorporation. Laws 1911, p. 206. (3) The original articles of association did not say that the petitioners were “the owners of a majority of the acreage” of the land sought to he incorporated. The recital is: “We, the undersigned, a majority in interest of the owners of a contiguous body of swamp and overflowed land. ’ This recital did not confer any jurisdiction or warrant the filing of the articles at all. Evidently the petitioners came to realize this fact and attempted to amend, but this record nowhere shows that they were ever given authority or permission by the court to amend their articles in this behalf. Johnston v. Dietrich, 152 Mo. 243. (4) The court was without jurisdiction to incorporate said drainage district, because of the appeal of R. P. and Clara Whitsell to this court. 23 Cyc. 682; Cohn v. Lehwan, 93 Mo. 586; Leav-' enworth v. Atchison, 137 Mo. 218.
   BLAIR, J.

This is an appeal from a judgment of the circuit court of Scott county declaring null and tfoid a decree of the same court incorporating the Big-Lake Drainage District under article one of chapter forty-one of the Revised Statutes of Missouri of 1909 as amended in 1911 (Laws 1911, p. 205).

The record shows that the articles of association-for the proposed district were filed in the circuit court of Scott county, March 7, 1912, and that after a showing of service of process upon those landowners (with one exception) upon whom such service was required by the statute, and after a guardian ad litem had been appointed for minors concerned, the matter of incorporation was, upon April 15, 1912, submitted upon the-articles of association and certain motions, objections- and exceptions and taken under advisement; that on June 24, 1912, the submission was set aside and leave was granted to strike out the name and lands (eighty acres) of Emily Brown, who had not been served with process; that thereafter and on the same day the court entered its decree incorporating the district under the name of the Big Lake Drainage District, first having found that the articles and service of process complied with the statutory requirements. The court found, specifically, that of the 19,300 acres proposed by the articles of association to be included in the district, the major portion thereof was in Scott county. The decree sets forth the boundaries of the district formed. These boundaries as defined by the decree did not include either the eighty acres of Emily Brown or about-four hundred other acres in Scott county which-were shown to have been stricken from the articles.of asso-i ciation by the court itself after the evidence was all-, in and before the decree of incorporation, was entered;; The elimination of the four hundred acres in Scotti county reduced the number of acres in that county-.to. such an extent that of the land which remained.the major portion was situated in Mississippi county. The decree recited, among other things, that the district was “formed, created, organized and incorporated in; accordance with said articles of association so signed,by -said petitioners and filed herein as a drainage district with the boundary hereinbefore set out and described as amended,” said district to include “all the.lands in said boundary described, except such as have been stricken out by amendments by permission of the court herein,” and thereafter set forth the boundaries; of the district as incorporated.

Subsequently a landowners’ meeting was held, a board of supervisors elected and a chief engineer and; assistant engineers selected. In due time the board of, supervisors reported to the court, as adopted by them,; the report of the board of engineers upon a plan for. reclamation. November 13, 1913, the court appointed, commissioners to appraise land required for rights -of way and holding basins and to assess benefits and damages. March 16, 1914, these commissioners filed their report, of which notice was given, and thereafter, on: April 11,1914, respondent Rolwing filed exceptions upon numerous grounds, including one that the. Scott, County Circuit Court lost jurisdiction when the arti-:cles of- association were so amended that the acreage, in Scott county became less than that in Mississippi, county. Most of the other exceptions related to the. report of the commissioners and the plan for reclamation. Upon-May 9,1914, respondent’s exceptions were taken up and the evidence heard and the exceptions < submitted to the court on May 16, 1914, and the cause, continued to May 18,1914. On May 18, 1914, responds ent filed a plea to the jurisdiction of the court. The first ground of this plea was that at the time the’ decree of incorporation was entered the “articles of association, as amended, show that the circuit court of Scott county was without jurisdiction to enter said pretended decree of incorporation because there were more acres of land in Mississippi county, Missouri, within the boundaries of said district, than there were acres in Scott county within the boundaries of said district.” Other grounds of the plea attack the plan for reclamation and the commissioners’ report and the sufficiency of the notice of the filing of the latter. Another sets up that “no petition was ever filed in the circuit court of Scott county praying for the incorporation of the Big Lake' Drainage District. ’ ’ ’

Upon the same day the court entered the following judgment:

“Now, at the close of all the evidence in the cause, comes the above-named exceptor, and by leave of court, files an amended pleading, including the exceptions heretofore filed herein, and a plea to the jurisdiction of the court; and the court after hearing all the evidence and argument of counsel in this cause, and duly considering said plea to the jurisdiction of the court, and being now fully advised in the premises, doth in all things sustain said plea to the jurisdiction of the court.

“Wherefore: It is considered, ordered and adjudged by the court, that the articles of association and incorporation of Big Lake Drainage District, arid the decree of this court, incorporating the same, be, and they, and each of them, hereby are decreed to be null and void and of no effect whatever; and that the proceedings on the exceptions filed herein, be, and the same are hereby dismissed, and that exceptors have and recover ,of and from the petitioners for the organization of said district the cost in this behalf, laid out and expended, and that execution issue therefor.”

It is from this judgment that the appeal in this case was taken.

I. Does the record support the judgment entered?5 • In the first place the objections made to the report of the commissioners and to the plan for reclamation, as such, furnish no basis for a judgment annulling the articles of association and holding the5 original incorporation void and without-effect. The report of the commissioners and adoption of a plan for reclamation and that plan itself are things which come into existence after-incorporation has been effected and irregularities in5 them may avoid them and assessments based upon; them, but, obviously, cannot destroy the corporation itself, provided it was lawfully brought into existence. It may be conceded that irregularities in such report and plan could, as argued, be of such character as to amount to jurisdictional defects in so far as the col-, lection of assessments and the condemnation of rights’ of way, etc., are concerned. The cases cited from con-i demnation proceedings under other statutes announce a rule of this kind. No case is cited, however, which holds that errors in proceedings subsequent to the incorporation of a drainage district of this kind can relate back and destroy the corporation itself. It is manifest the judgment cannot be supported on any such-theory. This also disposes of the suggestion that the use, in papers filed and in reports after the incorpo-.. rating decree was entered, of names differing slightly from the true name of the district furnishes support for, the judgment appealed from. Nor does the fact that* the court inadvertently retained in the decree the-eighty acres of Emily Brown after the articles of as-, sociation had been so amended as to exclude them.’Emily Brown was not served with process and was not affected, therefore. Nor is there any substance in the: insistence that the decree of incorporation is a nullity because there was not filed a petition separate and distinct from the articles' of association. The articles closed with a prayer for incorporation, and this was treated as a petition by the court and so named in the decree. Under the statute as it then was (Laws 1911, p. 206) this was sufficient. The statute as amended in 1913 (Laws 1913, pp. 233, 234) specifically denominates the articles and the accompanying prayer for incorporation, now, as formerly, required to be included in such articles, as “said articles of association and petition.” No separate petition was required. Further, the appeal of Whitesell from the decree of incorporation in no way puts respondent in any better position in this ease. Respondent’s right to this judgment must be determined from this record.

The fact that the court incorporated the district under the name of “The Big Lake Drainage District” instead of under the name of ‘ ‘ The Big Lake Drainage District of Missouri,” as proposed in the articles filed, is of no consequence now. If the landowners desired to object to such an inconsequential difference they should have done so when the decree was entered. Otherwise, the matter was waived. If respondent’s view is correct, i. e., that it was the legal duty of the court in incorporating the district to employ the name set forth in the articles, the matter would be yet open for correction nunc pro tunc. Such view, however, we do not regard as tenable. In no event can the difference in name in this connection avoid the entire decree of incorporation.

The original articles of association did not specifically state that the petitioners were the owners of a majority of the acreage in the proposed district. The articles of association set forth the names of all owners of lands proposed to be affected, and described the land each owned. The persons signing as petitioners appeared in this list as owning, in the aggregate, the majority of- the acreage in the proposed district. This was in the original articles as first filed.. The amended articles contained the express allegation that the petitioners owned the “majority of the acreage.” The conrt in decreeing the incorporation of the district, as the decree expressly states, acted upon the articles of association as amended. The amendment referred to merely expressed in plain words what the articles as signed already disclosed to he the fact.

The point is ruled against respondent.

II. The real ground upon which respondent urges that we affirm this judgment is that the statute required the articles of association to he filed in the circuit court of the county containing 'the greatest acreage in the proposed district; and that while this was done, in the first instance, yet after all amendments eliminating various tracts were made, the acreage in Scott county had been so reduced that it was exceeded by that in Mississippi county, and, he insists, this ousted the Scott County Circuit Court of jurisdiction, and, consequently, the decree of incorporation was void.

The statute (Sec. 5496, p. 206, Laws 1911) required that when the proposed district was “composed of tracts or parcels of land situated in two or more different counties, then” the articles of association were to be filed “in the office of the clerk of the circuit court of the county in which there are situated more of the lands of said district than in any other county in said district.” This clause deals with the articles of association as drawn in the first instance, and in that connection designates the county in which • they are to be filed. Manifestly, the proper county is to be determined from the face of the articles of association as they are when first filed. It is provided in a following section (5497, as amended, Laws 1911, p. 207) that immediately after such articles are filed, service shall he had by summons or publication as is appropriate under the facts in the case of each person owning lands proposed to be affected, and the summonses are to be issued by the clerk of the circuit court having jurisdiction under the provisions of section 5496, as amended in 1911. After thus making provision for bringing in all persons not signers of the articles and who have not entered appearance, the same section (5497, Laws 1911, p. 207) expressly provides: “Said circuit court shall thereafter maintain and have original jurisdiction co-extensive with the boundaries and limits of said district without regard to county lines for all purposes of this article.”

In the following section it is explicitly provided that “the articles of association may be amended as any other pleading.”

It appears that the Legislature foresaw the very situation presented in this case. Given the full power of ameudment, as it was, the circuit court might, as it did in tins case, eliminate, by amendment, so much of the acreage of the county having the greater acreage in the original articles as to reduce its acreage below that of some other county affected. The provision in ameurled section 5497, that after all parties have been brought in the circuit court in which the articles were properly filed as first drawn, shall thereafter “maintaw, and have- original jurisdiction . . . without regard to county lines for all purposes of this article,”' covers the matter exactly and clearly precludes the possible result of cases like this being shifted back and forth, from court to court, as varying amendments might be made in the discretion of different judges. It is not necessary to discuss the question as to what conclusion would be just if the statute contained no provision like that quoted. We think that-provision governs in this case.

The judgment is reversed and the cause' remanded to be proceeded with in a manner not out of conform■ity with this opinion.

Woodson, G. J., and Graves, -Brown and Walker, JJ., concur; Bond, J., concurs in the result; Faris, J., not sitting.' •