author: LAMM, J.

text:
    WALKER v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    February 22, 1906.
    1. JURISDICTION: Federal Court. Complaints that a Federal court erred in handing over to the State court jurisdiction of a cause, when the point of diverse citizenship was presented to it, should he made in the Federal court. When the Federal court has once decided that it has no jurisdiction and remands the cause to the State court, the State court will not thereafter examine into or sit in judgment upon the wisdom or grounds of the Federal court’s determination of the question.
    2. RAILROAD: Whistling Post: Rebuttal. Where the defendant railroad put in evidence that the signal was given at the whistling post, it is proper to permit plaintiff to show in rebuttal that the whistling post was more than 80 rods from the crossing.
    3. -: -: -: Pleading. Nor is it necessary for plaintiff to plead that the whistling post was not at the proper place. That is not a constitutive element in his cause of action which lays the injuries to a traveler in crossing the track to the railroad’s failure to sound the whistle at least 80 rods from the crossing. The whistling must be done at the place designated, not by the post, but by the statute.

      4. -: -: -: Surrebuttal: Rules of Company. Evidence of what were the rules of the railroad company in reference to whistling for a. road crossing is not competent as surrebuttal, unless they tend to show that the whistling post was at the proper place. The statute requiring the signal to be given at least 80 rods from the crossing, and not the rules of the company, control.
    B. PLEADING: Amendment: Departure: Appellate Practice. By failing to produce in the appellate court the order of the trial court overruling the motion to strike out the amended petition, and answering over, appellant waives all right to complain of any departure.
    6. -: --■: -: Reply: Answering over. Defendant by answering over waives any departure in the amended petition, and his motion, thereafter filed, to strike out a part of the reply, unless the new matter set up in the reply constitutes an amendment to the original petition not permitted in a reply, should be overruled.
    7. -: -: -: Original Petition. Matter pleaded in the reply must be measured by reference to the amended peti" tion, and not by reference therein to the original or abandoned petition, for such reference, in considering the naked question of departure, is neither pertinent nor impertinent.
    8. -: -: -: Answer: Demurrer to Evidence. But the point that plaintiff’s cause of action is barred by the Statute of Limitations, as shown by his amended petition changing the name of the minor killed by the accident, may be preserved by setting up such plea in the answer, as well as by demurrer to the evidence, or by a peremptory instruction asked by appellant.
    9. PLEADING: Wrong Name. The name of a party to a suit or of a party killed by an accident, is but a means of identifying such party.
    10. LIMITATIONS: Negligence: Damages for Killing Minor Child: Suit by Wrong Name: Amending Petition. In the original petition plaintiff, a father, sued for. damages for the negligent killing of his 'child by defendant railroad at a road crossing, and therein stated the child’s name to be Elbert Walker. More than one year thereafter he filed an amended petition in which the child’s name was stated to be Charles L. Walker, which was the true name of the child killed. Defendant in its answer pleaded that the cause of action set up in the amended petition was barred by the one-year Statute of Limitations (sec. 2868, R. S. 1899.) To this plaintiff replied that by error of the scrivener the name of Elbert Walker was inserted in the original petition, while in fact the true name was Charles L. Walker. The evidence showed that plaintiff had a step-son named Elbert Peak, two years younger than Charles, and that Elbert was present at the accident, and that he was not killed. Held, that the amended petition did not set up a new cause of action, but a mere variation of an allegation affecting a demand already in issue, and hence the action was not barred by limitation.
    11. NEGLIGENCE: Concurring. If negligence on the part of those in charge of a locomotive engine rapidly approaching a road crossing, concurs with that of an adult traveler about to cross, there can be no recovery for injury or death to the traveler.
    12. -: -: Crossing: No Signal: Looking and Listening: Question of Age. The deceased, a boy fourteen years old, for several years preceding the accident, had hauled timber to coal mines near the railroad crossing. When he and his stepbrother, two years younger, had unloaded the wagon and were ready to start home, plaintiff warned them that the regular passenger train was about due. They stopped about fifty feet from the crossing, looked and listened for the train, but neither saw nor heard it, and then proceeded slowly up the slightly-inclined grade to the track, looking in the opposite direction at some boys carrying fish, but at no time thereafter looking or listening for the train, which was coming at a very rapid rate, and did not discover it until it was too late for them to get across in safety. There was evidence that the whistle was not sounded within 80 rods of the crossing and that the bell was not kept, ringing, and failure in that regard is the negligence relied upon by plaintiff. Deceased and his step-brother were not discovered by the engineer or fireman until it was too late to stop the train in time to avoid striking the wagon. Held, that, the case having been submitted to the jury on instructions asked by both sides that deceased'was sui juris, it will be considered in this court on the same theory, and a verdict and judgment for plaintiff must be reversed, on account of concurring negligence. Semble, under the facts of this case, decedent was guilty of contributory negligence as a matter of law.'
    13. Appellate Practice: Theory of Trial. Where the case was tried on the theory that the injured party was sui juris, in that the instructions asked and given for both sides invoked of the deceased the care expected of persons of ordinary prudence, it will be disposed of on appeal on the same theory.
    Appeal from Randolph. Circuit Court. — How John A. Hockaday, Judge.
    Reversed,

      Geo. S. Grover for appellant.
    (1) The substituted cause of action was barred by the statute on May 5, 1903, at the time the amended petition was filed. Courtney v. Sheehy, 38 Mo. App. 290; Clemens v. Greenwell, 40 Mo. App. 589; Poor v. "Watson, 92 Mo. App. 101; Case v. Cordell, 78 S. W. 62; Bricken v. Cross, 163 Mo. 449; Sec. 2868, R. S. 1899. (2) At the time of this accident Charles L. Walker was sui juris. Payne v. Railroad, 136 Mo. 562. (3) Upon the undisputed facts plaintiff was not entitled to recover upon his own testimony. Henze v. Railroad, 71 Mo. 636; Moberly v. Railroad, 98 Mo. 183; Hayden v. Railroad, 124 Mo. 566; Kelsay v. Railroad, 129 Mo. 362; Payne v. Railroad, 136 Mo. 162'; Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railroad, 161 Mo. 497; Hook v. Railroad, 162 Mo. 569; Van Bach v. Railroad, 171 Mo. 338; Guyer v. Railroad, 174 Mo. 344. (4) The trial court admitted incompetent testimony over defendant’s objection. Sec. 1102, R. S. 1899 ; Chitty v. Railroad, 148 Mo. 75. (5) The instructions given by the trial court at plaintiff’s request were so erroneous and prejudicial as to necessitate a reversal of this judgment. Henze v. Railroad, 71 Mo. 636 ; Hook v. Railroad, 162 Mo. 569.

      Willard P. Cave and Aubrey B. Hammett for respondent.
    (1) There was no substitution of a new cause of action'in this case. Plaintiff had but one son and his name was Charles L. Walker, and he lost his life as stated in plaintiff’s petition; and the clerical error in the given name in the original petition was properly corrected in the amended petition. Sec. 657, R. S. 1899; Lilly v. Tobbein, 103 Mo. 477; Parry v. Wood-son, 33 Mo. 347; Harkness, Adm., v. Julian, 53 Mo. 238. (2) The measure of care to be expected of a boy fourteen years old is that of an ordinarily prudent boy of that age and not that of an ordinarily prudent man of mature years. Campbell v. Railroad, 175 Mo. 163;Beach, on Contributory Negligence (3 Ed.), sec. 216; Plumley v. Birge, 124 Mass. 57; 7 Am. and Eng. Ency. Law (2 Ed.), 405; Holmes v. Railroad, 88 S. W. 623; Eswin v. Railroad, 96 Mo. 290; Duffy v. Railroad, 19 Mo. App. 380. (3) Appellant has failed to bring up all the evidence in this case; hence, his demurrer to the evidence should not be considered. ‘Williams v. Stroub, 168 Mo. 346; Nash v. Press Brick Co., 109 Mo. App. 601; Goodson v. Railroad, 23 Mo. App. 76; Meriwether v. Howe, 48 Mo. App. 152; Davis v. Vories, 141 Mo. 234; Reid v. Peck, 163 Mo. 333. (4) The trial court very properly overruled defendant’s demurrer to the evidence for the reason that plaintiff’s evidence did not show that deceased was guilty of contributory negligence, and hence that question was properly submitted to the jury. Stone v. Hunt, 94 Mo. 475; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Warren v. St. Louis Merchants Exchange, 52 Mo. App. 157; Weller v. Railroad, 164 Mo. 199; Evans v. Railroad, 178 Mo. 508; Heinzle v. Railroad, 182 Mo. 528; Allen v. Railroad, 183 Mo. 411; Erickson v. Railroad, 171 Mo. 647; Van Bach v. Railroad, 170 Mo. 338. (5) The testimony in rebuttal as to the location of the whistling post was clearly competent, as the engineer testified that he sounded the whistle at the post; with the whistling post 2,050 feet away from the crossing, instead of 1,320', the customary distance, the engineer’s own statement showed that he had not complied with the requirements of the law. (6) The instructions given by the trial court on plaintiff’s part declare the law correctly. Weller v. Railroad, 164 Mo. 180.
   LAMM, J.

— Walker, as surviving parent of a minor son, Charles L. Walker, the issue of a first marriage, seeks to recover of respondent on an amended petition $5,000, damages for negligently killing his said child at a public road crossing on May 1, 1901, in Randolph county.

A resume of the abandoned petition as well as the trial pleadings will aid in getting at some of the questions presented here.

Sometime in 1902, plaintiff sued for the death of a son named Elbert Walker. Steps were taken by defendant to remove this cause to the United States circuit court. When lodged there, it was by that court (for reasons not shown to this court) remanded to the State court. After being so remanded and on May 5, 1903, two years and four days after the cause of action accrued, plaintiff filed an amended petition in which he sued for the death of a son named Charles L. Walker. The first petition contained a general averment of negligence, with the additional allegation that the death of Elbert Walker was caused by the negligent omission of the statutory crossing signals. The second petition omitted the general charge of negligence, but counted on the negligent omission of the crossing signals and made the additional charge that defendant’s servants* running the locomotive and train, saw the peril of said Charles L. Walker at the crossing, or could have seen his peril by using ordinary care and could have prevented the death of the boy by using ordinary care after such discovery.

Defendant assailed this petition by a motion to strike out, framed on the theory that there was a departure from the original cause of action and not an amendment, and on the theory that the alleged new cause of action was barred by the one-year Statute of Limitations, Revised Statutes 1899, section 2868. What disposition was made of this motion the record does not show, but we assume it was overruled, though neither that fact is shown, nor is exception noted.

Be that one way or the other, on the next day defendant answered by a. general denial, and by pleading the original petition counting on the death of “Elbert Walker,” followed by the averment that plaintiff never had a son named Elbert Walker and another showing that the amended petition was filed on the 5th of May, 1903, and that the cause of action therein stated was barred by the express terms of section 2868, Revised Statutes 1899, and is a departure from the original petition. The answer further set up the contributory negligence of Charles L. Walker, in that he drove upon defendant’s track at the public crossing without looking or listening, when by looking he could have seen and by listening he could have heard the approach of defendant’s train in time to have remained away from the track in a place of safety. Averring, furthermore, that plaintiff by negligently permitting his son to drive upon the track in that way had caused his death. Pleading, also, that it is a citizen of Ohio, while plaintiff is a citizen of Missouri and that the action of the Federal court in refusing to hold jurisdiction of the cause had denied the defendant the privilege, right and immunity claimed by it under the Constitution and laws of the United States, and violated the 14th amendment 'to the Constitution of the United States, and violated section 30 of article 2 of the Constitution of the State of Missouri.

By reply, plaintiff denied all the allegations of new matter contained in the answer, and, by way of further reply, averred that “by ah error of the scrivener” the name of Elbert Walker, as the name of the minor son killed, was inserted in the original petition, while in truth and in fact the true name was Charles L. Walker, and that Elbert Walker and Charles L. Walker are, and were intended to be, one and the same person and that person’s name was Charles L. Walker.

Thereupon defendant assailed the new matter pleaded in the reply by a motion to strike out, (1) because it was a departure from the cause of action in the original petition, (2) because the new matter constituted an amendment to the original petition not permitted in a reply, and (3) because tbe new matter is barred by section 2868, supra. This motion was overruled and defendant duly saved its exceptions.

On tbe heels of tbe above ruling, a trial was had to a jury and thereat tbe following facts were uncovered:

Walker’s present wife was a widow Peak who, with herself, brought as a further contribution to Walker’s family a minor son named Elbert Peak. It is asserted in appellant’s brief that this lad was known as Elbert Walker, but we find no evidence to sustain such contention and it may be dismissed as a mere plausible conjecture. Tbe Walker family lived in tbe neighborhood of a coal mine adjacent to tbe main track of defendant’s railroad in Randolph county, at a point between Huntsville and Moberly, which track, barring a slight curve, at tbe place in band runs in tbe general direction of east and west. Tbe two boys, Charles and Elbert, with their father plied tbe avocation of hauling timber to said mine. Tbe team used, being old and thin, was correspondingly gentle, slow and safe. Tbe wagon used was without a bed, was equipped with a frame for timbering purposes and with a platform for carrying tools, and, when unloaded, those riding thereon rode on its forward bolster. Tbe public wagon road runs east and west south of, parallel with and adjacent to tbe railroad and, at some distance west of said mine, turns north and thence, between wing-fences leading to cattle guards, with a slight slope up for fifty feet after tbe turn, approaches and crosses tbe track. This crossing is tbe locus in quo. Tbe railroad approaches it from tbe east on a slight curve. At some distance east there is a cut and from where the railroad leaves tbe cut it runs on a slight fill up to and over the crossing. Taking into consideration tbe curve, cut, fill, tbe lay of. the land, tbe wing-fences, etc., described in tbe record, it seems to be substantially established that, for several hundred feet up tbe track, one situated as these boys would be, when at the corner made by said wagon road’s turning on the right of way, could see a locomotive and train of cars approaching from the east. Such locomotive and train would be visible for a greater distance, gradually increasing, after the occupants of such wagon would leave said corner and approach the track proper, say, to a thousand'feet or more. The curve being to the south, the situation was such that an engineer on a west-bound train, sitting on the north or right hand side of the locomotive cab, would have his vision intercepted by the boiler, smokestack and other locomotive appurtenances, so that he could see anyone on the dirt road, who was immediately approaching this crossing from the south, for only a short distance of track, say three or four hundred feet, before the locomotive reached the crossing.

In this condition of things, and on the first day of May, 1901, appellant’s west-bound passenger train, on usual schedule time (as we understand the record) approached this crossing in broad daylight, running about a mile a minute. At that same time Charles L. Walker and Elbert Peak were wending their way to this crossing. They had driven said team and empty wagon from said mine west along said public road to said corner and there stopped, as will presently appear. The boys were riding on the front bolster with their feet dangling close to the double-tree — Charles L. Walker driving. They with their father had delivered a load of timber props at the mine and their father had lingered behind to get a receipt for the delivery. He had warned the boys to this effect: “It’s pretty near train time, boys. Notice for the train and he careful and stop at the crossing.” Elbert was 12 years old. Charles was fourteen years of age, and, in the words of the record, “was in the habit of driving the team, was a quick, active, bright boy and could see and hear well.” Both of the boys were allowed to drive and were used to driving the team over the crossing for a time estimated at two or three years in the business of timber hauling. The evidence is nncontradicted, also, that in addition to the warning of the father, they knew of their own accord and were conscious of the fact at the time that the train was about due.

After stopping at the comer, they went their way and at the crossing a collision occurred. The locomotive' struck the hind wheel of, and demolished, the wagon. Elbert, tossed to one side, jumped up and ran after the team, but Charles, thrown into the air, was caught on the cowcatcher as he fell and was found mangled and dead thereon when the train arrived at Huntsville, some two miles away. The fireman had been feeding his fire. When he resumed his seat the train was nearing the crossing and he saw, what the engineer could not see at that time, to-wit, the boys turning the corner, looking the other way and'evidently intending to cross the track. He warned the engineer, who at once, he says, put on the full force of the air to stop and thereupon also gave alarm signals. The engine was not reversed. The evidence shows that, at that going rate, the hard and full application of the air was the best means at hand, considering the safety of the passengers, to stop the train. At least, there was no evidence contradicting the testimony of the engineer to the’effect that he employed the best and safest means. To stop a train going as this one on that track, under the evidence presented to us in this cause, would take from one thousand to seventeen hundred feet and the evidence all points to the fact that the engine was much closer to the crossing than that when it was discovered that the boys were bent on crossing the track. There was evidence pro and con as to whether the speed of the train slackened, but, in view of the way the ease was put to the jury by plaintiff, as will presently be seen, it becomes immaterial and need not be further referred to. When the collision occurred the dust of the train somewhat obscured the vision. The fireman and engineer were satisfied they saw both boys escape and, hence, proceeded on their way to Huntsville where, as said, Charles L. Walker’s body was found prone upon the cowcatcher.

There was substantial evidence that neither the bell was rung nor the whistle blown as required by statute, and, per contra, there was strong countervailing proof on that issue of fact. All witnesses agree that alarm signals were given, but they were of no avail considering speed and distance.

It seems at this crossing there is a hamlet or collection of occupied dwellings and that a number of persons saw the accident who, together with Elbert Peak, testified for plaintiff. Several witnesses say, with indefiniteness as to the exact location, that the boys at a certain time stopped, stood up and looked in both directions. To sum up on this point, we take it, the testimony shows this stop was made at the corner where the public road turns on to the right of way, that is to say, fifty feet from the railroad. Apposite to the fact just pronounced, the boy, Elbert Peak, testified in chief as follows: “As we came down there we turned south (north?) and stopped at the comer and got up and listened for the train, but we did not see or hear it, though we looked both ways; not seeing the train or hearing it we started to cross and just as we got the horses on the track we saw the train coming ... We stopped at the corner of the crossing before we went up there; at the corner of the fence as we got on the right of way.” Again, on cross-examination, he said: “We drove up towards the railroad and we were going at a walk, walking slow; were down at corner when we stopped, looked and listened.”

We think, furthermore, the evidence shows that neither of the boys looked to the east after that stop until they were, to all intents and purposes, on the track and in imminent danger. This sufficiently appears from the following: Elbert Peak, referring to persons they saw at the time of the stop and .afterwards, testifies this way: “Did not see anybody else there; saw boys on right of way towards Huntsville” (i. e., west); ‘' didn’t know who they were; didn’t notice to see what they were doing, whether they were standing still or walking; was looking over that way where they were part of the time, after I stopped, looked and listened before going on the track; train was right on us when I first saw it, no farther than across This room; . . . We stopped at turn and looked for the train and listened and could not see or hear anything of it and we drove up; the team was a slow one and we could hardly get them to go, and he whipped them up, but by that time the train was right on us, but we did not stop to look or listen, neither of us; we stopped after we passed Mr. Riley, and drove up there without looking any more. ’ ’

It appears further from plaintiff’s witnesses that two boys, Kaufmann and Fioli, had been fishing and were west of the crossing, say 100 yards or so, coming east on the railroad track or right of way. As there is no evidence showing any other persons except these two boys west of the crossing, we infer they are the boys referred to by Elbert Peak as being on the right of way towards Huntsville. Kaufmann says (testifying for plaintiff): “When I first saw the boys” (i. e. Elbert Peak and Charles L. Walker) “they were on the crossing, pretty near at it; the horses were going pretty slow; when I first saw them they were looking towards us; I had some fish with me in a bucket; when the engine got close to them one of the boys looked around and saw it and jumped back and started to run for the hind end of the wagon, and the train hit them; he did not look around until the engine was at him; from the time I first saw them until the hoy jumped up they were looking down in the direction of me.”

Fioli was also produced by plaintiff and corroborated Kaufmann and further testified as follows: “When we first noticed the boys they were in the wagon going towards the railroad; the horses’ heads were about on the south rail — to the south rail, at the time I first saw them; the boys were looking at us; when they-got up to the railroad they looked tire other way and saw the train coming; a.t that time they were just going upon the track; . . the horses were on the track before the boys looked around and saw the engine; they were across the track; the wagon was in the middle of the track when they looked around; when we first saw them they were on the railroad; they were looking towards us first, and when they got on the railroad, when about the middle of the wagon got there, they looked and saw the engine coming; . . . the horses were over the track when they looked; the horses’ heads were about to the track when I first noticed them; at that time the boys were looking at us. ’ ’

Plaintiff offered himself as a witness and testified to the following things, inter alia: “The name of the boy killed was Charles L. Walker and not Elbert Walker.” On the question as to how the name Elbert Walker got into the original petition, the only explanatory testimony adduced came from him and is as follows: “I could not tell you just how that name got in there, but it is wrong; just one boy was killed; I never had a boy named Elbert Walker.”

The engineer having testified for defendant that he gave the usual statutory crossing signals at the whistling-post east of the crossing, the plaintiff was allowed in rebuttal to show that the whistling-post in question was not eighty rods from the crossing, but, to the contrary, was nearly half a mile therefrom. To the offer of this testimony the defendant lodged the following objections: (1) As not being in rebuttal; (2) because there is nothing in the pleadings to indicate that it is a ground on which to base their charge of negligence in the petition that the defendant’s train failed to whistle at the proper distance from the crossing; (3) that no charge is made in the petition filed in this case about the -whistling-post not being at the proper distance from the crossing; and (4) because the statutes of the State of Missouri do not require the whistling-post to be located at any special point and for that reason this testimony is incompetent, immaterial and irrelevant. These objections were overruled and exceptions saved.

Objections were made by defendant to other testimony, but they are without noticeable merit, in our opinion, hence such testimony and objections will be passed by.

In surrebuttal defendant offered to show what the rule of defendant company was in regard to whistling for a road crossing. This evidence was objected to by plaintiff “as not being matter in rebuttal and also as calling for a matter fixed by the statutes, ’ ’ and was by the court excluded on the theory that the case would not be reopened without the consent of the other party, who would not consent.

At the close of plaintiff’s case, defendant interposed a demufrer to the evidence, which demurrer was disallowed and exceptions saved.

At the close of the whole case, the defendant asked a peremptory instruction to the effect that the plaintiff was not entitled to recover under the pleadings and the evidence. This instruction was refused and exceptions saved.

Six instructions were given for plaintiff. Four of them were instructions severally defining “preponderance of evidence, ’ ’ directing the amount of the verdict, if a finding was made for plaintiff, and directing the forms to be employed. They seem in good form and need not.be noticed. Instructions 1 and 2 are set forth, partly to show the theory of plaintiff below, and are as follows:

“1. If the jury believe from the evidence in this cause that on the first day of May, 1901, the defendant’s train approached the point mentioned in evidence, and that at such point a traveled public road crossed the defendant’s railroad; and that the bell of the locomotive engine which hauled said train was not rung at a distánce of at least eighty rods from said crossing and kept ringing until said engine crossed said public road; and that the steam whistle attached to said engine was not sounded at least eighty rods from said crossing and was not sounded at intervals until it had crossed said public road; and that plaintiff’s minor unmarried son, Charles L. Walker, was approaching said crossing on said traveled public road, driving a road wagon, and that by reason of said failure of defendant’s servants upon said train to sound said whistle or ring said bell as aforesaid, the said engine struck said wagon while said engine was crossing said public road, and killed plaintiff’s said unmarried minor son, Charles L. Walker, and at the time of said injury the plaintiff’s said son, Charles L. Walker, was exercising ordinary care in crossing said railroad, the jury will find for the plaintiff and assess the damages as [sic] five thousand dollars.
“The term ‘ordinary care’ as used in this instruction means such care as a person of ordinary prudence would exercise under like circumstances.
“2. Negligence on the part of the deceased which will prevent the plaintiff recovering in this action must be such as directly contributed to his injury, and consists of the want of ordinary care. Ordinary care means that degree of care which may be reasonably expected of ordinary prudent persons in the situation of plaintiff’s said deceased son, at and just before the lime the accident occurred, and in determining whether the deceased was using such care, you should take into consideration all the circumstances surrounding him at the time. And the burden of proving contributory negligence on the part of Charles L. Walker rests on the defendant, and unless the defendant has proved such contributory negligence by a preponderance of the evidence, you cannot find for the defendant oh that ground. ”

These instructions were objected to and, exceptions being saved, they are now challenged as erroneous.

For def&ndant three instructions were given, which, as they further show the theory the case, was tried upon, will not be amiss here, thus:

‘‘1. The court instructs the jury that it is the duty of every person approaching a railroad crossing to look and listen for approaching trains, and that this is especially the case where such person has knowledge or is warned that a train is due; and that this duty to look and listen is a continuous duty that ends only when such railroad track has been reached and passed; and in this case even if the deceased, Charles L. Walker, stopped his team at or near the corner of the fence of the crossing, and looked and listened for the approaching train of which he had knowledge and had been warned of, yet if after so stopping and so looking and so listening, said deceased, Charles L. Walker, drove his team slowly on some forty or fifty feet to the crossing, and onto the railroad track in front of the rapidly approaching train which was then dangerously near, and in full view, without at any time after so stopping near said corner, again looking for said train, and was thereby struck and killed, then said Charles L. Walker was guilty of such negligence directly and proximately contributing to his injury and death as will bar a recovery in this case; and if the jury so find the facts to be, their verdict must be for the defendant, even though the jury may find that the defendant’s servants operating said train were guilty of negligence with respect to sounding the whistle and ringing the bell on the engine.
“2. The court instructs the jury that even though they may find that the train which killed Charles L. Walker was then and there running at fifty, or even sixty miles' an hour, yet, such rate of speed is not in itself a negligent act at the time when, and place where said train was said to he running.
“3. The court instructs the jury that the burden of proof is on the plaintiff to prove by the weight of the evidence the negligent acts charged in his petition, and unless the jury believe and find that the plaintiff has so proved said alleged negligent acts, by the weight of the evidence, fairly considered, then the verdict of the jury must he for the defendant.
“If the jury find for defendant, the form of the verdict will he: . . .”

Objections were made to statements of plaintiff’s counsel in his address to the jury and exceptions saved, but the matter involved is not of sufficient consequence in our opinion to merit serious attention and will be treated as by-matter.

The jury returned a verdict in favor of plaintiff for $5,000, and defendant company duly appealed.

(1) On this record, it must he held the proof was of such character that the allegation in the amended petition predicating a recovery upon alleged negligence in failing to stop the train after the perilous condition of Charles L. Walker was discovered, or should have been discovered, was not supported by evidence. Respondent recognized and acquiesced in this situation by asking no instruction submitting that theory to the triers of fact.

(2) On the other hand, we do not understand that appellant seriously contends a constitutional question is pending before us predicated of the failure of the United States circuit court to retain the jurisdiction once graciously handed over by the State court. Complaints of errors committed by that court, if any, should be poured into the ears of the Federal court having rightful jurisdiction (and disposition) to correct them. Any other practice would breed confusion and discord. A court having superintending appellate corrective jurisdiction may well be likened to a principal and by that token the doctrine of respondeat superior has sensible application.

Then, again, we do not know whether or no appellant is a citizen of Ohio. All we see by this record is that it said so and it prayed to be sent to the Federal court. Its prayer was answered, but that court turned a deaf ear and refused to entertain jurisdiction. For aught we know the United States circuit court found as a matter of fact that appellant was not a citizen of Ohio, or that some fatal infirmity existed in its papers. Hinc — if we may be allowed so to speak — hinc illae lacrimae, perhaps.

When the case came back to the State court, .what was that court to do? Refuse jurisdiction and again transfer it to the Federal court, only to have it handed back once more? It would be hard lines, indeed, if respondent’s cause had no abiding place, whatever, and if no court would open its door for its entertainment. Such game of shuttlecock and battledoor, once well taught and well played, would make ducks and drakes of the law — would make of respondent’s cause nothing but a voice crying in the wilderness for some path loading to a court house. The Federal court had jurisdiction to pass upon its own jurisdiction and to discern and determine the boundaries thereof. The wisdom and grounds of its determination we ought not to examine into or sit in judgment upon. The State court could do no less, or no more, than take the case back at the hands of the court it had sent it to. Appellant appeared, filed an answer, submitted to a trial, and now in its brief does not point out to us any constitutional infirmity in the jurisdiction of the State court, nor does it put its finger upon any specific clause of the Federal constitution or the State Constitution which was impinged upon by the reassumption of jurisdiction by the State court. The constitutional questions will, therefore, be put aside.

(3) Appellant’s objections to the introduction of evidence by respondent in rebuttal tending to show, and in fact showing, that the whistling-post was nearly 160 rods, instead of 80 rods, east of the crossing, are without merit. This evidence was typical matter in rebuttal. Because, appellant introduced testimony showing that the crossing signals were given, not at least 80 rods from the crossing, but at the whistling-post. While appellant was putting in its case was the first time such evidence appeared. By this evidence, it was, of course, assumed that the whistling-post in question was the proper place to give the crossing signal. Now, the statutes require the signals to he given at least 80 rods from the crossing. [R. S. 1899, see. 1102.] Respondent’s rebutting proof tended to destroy the very assumption upon which appellant’s testimony was based, to-wit, that that particular whistling-post was the proper place to give signals. Nor was it necessary for respondent to have pleaded that the whistling-post was not at the proper place. That matter- was no constitutive element in his cause of action. The arrangement of whistling-posts would seem largely a matter of concern as a convenience to railroad employees in complying with the statute. If the post is at the wrong place, such fact will not relieve a railroad company from liability, because the whistling must be done at the place designated by the Legislature, not by a post.

The same disposition must be made of the ruling of the court upon appellant’s offering evidence- in surrebuttal to show what the rules of the company were in regard to whistling for a road-crossing. If the offered evidence had tended to show that the whistling-post was at the proper place, it would have been competent in sur-rebuttal and should have been allowed, because that fact had never been challenged as a fact until respondent challenged it in his rebutting evidence. But the offer was not to show that the whistling-post was 80 rods from the crossing. It was merely to show what the rules of the company were relating to whistling. Cases might arise where the whistling rules of the company might be pertinent. But in this particular instance the rule laid down’ by statutory law ought to be ■the controlling rule and not the rules adopted to regulate the corporate family concerns of appellant, unless we are to adopt the novel notion that such rules may be allowed to override, or modify the application of, express statute. In conclusion, we incline to the view that of two antagonistic voices, each calling for obedience — one of the law, and one of a company rule — the voice of the law has an obstinate and driving preference for the serious purposes of jurisprudence.

(4) By failing to produce here the order, if such there was, of the court, nisi, overruling the motion to strike out the amended petition and an exception to ■that ruling, and by answering over, appellant waived all right to complain of any departure in the amended petition, considered merely as a departure and without reference to the Statute of Limitations (Liese v. Meyer, 143 Mo. l. c. 556, and cases cited), and, hence, may not be heard to complain now of such ruling.

So, too, the ruling of the court on appellant’s motion to strike out parts of respondent’s reply, in so far as such ruling affected the mere question of departure, is disposed of by the holding just made, because, when the motion was filed, appellant had waived the departure, as such, by previously-filing an answer. Nor do- we consider the objection that the new matter pleaded in reply constituted an amendment to the original petition not permitted in a reply, as well taken, because the reply was directed to appellant’s answer to the amended petition. In fact, the original petition was functus officio, and no matter pleaded in such reply could be held •to be pertinent or impertinent by mere reference to the original or abandoned petition, as contended by appellant, bnt must be measured by a reference to the amended petition alone. In that- amended petition respondent sued for the death of Charles L. Walker. In answer appellant pleaded the Statute of Limitations to any .cause of action arising from the death of Charles L. Walker. The reply thereto was, in substance and effect, directed to the avoidance of that plea and was well enough, judged of from the form of the precise objection now under review.

The other and more serious question raised on the present motion refers to the Statute of Limitations of one year, and, as that is fully preserved by the answer to the amended petition, and arises as well on the demurrer to the evidence, as on the peremptory instruction asked by appellant, it may be considered presently in connection with those matters.

(5) Although appellant by answering over waived all questions of mere departure, yet there is preserved by the answer to the amended petition the same question in the form of a substantive, defense— the answer pleading the Statute of Limitations — and if it be true that the cause of action stated in the amended petition is a new cause of action, then the plea in bar is well presented. The section invoked as a defense (sec. 2868), was repealed in 1905 (Laws 1905, p. 137), but, as in force up to that time, reads: “Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of such action shall accrue” — one of the preceding sections of the chapter being the section of the damage act upon which this suit is based. As said, the original petition was for the death of Elbert Walker, while by the amended petition plaintiff sues for the death of Charles L. Walker. It may be well to set forth with some precision the allegations of the original petition referring to Elbert Walker, thus: “Plaintiff states that he is the father of one Elbert Walker now deceased; that the mother of said Elbert Walker died many years ago; that said Elbert Walker, at the date of his death hereinafter mentioned, was a minor, fourteen years old and had no children and was unmarried. . . • . Plaintiff states that on the first day of May, 1901, while said deceased minor, Elbert Walker, was in the exercise of due care, etc., . . . he, said Elbert Walker, was by the negligence, etc., . . . run upon, into and against, ... by reason of which he, Elbert Walker, received serious and grievous bodily injuries, from which he instantly died . . .”

The rule of law applicable seems to be that, “where the amendment sets up no new matter or claim, but is a mere variation of the allegations affecting a demand already in issue, then the amendment relates to the commencement of the suit, and the running of the statute is arrested at that point; but where the amendment introduces a new claim, not before asserted, then it is not treated as relating to the commencement of the suit, but as equivalent to a fresh suit upon a new cause of action, the running of the statute continuing down to the time the amendment is filed.” [Lilly v. Tobbein, 103 Mo. l. c. 490; Buel v. Transfer Co., 45 Mo. l. c. 563.] Valliant, J., speaking to this question, said for this court in Bricken v. Cross, 163 Mo. l. c. 453, that, “The question whether the date at which the defendants’ ten years’ possession should have been complete to give them title should be that of filing the original, or that of filing the amended petition, depends on the question of whether the amended petition merely restated, in more accurate words, the same cause of action that was stated in the original, or stated a different cause of action, or for the first time stated any cause of action at all.”

In applying the foregoing rule, the first inquiry ought to be, what is the proper judicial attitude toward amendments with reference to the Statute of Limitations? The answer, in the language of Napton, J., in Lottman v. Barnett, 62 Mo. l. c. 170, is: “Amendments are allowed expressly to save the cause from the Statute of Limitations, and courts have been liberal in allowing them, when the cause of action is not totally different.” The rule thus announced is steadily applied. [Lilly v. Tobbein, 103 Mo. l. c. 490-1; Courtney v. Blackwell, 150 Mo. l. c. 271-2.]

Again: the legislative policy evidenced by statutory provisions for amendments, which provisions are highly remedial, and have been construed, ex industria, by the courts to further the very life, and purpose of their enactment, should be kept in mind. Thus: by Revised Statutes 1899, section 657, it is provided that, “The court may, at any time before final judgment, in furtherance of justice, and on such terms as may he proper, amend any . . pleading,.....by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the ease, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” By section 659 it is provided that at every stage of the action the court'shall disallow any error or defect in the pleadings not affecting the substantial rights of the adverse party. By section 660 it is provided that, even after final judgment, the court may correct a mistake in the name of a party or a mistake in any other respect or rectify any mistake or imperfection in matters of form, in furtherance of justice. By section 672 it is provided that, “When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall such judgment, or any judgment after trial or submission, ... be reversed, impaired or in any way effected by reason of the following imperfections, omissions, defects, matters or things, or any of them, namely: . . . Tenth, for any mistake in the name of any party or person .' . . when the correct name . . . shall have been rightly alleged in any of the pleadings or proceedings.” By section 676 it is made the duty of a court to construe provisions of law relating to pleadings and to adapt the practice thereunder so as to secure parties from being mislead, to place the party not in fault as nearly as possible in the same condition he would be in if no mistake had been made, to distinguish between form and substance, and to afford known, fixed and certain requisitions in place of the discretion of the court or judge theréof. Again: By section 865 we are prohibited from reversing a judgment unless we believe that error was committed against appellant materially affecting the merits of the action.

The trouble is not with the legislative policy outlined in the foregoing provisions, nor with the rules of law relating to amendments of pleadings, but the pinch comes in applying that policy and those rules to concrete cases. Broadly speaking, it may be said that under cover of an amendment a new cause of action may not be asserted, whether the Statute of Limitations is involved or not, but such departure, where the Statute of Limitations is not involved, may be waived by answering over. And may be so waived if the Statute of Limitations is involved, unless such statute, as, here, is invoked by the answer. On the other hand, in blandly applying the statutes relating to amendments of pleadings, the courts have said that a name even of a party to a suit, is but a means of identity. Thus, process served upon the right person by the wrong name may be, by amendment, made good. [Parry v. Woodson, 33 Mo. l. c. 348.] So, too, in Harkness v. Julian, 53 Mo. 238, it was held that a suing administrator may amend by correcting an averment as to his title to the note in suit. In that case, by the first petition plaintiff sued as an administrator of Elam. By an amended petition he sued as administrator of Dysart, assignee of Elam, and the amendment was allowed. So, in Wellman’s Admr. v. Dismukes, 42 Mo. 101. That suit was to enforce a vendor’s lien. The defense was a failure of title and consideration, and defendant also asked to recover payments made. At the trial it was shown that one Glasscock had become vendee of Dismukes and was entitled to stand in his shoes and recover back any money paid on the original purchase of the land. On this showing of facts, the pleadings were allowed to be amended to bring in Glasscock, who appeared, answered and had judgment in his favor. In Lilly v. Tobbein, supra, an amendment was allowed to a petition in a suit commenced in the name of an unincorporated society, a church, to establish a rejected will. After the five years allowed for commencing such suits, an amendment was held well made which substituted the names of members of the church, suing in their own behalf and in behalf of other church members, as parties plaintiff.

The test of an allowable amendment has been formulated in the pronouncement that the same evidence and the same measure of damages are the criteria of judging of the allowableness of an amendment. [Scovill v. Glasner, 79 Mo. 449; Liese v. Meyer, supra.] But the distinction has been well made that if the test is to be simply that the quantum and quality of the evidence should be precisely the same, then the very purpose of allowing any amendments whatever would be defeated. [Burnham & Co. v. Tillery & Co., 85 Mo. App. l. c. 458-9; Rippee v. Railroad, 154 Mo. l. c. 364-5.] It has been further said that the quality of the evidence is not so much the question as is the quantity or character of the evidence. [Burnham v. Tillery, supra; Clothing Co. v. Railroad, 71 Mo. App. l. c. 246, et seq.] In the latter case many cases were reviewed and cases elsewhere cited with approval holding that the statutory requirement that an amendment ‘ ‘ shall not change substantially the claim or defense” refers to the general identity of the transaction forming the cause of complaint ; to cases holding that where the gist of the action remains the same although the alleged incidents are different, an amendment is well enough; to cases holding that where the amended petition is merely an alteration of the modes in which defendant has broken the contract or caused the injury, it is not the introduction of a new cause of action; and to cases holding that one test applied is: “Would the recovery on the original complaint be a bar to a recovery on the amended complaint!” And see an illuminating discussion of the matter now up, by Goode, J., in Stewart v. Van Horne, 91 Mo. App. 647.

It may be conceded there are discords in the decisions, but we are of the opinion that, in the light of the foregoing ease law, and keeping in mind the liberality allowed in making amendments to get at the right of the matter, to avoid costs and bring lawsuits to an end, to avoid the hardships of the Statute of Limitations, on the one hand, and at the same time, on the other hand, to protect defendants from the injustice of grafting upon one cause of action an entirely different one («. e., putting new wine in old bottles), or grafting upon no cause of action whatever a good cause of action, the amendment in this case was well enough; because it will be seen that there was but one boy killed in the collision and defendant was notified of that fact. There could be no departure, then, on that behalf in the amendment. It will be seen, further, that the identity of the boy killed was established by his age, fourteen years, by the date of the accident, May 1, 1901, by the fact that plaintiff was the only surviving parent of the boy that was killed — all these means of identity were precisely the same in both petitions and are entitled to significance in determining the question. So, too, the measure of damages can not be held to be otherwise than the same, and moreover the quantum and quality of evidence called for are precisely one and the same under both petitions. It would be a harsh ruling to hold that although the law permits contracts, statutes and documents to be judged of by tbeir true intent, discarding mere self-evident tongue and pen lapses, yet, that a different rule would be applied to pleadings. In this case, there was no boy named Elbert Walker. The father, in the first petition, was self-evidently suing for the actual boy killed and not for a myth. He had but the one boy whose mother was dead, and we think defendant could not have been misled, or otherwise injured in its substantial rights, by the amendment, unless we are willing to hold that a mere mistake, once made, in the Christian name of the person killed ought to be irretrievable after one year, and,- hence, determinative of the very right of a case — all of which we are unwilling to do.

(6) The remaining questions relate to the instructions, and the only material question involved, in our opinion, is whether appellant’s peremptory instruction or demurrer to the evidence should have been given.

It was once contended that the very heart of the legislative intent in the statute requiring a bell to be sounded for eighty rods on approaching a crossing, or a whistle to be blown at least eighty rods therefrom and sounded at’intervals as the crossing is approached, was to avoid the distressful destruction of life and limb at crossings arising from the momentary lapse of vigilance or other inadvertences of those about to cross a railroad track on a public highway, which inadvertences and lapses, mere minor negligences, all, are incident to every phase of human life; that is to say, if one be distraught, preoccupied, dull or forgetful as he approaches such crossing, the whistle or sounding bell, presaging doom in its note or stroke, may, “as coming events cast their shadow before,” recall him to himself and, perchance, prevent impending results. Indeed, as a matter of a priori reasoning, it might well be said that, as a traveler on the public road and a railway company have mutual and co-existing rights at a public crossing and, as neither may know when the other may purpose to assert that right, the one who-intends to occupy such crossing at great speed with such tremendous and death-dealing 'machine as a locomotive engine, should always be held to announce its intention. But all such philosophic speculations are in nubibus, because the courts, in adopting a working theory for our statute, early proceeded on the theory that the man running the locomotive and the man driving the team are both but men after all. Both may have their moments of inattention and inadvertence and, therefore, both have the corresponding duty of care and caution. So that, while the one (by statutory command) must look for the crossing and give the statutory signals to save life, yet, the other (by judicial construction) must also take a hand in saving his own life and must stop, if need be, so he can hear and look and listen to avoid peril. The logical sequence is that if negligence on the one side and negligence on the other concur there can be no recovery, and such is the uniform rule except in those states where the doctrine of comparative degrees of negligence holds, The statute, thus construed, has been long left intact by our lawmakers and accordingly must be held satisfactory, or it would have been modified.

There being no statute regulating the rate of speed at country crossings, no particular rate of speed can be held negligent and SO1 the court instructed the jury in this case.

The answer pleaded the contributory negligence of Charles L. Walker as a concurring act of negligence avoiding liability. The evidence is undisputed. The boy was of bright intelligence, fourteen years of age and had good eyesight and hearing. Not only so, but there were no confusing circumstances accompanying the accident, no other trains approaching, no other tracks to watch, no other engines puffing as if to start. The view to the east was plain from the corner where the wagon stopped and they looked and listened, for several hundred feet. The train approached the crossing on a slight fill. It may be, as it was going so much as eighty-eight feet per second, that at the time the boys stopped at the corner it was not in sight, for they were obliged to travel fifty feet to get to the track and were going at, say, three miles per hour — a mere walk — and a computation will show that while they were covering that 50 feet tiie train would run nearly 1000 feet. If we add to that the time lost in starting after their stop and look, we are impressed with the fact the train was not in sight. But it must have come in sight shortly thereafter, and, what is more to the point, while decedent was in complete safety. The evidence and circumstances unitedly are such as to show, beyond cavil or doubt, that neither of these boys ever looked to the east again. Nay, the positive evidence is they looked to the west and were quite occupied in watching some other boys who were on the right of way to the west returning from fishing. It was full day and in the middle of the afternoon. They went slowly up the slope to the track and, when on it, turned their eyes to the east and became aware for the first time the train was upon them. In this condition of things, an adult, male or female, would not be allowed to recover as a matter of law. [Guyer v. Railroad, 174 Mo. 344; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215.] And under similar circumstances it has been held, by a divided court, that a bright, intelligent boy, eleven years old, was'guilty of contributory negligence as a matter of law. [Payne v. Railroad, 136 Mo. 562.] The case at bar is much more pronounced; for these boys knew the train was about due. It was its usual time, and they had been warned and partly acted upon the warning. Besides, they were familar with the crossing and the danger incident thereto. They had hauled timber over it for several years, and, whatever the preconceived views of the writer be, it seems the case presents a condition of things in which there can be no recovery unless the proposition in hand be threshed over anew and the doctrine of this court winnowed and reformulated. It has been held by us that at a certain age, to-wit, eight years, contributory negligence will not be imputed as a matter of law. [Holmes v. Railroad, 190 Mo. 98.] In Graney v. Railroad, 140 Mo. 89, it was held that on the mere fact of age alone (11 years and 9 months) a boy, small of his age, where the case gave no information in respect to his intelligence, knowledge of the running of trains or physical activity, the court would not as a matter of law declare he was guilty of contributory negligence in standing so near the track as to be in danger of rotary-air suction while a train is passing. In that case the boy was standing from two to three feet from the west rail of the track upon which the train was passing. When about one-half or two-thirds of the train had passed, he was seen to turn around, fall upon the ground and roll over under the train, and evidence was introduced showing that his fall and rolling over were produced by the suction or whirling motion of the air caused by the motion of the train. This case was here again and is reported in 157 Mo. 666. There it was held, inter alia, that Graney’s brightness and intelligence (presumably shown at the second trial) placed him on the same plane as if sui juris. [P. 679.]

It keenly touches the heart to see a boy’s life crushed out as this one’s was, and care"must be taken to see that a delicate judicial equipoise is not lost in •considering such case. It has been said in some cases that the true rule is, in effect, that where there can be two opinions among reasonable men based on the evidence upon the question of contributory negligence of' a youth, the question should be sent to the jury. But. where there could be but one opinion about it among reasonable men, it is a matter of law for the court. [Campbell v. Railroad, 175 Mo. 161.] Tbe rule of law that a youth should not be held to the same degree of care as an adult is one inherent in the nature of things and springs spontaneously in the human mind, becáuse, neither the law, nor the parent, nor society judges a youth as an adult, and this is-in accord with jus naturale. Thus, it was held by one entitled to speak ex cathedra, as follows: “When I was a child, I spake as a child, I understood as a child, I thought as a child; but when I became a man, I put away childish things.” Nevertheless, the known danger from a locomotive is as apparent to a bright, experienced boy of fourteen as to an adult, and the necessity and office of using his eye is such a primal and simple matter as to be well within the grasp of that age. Can it be said that if this boy had blindfolded himself and in that condition had driven across the track, after the warning he had received and when it was shown that he had knowledge the train was due and might be any instant upon him, the appellant would be liable? We think not. If, instead of blindfolding himself, he did wha.t was the same, that is, turned his face and looked in the other direction, is the principle not the same?

But in this ease it is not necessary to allow the case to pass off on the question that, as a matter of law, we should hold that this boy was sui juris and guilty of contributory negligence. Because, as will be seen by the instructions given for the plaintiff, he asked to have the case submitted on the theory that the boy was sui juris, and the degree of care invoked by him in instructions 1 and 2, is the degree of care expected and exacted of ordinary prudent persons. Following that, the defendant was allowed an instruction putting the case to the jury on the theory that the boy was sui juris, and that his duty to look and listen for the approaching train was not entirely performed by stopping fifty feet away, and slowly and without again looldng approaching the track. The case having been tried below on that theory must he reviewed here ou the same theory. [Chinn v. Naylor, 182 Mo. l. c. 594-5.] On this view, there is no escape from the conclusion that the court, on the undisputed facts, instead of submitting the case to the jury, should have taken the case from the jury.

Other objections leveled at respondent’s instructions need pot he considered.

The cause is, accordingly, reversed.

All concur, Marshall, J., in the result.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    WOOD, Appellant, v. THOMAS J. SMITH.
    Division One,
    February 22, 1906.
    1. CONVEYANCE: After-Acquired Title. A warranty deed executed before the patentee obtained his patent conveyed to his grantee his after-acquired title.
    2. TAX DEED: Double taxation: One Actual Payment: Party to Suit: Apparent Owner. The record does not show whether or not the patent was recorded, but the patentee conveyed the land to defendant, who did not record his deed. The assessor knew the land was defendant’s homestead, and when he came to assess it defendant exhibited to him his deed, and the assessor made the assessment against defendant therefrom, but misdescribed the land, and thereafter assessed it against the patentee. Thereafter defendant paid the taxes, the collector at the time correcting the description in the tax receipt, and made entry in his books of payment by defendant. Thereafter, this collector went out of office, and suit was brought against the patentee alone, and judgment obtained and the land sold to plaintiff.

      Held; first, that as defendant was not made a party to the tax suit, the judgment therein was not binding on him, and it was permissible for him, in a subsequent suit in ejectment by the purchaser at the tax sale, to show the tme facts of the transaction.

      Held, second, that the true owner who had returned the land for assessment, to an assessor who knew it was his homestead, and paid the taxes to a collector who knew the same facts and left a record of payment of the taxes in his office, should not be deprived of his land solely on the ground that there was a double assessment, the other being against the apparent owner.

      Held, third, if the patent was not recorded, the assessment against the patentee was not made against an apparent owner.

      Appeal from Taney Circuit Court. — How. Asbury Burkhead, Judge.
    Affirmed.

      Groom & McConkey for appellant.
    (1) The provision of the statute, that suits for hack taxes shall he brought against the owner of the land, is fulfilled by bringing the suit against the person who appears from the record to be the owner, in the absence of notice of the fact that such person is not the true owner. State ex rel. v. Sack, 79 Mo. 661; Simonson v. Dolan, 114 Mo. 176. (2) In an action in ejectment against one claiming to he the owner, by a purchaser at the tax sale under a judgment of the circuit court rendered in a suit for back taxes, the sheriff’s deed cannot be defeated by showing that the taxes sued for had been paid prior to the institution of the suit and the returning of the land as delinquent, the proceedings being otherwise regular. Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190'; Allen v. McCabe, 93 Mo. 138; Brown v. Walker, 85 Mo. 262; Wellshear v. Kelley, 69 Mo. 343. (3) A purchaser under judgment for the taxes against the person appearing from the record to be the owner of the land, in the absence of notice to the contrary, will be protected in his purchase against the holder of an unrecorded deed from such apparent owner. Payne v. Lott, 90 Mo. 676.

      Price & Ford for respondent.
    The latter half of section 9266 evidently contemplates that lands sold when taxes have been paid can be recovered, as the sale is absolutely void. Huber v. Pickier, 94 Mo. 382; Hampton v. McClanahan, 143 Mo. 501. The payment of a tax destroys the lien of such tax, and renders invalid and void any sale made for the enforcement thereof. Hodge v. Hubb, 94 Mo. 489; Harness v. Cravens, 126 Mo. 233. Actual notice countervails the effect of registry and dispenses with it. Hodge v. Hubb, 94 Mo. 489. This being, ejectment under deed obtained under sheriff’s sale for taxes, there is no expressed or implied warranty of title, and the rule of caveat emptor applies. Hensley v. Bark.er, 10 Mo. 157; Carter v. Phillips, 49 Mo. App. 319. The tax suit was against Middleton alone; therefore, only his title could be conveyed. Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676. In suits of ejectment plaintiff must rely on the strength of his title or right to possession, and not on the weakness of the defendant’s. Siemers v. Schrader, 14 Mo. App. 346; Marvin v. Elliott, 99 Mo. 616; Mather v. Walsh,. 107 Mo. 121; Wilkerson v. Eilers, 114 Mo. 245; West v. Bretelle, 115 Mo. 653; Harwood v. Tracy, 118 Mo. 631; Mutherin v. Simpson, 124 Mo. 610.
   MARSHALL, J.

— This is an action in ejectment for the recovery of the west half of lots 1 and 2 of the northeast quarter, and the southeast quarter of the northwest quarter, and the northeast quarter of the southwest quarter, of section 5, township 22, range 20, Taney county. The petition is in the usual form, and the ouster is laid as of May 2nd, 1902. The answer is a general denial. A jury was waived and the case was tried by the court. No instructions were asked or given. The court made a written finding of fact, apparently on its own motion, for no request therefor is con tained in the record. There was a judgment for the defendant, and the plaintiff appealed.

The case made is this:

The plaintiff offered in evidence a patent from the United States to William J. Middleton, dated June 11, 1895, conveying the land in question. The plaintiff then offered in evidence a sheriff’s deed, under a judgment for taxes for the year 1896, conveying the interest of Middleton, the patentee, to the plaintiff Wood, said deed being dated April 30th, 1902. The plaintiff then introduced evidence tending to show that the defendant was in possession of the land, and showing the value thereof, and then rested.

The defendant read in evidence a warranty deed from said Middleton to the defendant, dated October 3rd, 1894, and filed for record on the 30th of May, 1902. The defendant then read in evidence the entry on the tax hook for the year 1896, which was as follows:

“Current No. 1402, William J.Middleton; number of acres 149.30; west half lots 1 and 2, northeast quarter southwest fractional quarter, section 5, township' 22, range 20; valuation $205.00; state tax, .51; county taxes, $2.36; total $2.87.”

The defendant also read in evidence an entry from the tax book of Taney county for the year 1896, as follows:

“Current No. 1832; Smith, T. J.; number of'acres 149.31; west half lots 1 and 2 northwest quarter, and north half lots 1 and 2 northeast quarter, section 5, township 22, range 20; valuation $324.00; State taxes .81; county tax, $3.73; total $4.54; when paid, January 30th, 1897; T. J. Smith. ’ ’ Which was duly signed by the collector of the revenue of Taney county.

The defendant also offered in evidence a tax receipt, dated January 30th, 1897, showing the payment by T. J. Smith of $5.99, on 149.31 acres, for the year 1896, and being the west half of lots 1 and 2 of the northwest quarter, and the east half of lot 2, and the northwest fractional quarter and the northeast quarter of southwest quarter of section 5, township 22, range 20. The defendant then testified that when the assessor came to assess his land, he handed him his deed, and the assessor took the numbers of the land, and assessed it; that when he went to pay the taxes, the collector discovered that the description in the tax receipt did not correspond with the description of the land set ont in the deed, and thereupon the collector corrected the tax receipt, so as to make the descriptions correspond, and then the defendant paid the taxes.

The record does not contain an abstract of the files in the taxsuit, but from the whole testimony adduced it is apparent that the suit for taxes was brought against Middleton, as the apparent owner, although there is nothing in the abstract of the record to show whether or not at that time the patent from the government to Middleton had been recorded, or that it has ever been recorded.

The abstract of the record does not show when the defendant entered upon the possession of the property, but it was admitted in open court by defendant that he was in possession at the time the tax suit was brought, and is still in possession, and the finding of fact by the court showed that when the defendant purchased the land from Middleton, he moved on it, and has lived on it and cultivated it ever since. The plaintiff objected to the deed from Middleton to the defendant, on the ground that it was not filed for record until after the plaintiff had purchased the land at the tax sale. The plaintiff also objected to the assessments being offered in evidence, on the ground that such matters would have been a proper defense in the tax suit, but could not be shown in this suit. The court found the fact to be that the defendant was an illiterate man, and that when the assessor went to his place to assess the tax for 1896, the defendant delivered his deed to the assessor, and the assessor undertook to take the description of the land from the deed, but that in so doing he made a mistake and described the north half of lots 1 and 2 of the northeast quarter, and the west half of lots 1 and 2 of the northwest quarter of section 5, instead of describing the east half of lots 1 and 2 of the northeast quarter, and the east half of lot 1, and the southeast quarter of the northwest quarter and the northeast quarter of the southwest quarter of section 5, and that on the 30th of January, 1897, the defendant paid the taxes that were assessed against the land in question, and received a receipt therefor, which, after correction in the description by the collector, as aforesaid, was the true description of the land owned and occupied by the defendant. And, furthermore, that the taxes on the land erroneously described by the assessor, to-wit, the north half of lots 1 and 2 of the northeast quarter, and the west half of lots 1 and 2 of the northwest quarter of section 5, had not been paid for the year 1896; that the tax suit was against Middleton as sole defendant, and the judgment therein rendered on the 4th of December, 1901, and the land sold on the 30th of April, 1902, to the plaintiff.

The court then found that for "the year 1896, there was a double assessment, and that by reason of the illiteracy of the defendant, and the fact that he showed his deed to the assessor, and that the mistake in the description of the land was a mistake of the assess- or, and by reason of the payment, by the defendant, of the taxes on the land in question before the tax suit was instituted, the plaintiff acquired no title by virtue of the tax sale, and that defendant, not having been made a party defendant in the tax suit, was entitled to prove the payment in this case. Prom this judgment the plaintiff appealed.

The plaintiff relies upon the doctrine that the collector in instituting a suit for taxes is only obliged to look to the record of deeds to see who the owner of the property is, and that a judgment for taxes against the apparent owner conveys a good title to the purchaser at the tax sale, as against the true owner, whose deed is not recorded at the date of the institution of the tax sale. That is the doctrine in this State. [Vance v. Corrigan, 78 Mo. 94; Watt v. Donnell, 80 Mo. 195; Payne v. Lott, 90 Mo. 676; Evans v. Robberson, 92 Mo. 192; Allen v. Ray, 96 Mo. 547; Simonson v. Dolan, 114 Mo. 176; Weir v. Cordz-Fisher Lumber Co., 186 Mo. 388]. And the same rule is recognized in Moore v. Woodruff (146 Mo. 597).

The question in this case is whether or not the facts bring this case within the meaning and spirit of the rule. The assessor assessed the land for the year 1896 against Middleton, the patentee, and after seeing the deed from Middleton to tlm defendant, he undertook to assess the same land to the defendant, but made a mistake in the description of 'the land. As early as January 30th, 1897, when the defendant went to pay the taxes on the land, the collector discovered the mistake in the description and corrected it in the tax bill, and the defendant paid the taxes for the year 1896 on the land in question, according to the correct description then contained in the tax receipt. Both the assessor and collector, at that time, knew that the defendant had purchased the land from Middleton, the patentee, and that he was living on the land as his homestead. As nearly as can be gleaned from the testimony, another collector came into office at some time between the 30th of'January, 1897, and the date of the institution of the tax suit, which is not disclosed by the record, but evidently during the year 1901, as the judgment was rendered on December 4th, 1901, and the new collector then instituted suit against Middleton to collect the taxes on the land, for the year 1896, on which the defendant had, •on the 30th of January, 1897, paid taxes. The record does not disclose whether the patent to Middleton was recorded at that time, or not. Middleton was made the defendant in that tax suit, and judgment obtained against him, whether by default or not does not appear, and the land was sold and the plaintiff became the purchaser, on April 30th, 1902. Thereafter, on the 31st of May, 1902, and before the institution of this suit, the defendent filed for record the deed from Middleton to himself, dated October 3rd, 1894, which deed antedated the patent of theUnited States to Middleton, but which, being a warranty deed, conveyed Middleton’s after-acquired title to tbe defendent.

By reason of tbe premises there can be no question that tbe taxes on tbe land here involved bad been paid by tbe defendant long prior to tbe institution of tbe tax suit, under wbicb tbe plaintiff acquired title. There can also be no question that when tbe collector corrected tbe misdescription in tbe tax receipt, on tbe 30th of January, 1897, when tbe defendant paid tbe taxes on tbe land, there were then two assessments against tbe land, one against tbe defendant and the other against Middleton. Tbe defendant was not made a party to tbe tax suit, and therefore that judgment is not binding upon him, and it was perfectly permissible for him, in this suit, to show tbe true facts in tbe transaction.

Tbe matter resolves itself into this: When tbe assessor went to assess this land, be found tbe defendant occupying it as bis homestead. Tbe defendant was an illiterate man, and in order to give tbe assessor a correct description of tbe land be showed him bis deed to tbe land. Tbe assessor made a mistake in copying tbe description from tbe deed. Tbe assessor then assessed this land to Middleton. Thereafter, in January, 1897, when the defendant went to pay bis taxes on this land, tbe mistake in tbe description was discovered and corrected by tbe collector, and tbe defendant paid tbe taxes for tbe year 1896, and received from tbe collector a receipt therefor, wbicb properly described tbe land owned and occupied by tbe defendant and involved herein. Thereafter tbe plaintiff beard nothing more about tbe matter, so far as tbe record discloses, until this suit in ejectment was brought. He then learned that bis land bad been sold for taxes for tbe year 1896 after be bad paid tbe taxes therefor, under a judgment against Middleton, in a tax suit to wbicb be was not a party. Under tbe circumstances detailed there can be no difference between fair-minded men that tbe defendant did all that could be asked of any citizen. He showed the assessor the deed to the land. He paid the taxes and received a receipt therefor, properly describing the land. He had a right, then, to assume that he had discharged his duty as a citizen. All of the State’s revenue officers, including the assessor and collector, then in office, knew that the defendant owned the land, and that he had paid the taxes thereon. Thereafter a new collector was elected and without investigating to see whether the taxes on this land had, in fact, been paid by the defendant on January 30th, 1897, as the books of the collector showed, the new collector instituted suit against Middleton to collect the taxes for the year 1896 on the same land.

It does not appear from the record whether or not the new collector knew that the defendant whs in the possession of the land, occupying it as his homestead. The case is presented upon the cold theory that the collector found that the record of deeds showed that this land had been assessed for the taxes of 1896 against Middleton, and that Middleton was the apparent owner of the land. It is true Middleton was the apparent owner of the land, as shown by the records in the recorder of deeds ’ office, but it is also true that the books of the collector’s office showed that thé taxes for the year. 1896 upon this identical land had been paid by the. defendant Smith, on the 30th of January, 1897. Thus, while the books of the recorder of deeds showed Middleton to be the apparent owner, the books of the collector’s office showed that the taxes for which the land was sold, had been paid before the institution of the tax suit, by the defendant, Smith. Thus the books of the collector’s office gave notice to the collector that the tale told by the books in the recorder of deed’s office was not the true status of affairs. It does not appear whether the plaintiff, who purchased at the tax sale, knew that the defendant lived on the land as his homestead, and had paid the taxes for the year 1896 or not, but in its last analysis it leaves the case in this shape: Whether the true owner, who had returned his land for assessment, and who. had paid the taxes, should lose his land on account of a mistake by the assessor in describing the land, and thus making a double assessment; or whether the purchaser at a tax sale, for taxes on the> land which had already been paid prior to the institution of the tax suit, and which the books of the collector showed had been paid, should lose the amount he bid for the land at the tax sale, which' in this case was,. $2.87, with interest and costs, aggregating $13, for a tract of land comprising 149.30 acres, or a little less than nine cents an acre.

II.

The foregoing is based upon the assumption that-the patent from the government to Middleton was recorded in Taney county, and that an examination of the records in the office of the recorder of deeds of that county would have shown him to be the apparent owner. But in this case there is no evidence whatever that the patent to Middleton was ever recorded and no evidence of any entry of the land by Middleton or any one else. Therefore, an examination of the records in that county would not have shown either to the collector or to the purchaser at the tax sale that Middleton was the apparent owner. Hence, in this case there was no apparent owner.

Under these circumstances this case is an exception to the general rule above stated which obtains in this State, and the judgment of the lower court, in favor of the defendant, is right and it is affirmed.

All concur.


author: VALLIANT, J.

text:
    MALINDA E. DAGGS, Plaintiff in Error, v. JOHN HENRY SMITH et al.
    Division One,
    February 22, 1906.
    1. APPELLATE PRACTICE: , Fraud: No Exception to Finding. Where one count of the petition is a suit for damages for fraud and conspiracy for placing a cloud on plaintiff’s title, a finding of the trial court that there was no fraud, to which there was no exception, will not be considered on appeal.
    2. -: Motion to Review: Record Entries. A motion to review a judgment should not be copied in full upon the record. That is a useless incumbrance of the record. The record should show the filing of the motion and the ruling of the court thereon; but the motion cannot be brought to the attention of the appellate court by being copied into the record proper; that can be done only by a bill of exceptions.
    3. JUDGMENT: Unauthorized by Pleadings. If a clause in the decree giving a personal judgment against plaintiff for the amount of her debt was not authorized by the pleadings in the case, which was a suit to set aside a sale under a deed of trust and permitting plaintiff to redeem, she cannot complain if she invited the error, and refrained from brining it to the attention of the court while the decree was yet in the control of the court.
    4. -: Deed of Trust: Personal Judgment: Error Affecting Merits. The appellate court will not reverse a judgment unless error was committed against appellant materially affecting the merits of the action. And where plaintiff sues to redeem property sold under a deed of trust, and in her petition alleges, that the value of the land is more than twice the debt found to be due, and by her petition tenders into the court the money to pay off and discharge the debt, it cannot be seen how her rights were materially affected by the rendering of a personal judgment against her, in addition to foreclosing the mortgage lien, «. and permitting her to redeem within a time specified.
    Error to Hannibal Court of Common Pleas. — Now. D. • H. Eby, Judge.
    Affirmed,

      A. J. Daggs for plaintiff in error.
    (1) This court will review the record proper in any case brought to this court by a writ of error, and correct it agreeable to law. R. S. 1899, sec. 868; South St. Joseph, etc., Co. v. Bretz, 125 Mo. 474; Richard v. George, 34 Mo. 109; Railroad v. Lewright, 113 Mo. 660; Railroad v. Carlisle, 94 Mo. 166; State ex rel. v. Scott, 104 Mo. 26; Lillie v. Menke, 28 S. W. 648. (2) The findings of facts are not responsive to the facts set up or responsive to the issues on the pleadings. Loan & Trust Co. v. Browne, 157 Mo. 116; Coleman v. Hicks, 158 Mo. 116; Coleman v. Hicks, 163 Mo. 560; Irwin v. Childs, 28 Mo. 578; White v Rush, 58 Mo. 105. (3) The judgment is not responsive to the issues made by the pleadings. Needles v. Ford, 167 Mo. 495; Bulken v. Cross, 140 Mo. 166; Dougherty v. Adkins, 81 Mo. 411; Newham v. Kenton, 79 Mo. 382; White v. Rush, supra; Liese v. Meyers, 143 Mo. 547; Wolf v. Brown, 142 Mo. 612; Davis & Co. v.,Roswell & Co., 77 Mo. App. 294. (4) The judgment is given in a lump sum upon one principal note and two .coupon notes for an amount about $700 in excess of what could possibly be due. Rumsey v. Railroad, 144 Mo. 189; Dewey v. Lenhardt, 27 Mo. App. 517; Stowles-v. Freeman, 81 Mo. 544. The terms imposed upon the plaintiff in error of thirty days is too short to redeem; the usual time is six months. (5) Stephenson v. Kilpatrick, 166 Mo. 270. (6) The motion to review the judgment should have been sustained. R. S. 1899, sec. 795; Clawser v. Noland, 72 Mo. App. 217. (7) The court exceeded its jurisdiction. Fairchild v. Cresswell, 109 Mo. 29.

      F. L. Schofield for defendants in error.
    (1) Both the findings of fact and the decree were made and entered by the express wish, consent and agreement of the plaintiff in error and this appears on the face of the record. In such case in most jurisdictions appeal or writ of error will not lie at all, and in the jurisdictions where appeal or error is permitted, the appellate court will look into or review the record no further than to ascertain that the decree was one by consent of the complaining party, and will then affirm it without considering the merits of the case. 16 Cyc. Law & Proc., 473; 2 Dan. Ch. Prac. (Ed. 1879), star page 973; Van Zile, Eq. PL & Prac. (Ed. 1894), sec. 326; 1 Barb. Ch. Prac. (Ed. 1874), 380'; 2 Beach, Mod. Eq. Prac. (Ed. 1894), sec. 795; French v. Shotwell, 5 Johns. Ch. 564; Morris, Admr., v. Peyton’s Admr., 29 W. Va. 201; Jarvis v. Palmer, 1 Barb'. Ch. 379; Atkinson v. Holroyd, 1 Cow. 709; Railroad v. United States, 113 U. S. 266; U. S. v. Babbitt, 104 U. S. 767; Railroad v. Ketchrm, 101 U. S. 289; Armstrong v. Cooper, 11 111. 540; Laird v. Thomas, 22 Tex. 274; Winter v. Rose, 32 Ala. 447; Garner v. Prewitt, 32 Ala. 13; People v. Owners of Lands, 108 111. 442; Warford v. Eads, 10 Iowa 592; Railroad v. Railroad, 96 Iowa 16; Thompson v. Perkins, 57 Me. 290; Note to Perrin v. White, 36 N. J. Eq. 2; McCafferty v. Celluloid Co., 104 Fed. 305. (2) The alleged error of which plaintiff complains was, if committed, comihitted by express invitation and assistance of plaintiff in error. In such case she shall not be heard to complain. Flowers v. Helm, 29 Mo. 324; Realty Co. v. Moynihan, 179 Mo. 629; Casler v. Chase, 160 Mo. 418; Johnson v. Brinkman, 116 Mo. 559; Water Co. v. Neosho, 136 Mo. 498; Berkson v. Railroad, 144 Mo. 211; Harper v. Morse, 114 Mo. 317; State v. Manicke, 139 Mo. 545; Christian v. Ins. Co., 143 Mo. 460. (3) Even had the case been contested in the court below, and both parties had, by the introduction of evidence and receiving instructions, treated the issues tried as though they had been duly made by the pleadings, neither could complain in the appellate court. Hilz v. Railroad, 101 Mo. 36; Hill v. Meyer, 140 Mo. 433; Frank v. Frank, 6 Mo. App. 588; Pope v. Ramsey, 78 Mo. App. 157; Hackett v. Underwriters,-79 Mo. App. 16; Kinser v. Kinser, 130 Mo. 126; Baker v. Baker, 136 Mo. 512.
   VALLIANT, J.

— In the brief for plaintiff in error, who was also the original plaintiff, it is said that this is a suit to remove a cloud from the plaintiff’s otherwise clear title, and for damages resulting to her from frauds and conspiracy on the part of defendants. By the finding of the trial court, to which there was no exception, there was no fraud or conspiracy, and therefore we may disregard that branch of the case.

The. substance of the petition which is quite long is as follows:

Plaintiff was the owner of certain land in Scotland county worth $16,000, rental value $1,000 per annum; she also had a large amount of personal property on the land and all this, land and personalty, she left in the custody and control of one Bechtel, who was her partner, while she was absent in Arizona. On April 3d, 1900, she executed her note for $6,200 to one Swan, due five years after date, and five interest notes for $372 each, for money borrowed, and to secure the notes she executed a deed of trust conveying the land to defendant John Henry Smith, trustee, with power to sell on default of payment, etc. These notes and this deed of trust the plaintiff sent by mail to the trustee, through whom or whose firm the loan was made, at Kansas City, and the deed was duly recorded. Default was made in payment of the interest due April 3d, 1901, the trustee at the request of Swan advertised and sold the land and it was struck off to defendant Q. V. Gillispie for $6,000, who in turn executed her notes to Swan for the amount of her bid and a new deed of trust to secure the same. Gillispie brought suit for possession against the tenants of plaintiff, recovered judgment, and was put into possession. The petition goes on at considerable length to make statements indicating that the sale by the trustee and the proceedings thereafter were the result of fraud by the trustee conspiring with plaintiff’s partner Bechtel and with Swan and others to deprive her, in her absence, of her property. The petition admits that default in the interest on the deed of trust debt to Swan had been made and taxes on the property were unpaid, but prays that the trustee’s sale may be set aside and the deeds following and resulting from that sale be cancelled, that her deed of trust notes be cancelled, and that her $6,200 debt and interest be decreed to be a lien on the land and that she be given a reasonable time in which to pay it off, and that the rents and profits be found and deducted from the debt, and that she have judgment for $5,000; damages for the fraud.

What answer if any was filed the record does not show, but in the brief for plaintiff in error it is said that the answer was a general denial for all the defendants except two, who, though served with process, made default.

When the cause came on for trial there was no evidence introduced, hut the parties appeared and agreed that the court might make certain findings of fact; thereupon, the decree recites that the court did find certain facts, among which were that the plaintiff owed on her deed of trust debt, for principal, interest and taxes, $7,766.84, that the defendants were not guilty of any fraud or conspiracy, but that the trustee’s sale was invalid because it was not advertised according to law. After reciting the findings of facts the decree goes on: “It is, therefore , by consent and agreement of the plaintiff and the answering defendants ordered adjudged and decreed” that the trustee’s sale be set aside and all the deeds and transactions affecting the plaintiff’s title and possession of the property dependent on the trustee ’s sale he vacated, that the original deed of trust from plaintiff of date April 3d, 1900, be re-instated as in full force to secure tbe amount then due on that date, $7,766.84, which the decree also charged as a lien on the land, and a personal judgment for the sum, with interest from date of the decree and costs of the suit, was rendered in favor of defendant Swan against the plaintiff, and “that the equity of redemption of the plaintiff in and to said above-mentioned and described real estate be, and the same is forever foreclosed and said defendant Swan have his special writ of execution against said real estate for said amount, with interest and costs of this suit and that said real estate be sold to satisfy the same. But it is further ordered that execution hereon be stayed until the 26th day of October, 1902, at any time before which last-mentioned date plaintiff shall be allowed to pay said sum and interest and costs.” That decree was rendered at the September term, 1902. There was no motion for a new trial or in arrest filed and no exception taken. At the next term of the court, January term, 1903, the record shows that there was a motion filed by the plaintiff to “review, modify and correct the judgment,” which was overruled, but there was no exception taken. There is no bill of exceptions in the record. The cause is brought here on the record proper by writ of error. Prom the certified copy of the record proper it seems that the clerk, at the January term, 1903, in entering on his record the filing of the motion to review, copied the motion, the notice and the affidavit of service into his record. That was a useless encumbrance of the record. The record should show the filing of the motion, and the ruling of the court upon it, but the motion should not be copied into the record proper; it can be brought to the attention of the appellate court only by bill of exceptions.

Strictly speaking it cannot be said that what we have before us is even the record proper in the case, because it is not certified to be the full record; it is certified only to be “a true copy of the amended petition, decree of court, motion to modify decree and record entries in the cause.” The answer of the defendants is not given. The omission of the answer from the record becomes important in view of the fact that the main ground of complaint on the part of the plaintiff in error is that the findings of the court are not responsive to the issues and that the judgment goes beyond the pleadings. In the brief of plaintiff in error it 'is said that the answer of defendants was a general denial, but we cannot go to the briefs for facts that do not appear in the record.

The real nature of the plaintiff’s suit as shown by the petition was one to cancel the trustee’s deed and the subsequent deeds depending on it and to allow plaintiff to redeem. The cause was submitted for judgment on what was substantially an agreed statement of facts, which was put in the somewhat peculiar form of a finding by the court of the facts without evidence but by agreement of parties expressed in open court. The plaintiff now complains that the finding of the amount due on her deed of trust obligation was in excess of the amount really due. It was perhaps in excess of the amount of principal and interest on the notes, but the finding in its terms is not limited to principal and interest on the notes, but to advances made by the mortgagee on account thereof, and whilst the items of the advances are not given, yet the petition admits that the taxes were unpaid and there may have been other items of expense paid by the mortgagee to protect his loan. But at all events that finding was made without objection, and really by the agreement of the plaintiff, and was acquiesced in until the term of the court had passed and until the court’s power to correct it, if it was wrong, had ceased to exist. There is nothing to show that plaintiff made any claim at the trial for a reduction of the amount due on her mortgage debt for rents and profits arising from her land.

The main point of complaint seems to be that in the decree there is a clause which gives a personal judgment against the plaintiff for the amount due ou the mortgage debt and that, it is insisted, was not authorized by the pleadings. In support of this contention we are referred to South St. Joseph Land Co. v. Bretz, 125 Mo. 418, wherein it was held that where a manifest error appears on the face of the judgment it will be corrected on appeal, although the judgment purports to be based on an agreed statement of fact. In that case it was held that the finding of the facts by the agreement of the parties and the incorporating of the findings in the decree made them equivalent to a special verdict or an agreed case, but that that did not preclude a party from appealing if the judgment was not what it should have been on the facts. That is entirely correct. The party may agree to the facts, but he is nevertheless entitled to a correct judgment on the facts as agreed.

In the case at bar, however, the plaintiff has done more than agree to the facts, she has also agreed to the judgment, and if there is any error in it she has led the court into committing the error. One will not on appeal be heard to complain of an error into which he has himself led the court.

The judgment on the whole was very favorable to the plaintiff, perhaps more so than in strictness she was entitled to under her petition and the findings. Eliminating all the charges of fraud for which, by the agreed finding, there was no foundation, there was left for ground of complaint only the allegation of lack of notice of the trustee’s sale, and that was very vaguely charged in the petition, not specified as it was in the finding. Yet that was made the foundation, evidently' by agreement, for granting the plaintiff substantially all that she asked; the trustee’s deed and the deeds following and depending on it were set aside and she was granted thirty days in which to pay the debt. It is now claimed that she ought to have been given six months, but- it is sufficient to say that she consented to the decree giving her thirty days.

If the clause in the decree giving a personal judgment against, the plaintiff for the amount due was unauthorized by the pleadings, it was an error which she invited and which she refrained from bringing to the attention' of the court while the decree was yet in the control of the court. If, as is stated in the petition, the property is worth $16,000 the personal judgment adds nothing to the plaintiff’s burden. Plaintiff in her petition prays that she may “be permitted to pay off and discharge” the mortgage debt and expressly “tenders the money into court here for that purpose.” If she is willing to pay the debt and is ready to do so, as in her I>etition she says she is, how is she hurt by the clause giving a personal judgment against her? We are forbidden by law to reverse a judgment unless we “believe that error was committed by such court against appellant or plaintiff in error and materially affecting the merits of the action.” [Sec. 865, R. S. 1899.]

There is no error in this record of which the plaintiff in error has a right to complain.

The judgment is affirmed.

All concur.