author: VALLIANT, J.

text:
    TRIMBLE et al. v. TEXARKANA & FORT SMITH RAILWAY COMPANY, Appellant.
    Division One,
    October 19, 1906.
    1. RECEIVERSHIP: Attorneys’ Fee: Subsidiary Companies. The fact that attorneys rendered their bills to the controlling railroad company which operated the whole system, including the lines of the subsidiary companies, and received all its earnings, during the days that the principal company was a going concern, is no reason why, when a receiver is appointed for all the companies, and the same attorneys represent all and protect the interests of each, they should not be paid by one of the subsidiary companies for services rendered it during the continuance of the receivership and a reorganization of the properties.
    2. -: -: -: Implied Contract. The subsidiary company had authority to make contracts, even though the principal company, as owner and controller of its stock, elected its officers and directors and conceded to them only such control as the laws of its domicile required; and where attorneys acted for that company in the receivership proceedings and in the reorganization of the properties, which services were accepted, it must be held that it did so under an implied contract to pay for such services their reasonable value.
    3. SATISFACTION: Must be Pleaded. Satisfaction must be pleaded in order to be available as a defense in a suit on an implied contract to pay for services rendered.
    Appeal from Jackson Circuit Court. — Ho#. James Gibson, Judge.
    Affirmed.

      S. W. 'More and Cyrus Crane for appellant.
    (1) There was no express contract between the parties. It was plaintiffs’ duty to render the services suéd for under the retainer from the Gulf Company and to get pay therefor from that company. 2 Clark & Skyles, Law of Agency, sec. 691, p. 1507; Stewart v. Emerson, 70 Mo. App. 486. (2) There can be no recovery in the case on an implied contract or implied promise to pay. 2 Clark & Skyles, Law of Agency, p. 1058; Lamar v. Hall, 129 Fed. 84; Mnscott v. Stubbs, 24 Kas. 522; Roselius v. Delechaise, 5 La. Ann. 481; Westmoreland v. Martin, 24 S. C. 238; Wailes v. Brown, 27 La. Ann. 411; Hersled v. Moss, 28 Ind. 354; Jones v. Wood, 76 Pa. St. 410; Smith v. Lyford, 24 Me. 150; Bank v. Benton, 59 Ky. (2 Mete.) 243; Railroad v. Larned, 26-111. 220; Grimball v. C'ruse, 70 Ala. 544; Simms v. Floyd, 65 Ga. 719. (3) There can be no recovery because the alleged services were not and could not be of any value or benefit to defendant. (4) There can be no recovery because to permit it would be to allow an attorney to represent, and collect fees from, both parties to the same suit, which is contrary to the policy of the law. 2 Am. and Eng. Ency. Law (2 Ed.), 295; Weeks on Attorneys at Law, sec. 271; Farwell v. Telegraph Co., 44 N. E. (111.) 891; McDonald v. Wagner, 5 Mo. App. 56; Strong v. Brennan, 183 111. 97; White v. HafCaker, 27 111. 349.

      John A. Eaton for respondents.
    (1) The defendant, the Texarkana & Fort Smith Railway Company, was a party in its own behalf in the negotiations and in the proceedings in the receivership suit in which the legal services sued for were rendered, and accepted the benefits, advantages and results of the services, and in law contracted and became obligated to pay the reasonable value of such services. Reinhard on Agency, sec. 83; Weeks on Attorneys at Law, secs. 187, 339 and 340; Clark & Skyles on Agency, secs. 56 and 691; Taussig v. Railroad, 166 Mo. 28 (same case again decided 186 Mo. 269); Webb v. Browning, 14 Mo. 355; Forsyth v. Doolittle, 120 U.'S. 73; Ebel v. Stringer (Neb.), 102 N. W. 466; Southgate v. Railroad, 61 Mo. 89; Kiley v. Forsee, 57 Mo. 390; Seals v. Edmondson, 73 Ala. 295; Davis v. Trimble (Ark.), 88 S. W. 920; Brown v. Arnold, 131 Fed. 723. (2) After tbe 1st day of April, 1899, and tbe appointment of separate receivers for tbe properties of tbe Kansas City, Pittsburg Gulf Railroad Company and the Texarkana & Fort Smith Railway Company, the prior relations in respect to the property of each became and were severed in law and in fact, and the property of the Gulf Company was not similarly situated nor administered in the receivership suit with that of the defendant; and the defendant company did enter the negotiations and proceedings in which the services sued for were rendered for the primary purpose in its own behalf to preserve its property as a part of an entire system of railroad under the management of a reorganized corporation. Davis v. Walker, 131 Ala. 204; Cook on Corporations, sec. 709; Railroad v. Railroad, 51 Fed. 309; Fitzgerald v. Railroad, 45 Fed. 813; National Water Works Co. v. Kansas City, 78- Fed. 428; Alder-son on Receivers, pp. 199 and 348; U. S. Trust Co. v. Railroad, 150 U. S. 287. (3) The defendant, Texarkana & Fort Smith Railway Company, and its officers, were advised and had knowledge of the negotiations and proceedings in its behalf and in behalf of its property, acquiesced therein throughout, and accepted the results of the services sued for and is therefore in law, upon the facts as alleged in the petition and shown in the testimony, estopped to repudiate or deny liability for such services. Reinhard on Agency, secs. 89 and 91; Clark & Skyles on Agency, secs. 57, 350 and 636 a. (4) The alleged satisfaction and payment of the services sued for by reason of the judgment recovered against the Kansas City, Pittsburg & Gulf Railroad Company was not pleaded or alleged in the answer, and if under any theory o.f the facts as shown in the record such a defense could have been proven, it is not and cannot be considered a defense in this action because it was not pleaded. Edwards v. Gibboney, 51 Mo. 129; Wilkerson v. Farnliam, 82 Mo. 672; Henderson v. Davis, 74 Mo. App. 1; State to nse v. Williams, 48 Mo. 210; Dwyer v. Rohan, 99' Mo. App. 1201. (5) The representation by plaintiffs of the defendant and the other companies during the negotiations from April 1 to April 28, 1899, was by and with the consent of all, and in the interest of all. In the legal proceedings in the receivership suit thereafter, the services were rendered by and with the consent of all, and to carry out a common and agreed purpose. There were no adverse or hostile interests, the receivership suit being a step and incident in connection with the performance of a contract between the parties interested to accomplish the reorganization and consolidation of the railroads. The plaintiffs, in fact, did not appear for adverse interests in any of the proceedings or suits shown in the record. While this defense was not pleaded, there is neither fact nor law to support it. The law against dual representation applies to adverse parties and does not apply in this case. Weeks on Attorneys at Law, see. 271. (6) The judgment of the court below was supposed by uncontradicted proof and is in amount for the reasonable value of the services. The presentation of claims in the receivership suit does not estop plaintiffs from claiming for additional services and for the true amount. There being an implied contract and defend-. ant having received and accepted the services and their benéfits, the cases cited by appellant do not apply. 3 Am. and Eng. Ency. Law (2 Ed.), 424 and 437; Gorman v. Banigan (R. I.), 46 Atl. 38; Forsyth v. Doolittle, 120 U. S. 73; Graves v. Sanders, 125 Fed. 690; Weeks on Attorneys at Law, sec. 337.
   VALLIANT, J.

Plaintiffs, who are attorneys-at. law, sue to recover the value of legal services alleged to have bees rendered by them to defendant in certain negotiations and suits which resulted in a foreclosure of the mortgages and a reorganization of a system of railroads of which the defendant was one of the constituent parts.

The Kansas City, Pittsburg and Gulf Railroad Company was a Missouri corporation, operating a system of railroads extending from Kansas City, Missouri, to Port Arthur, Texas. One of the railroads in the system was that of the defendant, the Texarkana and Fort Smith Railway Company, a Texas corporation, and another that of the Kansas City, Shreveport and Gulf Railway Company, a Louisiana corporation. The Kansas City, Pittsburg and Gulf Railroad Company, the Missouri corporation, which hereinafter we will call the Gulf Company, owned or controlled all of the stock and the bonds issued by the other two companies and operated the whole line. On the one side it is said that the Gulf Company, the Missouri corporation, was really the parent and owner of the whole system extending from Kansas City to the Gulf, that the Texas and Louisiana corporations were but subsidiary organizations, that the only reason for the organization of a separate corporation in Texas was that by the laws of that State a domestic corporation only could own or operate a railroad therein, and the .reason for the Louisiana corporation was that only a Louisiana corporation could exercise the right of eminent domain in that State. The plaintiffs, on the other hand, deny that the Texas corporation was a mere subsidiary organization and assert that it was formed before the Missouri corporation was, but at all events it was, under the laws of Texas, required to have and did have its offices and officers in that State, that it owned 200 miles of railroad, and had issued its mortgage bonds to the amount of $5,591,000. But plaintiffs admit that the Gulf Company owned all of the stock and bonds of the Texas Company and had hypothecated them as collateral security for its own mortgage bonds and other indebtedness, and it operated the whole system as one road.

For several years before the litigation out of which this suit arises the plaintiffs had been the attorneys for the Gulf Company, and under that employment had rendered services to the defendant the Texas Company, and also to the Louisiana Company; they always rendered their bills to the Gulf Company and the latter-paid them, and that course of business, continued down to the time when, under the foreclosure litigation out of which this suit grew, receivers for the several roads were appointed.

About the first of April, 1899, the Gulf Company made default in payment of its mortgage debt, and a suit was filed against it in the State circuit court in Jackson county, in the name of Grannis and others as plaintiffs, under which receivers were appointed, who took charge of the railroad in Missouri. The plaintiffs in the suit at bar were the attorneys who filed the suit for Grannis, but it was done at- the instance of the Gulf Company, and to forestall an anticipated suit from a more hostile source. That suit was removed into the Federal court on the petition of one of the defendants, and, pending a motion to remand it to the State court, the State Trust Company, a foreign corporation, one of the trustees in the deed of trust that was being foreclosed, filed a like suit in the Federal court at Kansas City, praying a receiver, foreclosure, etc.

The only real controversy seems to have been in regard to who should dominate the litigation. That point was finally settled by agreement between the plaintiffs, as attorneys in the Grannis suit, representing the Gulf Company on the one side, and the attorneys who had filed the other foreclosure suit in the Federal court and who represented the creditor interest, on the other side; the substantial point in the agreement being that one set of receivers should be appointed by the Federal court who should have charge of the whole system of railroads from Kansas City to the Gulf, and that these plaintiffs and the attorneys who had commenced the suit in the Federal court were to be employed as the attorneys for the receivers along the whole line. After that agreement was reached an amended bill was filed in the Federal court in which this defendant, the Texas Company, and the Louisiana Company, were made parties defendant and their appearance was entered. Thereafter everything was harmonious and the cause proceeded to a final decree of foreclosure, a sale followed, and the property of the railroad companies passed into the ownership and possession of a corporation formed for the purpose by agreement of the parties called the Kansas City Southern Railway Company, and the receivership was wound up. Before the final decree the whole matter had been settled by agreement and the final proceedings in court were in accordance with the agreement; the agreement also covered other valuable railroad properties theretofore controlled by the Gulf Company, consisting of terminal railroads at Kansas City and at the Gulf end of the line.

In addition to the suits above mentioned there were other suits, in Texas, in Louisiana and Kansas, which are mentioned in the evidence, but those served their purpose, which seems to have been a race of diligence for the control of the litigation through receiverships and were dismissed when an agreement was reached.

The suit in the Federal court in Kansas City was begun in April, 1899, and ended (except as it may be yet retained for settlement of accounts and other details of administration) in March, 1900, and it is during that period that the plaintiffs in the suit at bar claim to have rendered the services to the defendant, the Texarkana and Fort Smith Railway Company, for which this suit is brought.

During that period these plaintiffs received, as attorneys for the receivers, sums aggregating $21,833.33, and the attorneys who represented the creditor interest and who under the agreement first above mentioned were also attorneys for the receivers, received a like amount. These plaintiffs also received other amounts on account of services rendered in other suits that were more or less connected with the main litigation above mentioned, but neither the amounts so received nor those for services, as attorneys for the receivers covered the services sued for in this case.

March 30, 1900, these plaintiffs filed a petition in the foreclosure suit in the Federal court, asking to be allowed counsel fees for services to the Gulf Company in the sum of $3,000, to the Texarkana & Fort Smith Company -(this defendant) in the sum of $1,000, and a like sum, $1,000, for services to the Louisiana Company; afterwards that petition was amended increasing the claims to $10,000, against each company, and suits in the circuit court of Jackson county were filed against those three companies respectively each for $10,000. That petition is still pending in the unfinished business of the foreclosure suit in the Federal court. Plaintiffs in their testimony explained that the former claim was for services rendered between the 1st and the 28th of April, 1899, and the latter embraced services rendered during the whole litigation down to the final decree and the master’s report. According to the plaintiffs’ testimony the nature of the services rendered was in watching and guarding the interest of the three railroad companies respectively in the negotiations leading up to the reorganization agreement, and in seeing, during the litigation and its culmination, that the companies they represented got what was coming to them in the way of their positions in the reorganized company, and that those services were well worth $10,000' for each company, especially so as measured by the standard of value put upon the services of the attorneys who represented the creditor interest whom they said were allowed by the court and paid very much larger sums.

The testimony on the part of the defendant tended to prove that the plaintiffs had very little to do with the negotiations leading up to the re-organization agreement or with the litigation and that what they did was of no value to the railroad companies whom they claim to have represented.

The cause was tried by the court — jury waived —and resulted in a judgment for the plaintiffs for $10,-000, from which defendant appeals.

This is the second one of the three suits above mentioned brought by these plaintiffs against the railroad companies respectively to recover for their legal services, that has reached this court. The first one that came here was the one against the Gulf Company, and in that we affirmed a judgment for the plaintiffs for $10,000. [Trimble v. Railroad, 180 Mo. 574.] This case rests on substantially the same state of facts that were in that case, with one point of difference only, and the decision in that must be decisive of this unless the point of difference referred to leads to a different result. The' point of difference is this: the former suit was against the Gulf Company which, as we have seen, practically owned the two other companies and operated them. The evidence showed that the plaintiffs were employed by the Gulf Company while it was operating the whole system, that they rendered services to the two other corporations for several years prior to those foreclosure suits and always rendered their bills to the Gulf Company who paid them. As a practical business matter there was nothing in that practice that would estop the plaintiffs from asserting a claim for such services against the Texas Company by its own name if they had seen fit to do so. Bnt knowing as the plaintiffs did that the Gulf Company held the purse of the Texas Company and directed its affairs, it was natural that they should apply to the Gulf Company for their pay, there was no other source from which payment could he expected. But when the receivers were appointed' the Gulf Company was no longer in receipt of the earnings of the Texas Company, and, though still owning its stocks and bonds, had nothing of its revenue from which’to pay its debts. When that change of conditions came about there was no reason why the plaintiffs in rendering services to the Texas -Company should be presumed to be doing so with the understanding that they were to look to the Gulf Company alone for payment.

The plaintiffs in the beginning were employed by the Gulf Company, they never had an express contract with the defendant company, under their employment by the Gulf Company they rendered services to all the companies under its control, the defendant included, and, without any express change in the relation, the plaintiffs, according to their evidence, continued to serve the companies- until the coming in and confirmation of the master’s report in the Federal court. Defendant insists that under those conditions no implied contract arises. The argument is that the defendant company with all its stock and bonds in the hands of the Gulf Company, and all its property inevitably destined to be swept away in the foreclosure suit, was helpless, it was incapable of making any contract or of consenting to anything that might be done in its behalf. That is defendant’s main point of resistance in this case. But in fact the defendant had its offices and officers, as the -law of Texas required, in that State. We may infer from the conditions that the Gulf Company as owner or controller of the stock elected the officers and directors and conceded to them control only to the extent that the law of Texas required, still the power to make contracts for the corporation in contemplation of law existed in the officers and directors, and though their acts may have been influenced or dictated by those who held the stocks and bonds of the corporation, still they were the acts of the corporation. Officers and directors of a corporation though laboring under an influence can, by their-conduct, give rise as well to an implied contract as they can to a contract by express agreement. If we should say that there can be no implied contract arising out of their conduct because they were not free to act, but yielded to pressure, we would also have to say that their express contract was for the same reason without legal effect. The stockholders of a corporation direct its business as they think is best for their own interest, and if it so happened that the persons who own the stock in one company aré also the owners of the stock in another company and conceive it to be to their interest to make the one corporation subservient to the other, they have a right to do so, because they are dealing with their own. What is here said is of course subject to this qualification, that is, that the conduct of the stockholders rendering one corporation subservient to another is valid only when it is not in violation of any law forbidding it; but there is no such question here, we are now dealing with a subject in which an owner of two properties sees fit to use one to the advancement of the other or both to a mutual advancement. In such case neither corporation loses its corporate entity. Helpless the Texas corporation may have been when all its stocks and bonds were given up as collaterals to the mortgage bonds of the Gulf Company 'and when its physical property was taken out of the hands of its officers by the receivers, but in that condition it was ’ practically not worse off than the Gulf Company itself when it could not pay its debts and the receivers had taken possession of everything of valne that belonged to it. Even now after the floors of its treasury house have been swept and garnished by a master in chancery, the defendant corporation shows that it is still alive and with vigor enough to defend this suit, and interest sufficient to choose its counsel from among the ablest lawyers in the State. It may be that after the foreclosure suit was begun little could be done in behalf of this defendant, that the end was inevitable, still the corporation existed, its officers were yet alive and they had the right to strive for the best terms they could obtain. If services in that effort were made by these plaintiffs in behalf of the defendant corporation with the knowledge of its officers and under such circumstances as justify an inference that they approved and encouraged what was being done, we are not prepared to say that because of the desperate straits- into which the corporation had fallen a contract for the payment of the value of the services rendered could not be implied. Whether in point of fact any real benefit was derived from the services rendered, the testimony for the plaintiffs and that for the defendant are widely apart. It is a question of fact and the trier of the facts has made the finding and with that we must-be content.

It was shown in the evidence that in some of the suits mentioned the plaintiffs occupied, at least nominally, positions antagonistic to the interests of their clients, but that was never really so, in all that they ever did they were loyal to the interests of their clients.

The criticisms of the rulings of the court in giving, modifying and refusing instructions are based on the propositions above discussed and what we have said of them applies to the rulings on the instructions.

It is argued that the judgment in th.e suit against the Gulf Company is a satisfaction of this claim; but in the first place there is no such defense set up in the answer, nor is there any proof or even suggestion of satisfaction of that judgment, while the foreclosure decree and proceeding thereunder indicate that there is as little left in the treasury of the Gulf Company as there is in that of the defendant; and in the second place, the plaintiffs’ petition in the Federal court shows that their claim against one company is independent of that against the other, and the three suits all pending at the same time in the circuit court of Jackson county negative the idea that the claim against one is merged in that against the other.

We find no error in a matter of law in the record. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    CORDELIA E. HINZEMAN, now MILLS, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division One,
    October 19, 1906.
    1. NEGLIGENCE: Man on Railroad Track: Warning. An engineer who could have seen a section foreman on the track and apparently unconscious of his danger, for 300 feet before the engine struck him, should have given timely alarm signals, and failure to do so was negligence for which the company must respond in damages.
    2. -; -: -: Failure to Sound Alarm Signal. The fact that the engine bell was rung for a long distance before deceased was struck, will not excuse defendant’s failure to warn by an alarm whistle a man on the track apparently oblivious to danger. Under such circumstances the ringing of the bell alone is not ordinary care, and it is proper for the court to tell the jury that the failure to sound the alarm whistle is negligence.
    3. -: First Remark on Recovering Consciousness: Res Gestae. The first remark of a section foreman on recovering consciousness, after being struck by a train while he was at work on the track, was the question, “What kit me?” Held, that it was competent as res gestae, and potent as showing that he had no knowledge or notice of the oncoming train which struck him while he was at work on the track.
    4. -: Insufficient Evidence: Former Adjudication. Where the court on the former appeal held there was sufficient evidence that deceased’s death was due to defendant’s negligence, to take the case to the jury, that holding should be adhered to on a subsequent appeal if the case comes up on substantially the same facts and the same issues in the same pleadings.
    Appeal from Henry Circuit Court. — Hon. G. A. Den-ton, Judge.
    Affirmed.

      B. T. Bailey with Martin L. Clardy for appellant.
    (l) The deceased, as shown by the undisputed facts, was not only guilty of negligence directly contributing to his own death, hut was guilty of inexcusable recklessness. He had been an old, experienced section man. He had a time card, which informed him that the Joplin passenger train was due to leave the Union Station at 8:10 a. m. and was due to arrive at Southwest Junction at 8:25. This train passr ed by every morning at the- same hour. It was on time the morning of accident. Deceased had a watch and was required to keep correct time. It was his duty to keep himself informed as to the running of trains on schedule time, and to obstruct said trains as little as possible. The train in controversy was compelled to, and did, whistle for the semaphore about one quarter of a mile west of where deceased was killed. The bell was usually rung from Union Station to Southwest Junction. 'The undisputed facts disclose that on the morning of accident the hell was ringing continuously from the time the train passed over Milwaukee crossing, until deceased was killed. The track from Milwaukee crossing up to scene of accident was practically straight and comparatively level. It was a clear day and the two tracks where deceased had been walking were nine feet apart. If the testimony of Wilson be true, that deceased was standing with his face toward the track, and the train coming at right angles to him, with his body outside of the rails, then how could it be possible for him to have been injured under such conditions, if he had had even the slightest regard for his own safety? The court below should have directed a verdict in favor of defendant upon the admitted facts in regard to deceased’s contributory negligence. Schmidt v. Railroad, 90' S. W. 136; Hinzeman v. Railroad, 182 Mo. 620; Ríes v. Railroad, 179' Mo. 7; Evans v. Railroad, 178 Mo. 508; Koons v. Railroad, 178 Mo. 591; Moore v. Railroad, 176 Mo. 528; Zumault v. Railroad, 175 Mo. 288; Yan Bach v. Railroad, 171 Mo. 338; Roberts v. Tel. Co., 166 Mo. 370; Hook v. Railroad, 162 Mo. 569; Sharp v. Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Davies v. Railroad, 159 Mo. 9; Holwerson v. Railroad, 157 Mo. 223; Peterson v. Railroad, 156 Mo. 555; Coatney v. Railroad, 151 Mo. 48; Culbertson v. Railroad, 140 Mo. 64; Yogg v. Railroad, 138 Mo. 180; Sinclair v. Railroad, 133 Mo. 245; Watson v. Railroad, 133 Mo. 246; Lane v. Railroad, 132 Mo. 4; Loring v. Railroad, 128 Mo. 360; Maxey v. Railroad, 113 Mo. 1; Ring v. Railroad, 112 Mo. 229; Boyd v. Railroad, 105 Mo. 371; Barker v. Railroad, 98 Mo. 53; Powell v. Railroad, 76 Mo. 80; Purl v. Railroad, 72 Mo. 168. (2) The undisputed facts fail to show that defendant’s servants were guilty of wanton, willful or reckless' conduct, and by reason thereof the cause should be reversed, without remanding. Schmidt v. Railroad, 90 S. W. 136; Markowitz v. Railroad, 186 Mo. 359; Evans v. Railroad, 178 Mo. 508; Koons v. Railroad, 178 Mo. 591; Moore v. Railroad, 176 Mo. 528; Carrier v. Railroad, 175 Mo. 470; Guyer v. Railroad, 174 Mo. .344; Yan Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214; Davies v. Railroad, 159 Mo. 9; Holwerson v. Railroad, 157 Mo. 223; Coatney v. Railroad, 151 Mo. 48. It was his duty to know of its approach, and whatever a person can learn in the exercise of ordinary care, it is in law the same as though they had actual knowledge of the facts. Taaffe v. Kelly, 1101 Mo. 137; Jackson v. Railroad, 104 Mo. 459; Mason v. Black, 87 Mo. 342; Johnson v. Ashland W. Co., 77 Wis. 54; Muldowney v. Railroad, 39 Iowa 620; Ring v. Railroad, 112 Mo. 220; Loring v. Railroad, 128 Mo. 359; Sharp v. Railroad, 161 Mo. 235. (3) Plaintiff’s instruction 1 is radically wrong in several respects: (a) It authorized the jury to return a verdict for the plaintiff if the whistle was not sounded before deceased was killed, although the latter knew the train was coming before he was struck. The only purpose in sounding the whistle is to inform the person on or close to the track that the train is approaching. The instruction authorized a recovery if the whistle was not sounded, although deceased may have known of its approach, and that, too, regardless of his negligence and recklessness in failing to remove to a place of safety. This was clearly erroneous. Hutchinson v. Railroad, 161 Mo. 253; Murray v. Railroad, 176 Mo. 188. (b) The petition herein is not based upon any statute, but is purely a common law action. What right had the court to arbitrarily tell the jury — as in this case — that the whistle should have been sounded although the bell was being rung at the time; and although deceased knew the train was coming, in time to have moved into a place of safety? What statute required even the bell to be rung, much less a whistle sounded? It is our understanding of the law that an instruction based upon common law negligence could only go to the extent of informing the jury that it was defendant’s duty in operating its train at time and place of accident to exercise ordinary care, or such care as an ordinarily careful and prudent railroad man would have exercised under the same circumstances. Yandewater v. Railroad, 135 N. Y. 583; Austin v. Railroad, 14 N. Y. Supp. 924; Railroad v. Greer, 69 S. W. 422; Railroad v. Pugh, 32 S. W. 312; Swift v. Railroad, 123 N. Y. 649; Byrne v. Railroad, 104 N. Y. 368; Railroad v. Talbot, 67 N W. 601; Rowen v. Railroad, 21 Atl. 1074; Artz v. Railroad, 34 la. 153; Brown v. Railroad, 22 Minn. 171; Stoneman v. Railroad, 58 Mo. 505; Holman v. Railroad, 62 Mo. 563; Maxey v. Railroad, 113 Mo. . 1; Barron v. L. & Zinc Co., 172 Mo. 234; Warner v. Railroad, 178 Mo. 133; Ayers v. Railroad, 88 S. W. 610; Theobald v. Railroad, 90 S. W. 366. Even under the statute, at public crossings the defendant is not required to both blow the whistle and ring the bell. Sec. 1102, R. S. 1899. The uncontradicted evidence discloses that the bell was rung from Milwaukee crossing continuous^ up to the time of accident.

      O. L. Howls and Charles E. Morrow for respondent.
    (1) The failure to exercise ordinary care is actionable negligence. The act need not be either willful, wanton or reckless. Hinzeman v. Railroad, 182 Mo. 611. This same proposition on the same record was decided against appellant in this case when it was here before, and no reason appears why the rule of law then announced should be discarded now. It is the law of this case. It is res adjudicata. Overall v. Ellis, 38 Mo. 209; Chapman v. Railroad, 146 Mo. 481; Baker v. Railroad, 147 Mo. 140; Bealey v. Smith, 158 Mo. 515; Carey v. West, 165 Mo. 452; Butler County v. Boatmen’s Bank, 165 Mo. 456; Taussig v. Railroad, 186 Mo. 269. (2) The demurrer to the evidence was properly overruled. The plaintiff made a case. This court on the same record so held on a former appeal. Hinzeman v. Railroad, 182 Mo. 611. • This is also res adjudicata. (3) Instruction 1 given for plaintiff properly declared the law. It was taken from the books and has been often approved. Reyburn v. Railroad, 187 Mo. 565; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Baird v. Railroad, 146 Mo. 265; Reardon v. Railroad, 114 Mo. 384; Chamberlain v. Railroad, 133 Mo. 587; Guenther v. Railroad, 108 Mo. 18; Kellny v. Railroad, 101 Mo. 67. The law of this instruction was passed upon by the court when this case was here before, and is the law of this case. Hinzeman v. Railroad, 182 Mo. 611. The contributory negligence of the deceased is no defense to the humanitarian rule or last chance doctrine. The doctrine itself presupposes the negligence of the deceased. Klockenbrink v. Railroad, 172 Mo. 678; Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Jett v. Railroad, 178 Mo. 673; Reyburn v. Railroad, 187 Mo. 565'. This question was also decided by this court in this case, and is res adjudicata. Hinzeman v. Railroad, 182 Mo. 611. Of course, there can be no such thing as contributory negligence to the last negligence, which is the proximate cause of the injury. Defendant adopted this theory at the trial and cannot complain. (4) The' court did not err in admitting the statement of the deceased, “What hit me?” Hinzeman v. Railroad, 182 Mo. 621; Leahy v. Railroad, 97 Mo>. 165; State v. Hudspeth, 150 Mo. 27; State v. Lockett, 168 Mo. 486; State v. Hudspeth, 159 Mo. 178; Chapman v. Railroad, 146 Mo. 481; Railroad v. Burk, 116 Ind. 566; Redmond v. Railroad, 185 Mo. 11; Adams v. Railroad, 74 Mo. 556.
   LAMM, J.

This is an action to recover $5,000 for the death of plaintiff’s husband, Joseph Hinzeman, on the 2nd day of October, 1900, he being defendant’s section foreman, having in charge a section near Kansas City, and killed while in the line of duty. He and Ms gang of men were at work reconstructing defend- 1 ant’s roadbed, i. e., removing bad ties and replacing them with sound ones. Hinzeman, it seems, assumed the service of going ahead of his men and marking defective ties with a pick, and was engaged in marking a tie when he was struck and killed by an east-bound locomotive pulling a passenger train and running on schedule time at, say, twenty-five miles an hour in daylight on an unobstructed level track and clear day. He had good eyes, good ears and was a trackman of experience. His widow, Cordelia Ei. Hinzeman, brought suit, and was cast on trial to a jury.

The cause was here once before on defendant’s appeal from an order granting plaintiff a new trial. At that trial, the following instruction was given for defendant :

“Unless the jury believe from the greater weight of the evidence that the defendant’s engineer in charge of the locomotive which struck the deceased, willfully, wantonly or recklessly ran deceased down and killed him, your verdict must be for the defendant.”

The trial court, having reconsidered its action in giving that instruction, sustained plaintiff’s motion for a new trial; and here, on review, that ruling was approved — the case being reported in full, Hinzeman v. Railroad, 182 Mo. 611.

The cause was originally tried in the circuit court of Johnson county, but, when sent below, was removed by change of venue to the circuit court of Henry county and re-tried on January 23, 1905, resulting in a verdict for plaintiff in the sum of $5,000 — defendant again appealing.

The petition was amended at the second trial to show that plaintiff had intermarried with one Mills. As we see it, the former answer was refiled and the former testimony, as preserved in the bill of exceptions, was read to the second jury, supplemented by oral testimony tending to impeach the credibility, and disturb the weight due to the testimony, of plaintiff’s witness, Wilson. This case, therefore, having been tried the second time on the same paper issues and substantially on the same evidence, supplemented by oral proof tending to break down plaintiff’s principal witness, it would do no good to restate the facts, provided we remain satisfied they were fully and fairly stated before. We have, accordingly, examined the original opinion and the record, then and now before us, and, as a result, readopt the statement of the case there made, in extenso, by Valliant, J. That opinion must, therefore, be read with this.

Some of the evidence tended, to show Hinzeman had been marking ties as he went east on the track — the train approaching him from behind. Some of it tended to show he was walking east between two railroad tracks with a pick on his shoulder and suddenly veered and approached the rail, bent over it and delivered a blow with his pick upon a tie so immediately before the coming engine that, though seen in peril by the engineer and fireman, it was too late to save his life. All the evidence indicates he was seen by the engineer and fireman for several hundred feet. Defendant’s evidence indicates that, when so seen, he was out of danger and turned from the course he was holding and placed himself in danger when his injury could not be avoided. Plaintiff’s evidence was somewhat the other way. In this condition of things the former opinion laid some stress upon the pick marks on ties west of where Hinzman was killed as indicating his presence on the.track and in danger for some distance, and it is now warmly insisted that these pick marks had been placed on these ties the day before, and that there was no substantial evidence of the marking of these ties by Hinzeman on the day he was killed and, therefore, says appellants’ learned counsel, the opinion is in fault in its statement of facts and, hence, the conclusion drawn was erroneous. But we do not find it so. To the contrary, there was evidence sustaining that finding of facts by plain inference. And not only so, but if Wilson’s evidence be true, then Hinzeman was bent over the rail and in danger while the train ran 300 feet. So that, it makes little difference whether he had been on the track marking ties before he marked the fatal one, or not. And it makes little difference whether he had been going outside the track, and from time to time bent over the rail engaged in his labor of marking unsound ties for some distance west on the day he was -killed. Because if he approached the rail for the first time at the moment he was killed and remained in danger there in the performance of his duty, as Wilson says, while the train ran 300 feet, the same conclusion must be arrived at, to-wit, that the engineer who saw him in peril and apparently unconscious of it, should have given timely alarm signals.

Respondent asked but one principal instruction and that was based on the hypothesis that the duty of defendant was to warn him by an alarm whistle. The significance of this will be seen when it is stated there was evidence tending to show the bell had been ringing for a long distance. Appellant now contends it was error for the court to predicate negligence on a failure to blow a whistle under the facts and circumstances surrounding the case. In other words, that the ringing of the bell, if one was rung, came up to high watermark as ordinary care. Of this contention, it may be said that the same instruction was here on the former appeal and came within the reasoning then employed. While it is not set out in full in the former opinion, yet, in discussing one of defendant’s instructions, we said this: “That instruction is also erroneous in this, it seems to limit the duty of the defendant in the emergency named to stopping the train,, and says that if when the peril was discovered it was then too late to stop the train the defendant is not liable. That leaves ont of view the duty of sounding the whistle, which under the plain evidence was an obvious duty.” So that, the duty of defendant to sound the whistle, under the facts in judgment, has heretofore been adjudicated. Why should that not be an indicia of ordinary care? The whistle was there, in going order, and could be blown instantly. The blowing of a locomotive whistle is the ordinary and usual means of giving a sharp alarm, the steam was there to blow it, the lever was there to operate it, and the man was there to pull the lever and open the throttle. Is it an unreasonable and unfair requirement, then, as matter of law, if it be held that the whistle should he used if possible, when life is at stake? We think not. The monotonous stroke of a bell may be one thing; the incisive, ear-splitting scream of a whistle, a signal known to man and. beast as performing' the office of an “alarm signal,” is another. Under given circumstances, a bell might suffice —under other circumstances a whistle is ordinary care. [Chamberlain v. Railroad, 133 Mo. l. c. 604; Eppstein v. Railroad, 197 Mo. 720.] Furthermore, defendant asked no instruction based on the ringing of the bell and may not complain of mere non-direction. In Chamberlain v. Railroad, supra, the court approved of an instruction which said, in effect, that the stopping of a train was but ordinary care under given circumstances. If the locomotive bell be ringing and one is in danger, plainly oblivious to that danger (as Hinzeman was), and the inefficiency of the stroke of the bell to alarm him is apparent (as here), why may not the court tell the jury as a matter of law that under such circumstances a failure to use the whistle was negligence?

The learned counsel for appellant doubt the soundness of the former opinion in so far as it laid stress on the first questioning remark of Hinzeman on returning to consciousness after he was struck, to-wit, “What hit me?” The office given that remark hy this court was that it was competent and potent as tending to show Hinzeman had no knowledge or notice of the oncoming train. We remain satisfied with the significance we attached to that remark. It was made on the spot and in the presence of the witnesses to the transaction. His mind apparently took up> the thread of his life precisely at the point it was broken when struck by the locomotive and the first instinctive and spontaneous inquiry was, “What hit me?” That meant he did not know. The exclamation was part of the res gestae and, therefore, was properly admitted and is lodged in the case for what it is worth.

In the former case it was persistently urged over and over again, with a wealth of argumentation and citation of authority (contended to be in point), that there was no case to go to the jury. We said then there was a case to go to the jury. Having said so once, should we not say so twice? Having sent this case down to he retried on that theory, it would be palpably unjust to plaintiff to speak with two voices and now say to her, you have no case — unless, indeed, we are constrained to that course from a sense of judicial propriety arising from a re-examination of the record and a doubt of our former comprehension of the facts and application of legal principles. With high confidence it is asserted that we should change our judgment. Accordingly, we have gone over this record to see upon what the confidence of learned counsel is based and we find nothing to disturb our original conclusion. Having been once here on substantially the same facts and the same issues in the same pleadings, the law then declared should be considered (and remain) the law of this case under the doctrine of res adjudicata.

The judgment is, accordingly, affirmed.

All concur, except Graves, J., who had been of counsel below.


author: GANTT, J.

text:
    THE STATE ex rel. SALE, Judge, v. McELHINNEY, Judge of Circuit Court of Thirteenth Judicial Circuit, et al.
    In Banc,
    October 23, 1906.
    1. ELECTION CONTEST: Notice: In Circuit Court. A notice in an election contest that contestant’s petition will be filed in the circuit court is a sufficient notice of the place of filing. The expression “will be filed in the circuit court” is equivalent to “will be filed in the office of the clerk of the circuit court.”
    2. --: -: With Nearer Judge: Surplusage. The mere fact that the notice stated that the petition would be filed with a certain judge “and with such other qualified circuit judge if any there be whose residence is nearer than” that of the judge named, did not render the notice that it would be filed in the circuit court bad. Such additional matter is to be treated as unnecessary surplusage.
    3. -: -: Designation of Time. A notice of contest that the contestant will “ten days after the service of this notice upon you file in the circuit court the petition,” etc., sufficiently designates the time when the petition will be filed. The law maxim that that is certain which can be rendered certain is to be applied to such a notice.
    4. -: -: -: Forty Days: Saturday and Sunday. The election was on November 8th, and the notice stated that the petition would be filed “ten days after the service of this notice upon you, and within forty days after the date of the election above mentioned.” The forty days ended on Sunday, December 18th. Held, that the petition was due on Saturday, December 17th, and that being ten days after the service of the notice upon contestee, the notice sufficiently designated the time when the petition would be filed.

      5. -: -: Insufficiency Waived by Appearance. The contestee waived any insufficiency in the notice or any failure to give the notice required by the statute (sec. 7057, R. S. 1899), by appearing and filing answer to the merits.
    6. -: Necessary Parties: Higher Vote for Another Candidate. A contestant for an office is not precluded from' maintaining “ his contest simply because another candidate than contestant and contestee received more votes, according to the election returns, than contestant did. If such third person received no certificate of election, and is setting up no claim to the office, it is impossible for contestant to contest with him for the position. Such third person is not a necessary party to a determination of the title to the office. But though such third person is not a party and cannot under the statute now contest for the office, it is nevertheless necessary for contestant to establish that he received the highest vote of any candidate for the office.
    7. ,-: -: Non-Joinder: Prohibition. Prohibition will not lie on the ground that persons necessary to a determination of an election contest have not been joined as parties.
    8. -: Admissions: Estoppel. Where five vacancies in the office of circuit judge in a judicial circuit were to be filled at one election, contestant by admitting in his petition that four persons received more votes than he did is estopped from making any inquiry as to their title to the office, and is restricted in his contest to the contestee who was awarded the only remaining place.
    Prohibition.
    Peremptory writ deniedI

      David Goldsmith, Jos. W. Jamison and W. Frank Garter for relator.
    (1) Under tbe decisions of tbis court in State ex rel. v. Spencer, 164 Mo. 23, and State ex rel. v. Spencer, 166 Mo. 279, it is settled that it was incumbent upon tbe contestant to give tbe notice required by section 7057 of tbe Revised Statutes with respect to tbe contest proceeding, and that tbe failure of tbe contestant to give such notice constitutes a jurisdictional defect warranting tbe issue of tbe writ of prohibition sued for in this action. The contestant undertook to give this notice with respect to the filing of the contest, hut the notice which he gave fails to comply with essential requirements. The statute required the notice of contest to he filed in the office of the clerk of the circuit court . of the city of St. Louis (R. S. 1899, sec. 7062); the notice of contest, however, did not state that the petition would be filed in that office. Indeed, it was indefinite both as to the specification of the place and time of the filing of the petition, and too uncertain in these respects to answer the purpose of any notice. As to the time of filing, it stated that the petition would be filed ten days after the date of its service and within forty days after the date of the election; and as to the placé of filing, it stated that it would be filed “in the circuit court of the city of St. Louis, and also with the Honorable J. "W. McElhinney, judge of the circuit court of the Thirteenth Judicial Circuit for the State of Missouri . . . and with such other qualified circuit judge, if any there be, whose residence is nearer than that, of Judge McElhinney.” Section 7057 requires the notice to state the time and place of presentation; and it follows that the time and place must be definitely specified. It is doubtful whether a notice stating that the petition would be filed ten days after the service of the notice, and within forty days after the election, specifies time with sufficient clearness, even when only one day answers both requirements, that is, is ten days after the service of the notice within forty days after the election? It seems that the’ party notified should not be called upon to make calculations of this kind; and, therefore, that while such a notice would be definite as to time in the sense that that is certain which can be made certain, still it does not suffice for the purpose of practical notification. However, in this case, the time was uncertain because there were two days which answered the specification, that is, which were ten days after the service of the notice and within forty days after the election, namely, December 17th and December 18th, 1904. It is true that December 18th was a Sunday, but it was not beyond the realm of possibility for the contestant to file his petition on a Sunday. The notice states that the petition would be filed in the circuit court of the city of St. Louis, with Judge McElhinney and also with any other judge whose residence might be nearer than that of Judge McElhinney. Certainly the petition could have been filed with either Judge McElhinney or any such other judge on a Sunday, and, if the designation of the circuit court as the place of filing is to be treated as meaning that the petition was to be filed in the office of the clerk, then, since the petition could have been filed in the office of the clerk on a Sunday, it was also possible to comply with the notice in this respect on that day. Indeed, even if the filing was to be made strictly in the circuit court of the city of St. Louis, that is, while the court, or one of its subdivisions, was in session, it could not at the date of the service of the notice have been said to be impossible for the contestant to file his petition in court on December 18th, since the circuit court is composed both of civil and criminal divisions, and either division may, as a matter of possibility, be in session on a Sunday. [R. S. 1899, sec. 1615.] What we have said seems to us to necessarily lead to the conclusion that the notice in question was uncertain and insufficient in its specification of the time of the filing of the petition; but it was also inadequate as to the place of the filing. The statute requires the petition to be filed in the office of the clerk of the circuit court. The notice stated that it would be filed in the circuit court with Judge Mc-Elhinney and also with any nearer judge, if there was one. None of these designations constitutes a designation of the proper place. The only one which will be claimed as such a designation is that which states that the petition would he filed in the circuit court. But a notice that a petition will he filed in court is not equivalent to a notice that it will he filed in the office of the clerk of the court, especially when there are, as there were in this case, eleven subdivisions of that court sitting in different parts of the city. National Docks, etc., Company v. United New Jersey, etc., Co., 52 N. J. Eq. 336. Moreover, the notice stated that the petition would be filed in the circuit court and with Judge McElhinney, and with any other judge, if there was one, whose residence was nearer. It thus specifies at least two different places for the filing of the petition, and in that respect was uncertain. The authorities with regard to service of notice for the taking of depositions are analogous. With respect thereto it has been held that a notice, which states that the depositions would be taken on two or more successive days, is deficient for uncertainty in point of time. Benton v. Craig, 2 Mo. 198; Collins v. Richart, 14 Bush. 621; Uhle v. Burnham, 44 Fed. 729; Carmalt v. Post, 8 Watts 406; and Humphries v. McCraw, 9 Ark. 91. Also that, when the statute requires the notice to state before whom the depositions are to be taken, a notice that they will be taken before one of two magistrates will not suffice. Clough v. Bowman, 15 N. JL 504. And that a notice for the taking of depositions “at the court house in the city of New Orleans, in the State of Louisiana,” does not adequately designate the place, when several courts are held in the building mentioned. Harris v. Hill, 7 Ark. 452. (2) The contestant cannot succeed in his present contest, because he cannot in this proceeding assail or question the vote in favor of Mr. Rule, nor the plurality of Mr. Rule’s vote over his own returned by the election commissioners. It is clear that the contestant cannot succeed in his election contest without establishing that this canvass was incorrect, both, in declaring the vote in favor of the contestee to have been greater than his own, and in declaring the vote in favor of Mr. Rule to have been greater than his own. The mere fact that Mr. Rule did not contest the election of the contestee does not entitle the contestant to the office, even if the contestant’s right is superior to that of the contestee. The contestant cannot succeed without proof that he was elected, for which it is essential that he should have, received the highest vote of any of the candidates other than the four whose election is conceded. Sheridan v. St. Louis,.183 Mo. 25. -But the contestant cannot, in his contest proceeding, establish by a recount that the Board of Election Commissioners erred in returning the vote in favor of Mr. Rule as greater than his own. To do this a recount of the votes cast for Mr. Rule would be necessary, since no comparison could be made without it; and such recount cannot be made for several reasons, namely: 1. Because it is not ordered by the writ, whose enforcement is sought to be prohibited; 2. because the petition of contest does not assail the vote in favor of Mr. Rule, or. its plurality over that in favor of the contestant; 3. Because Mr. Rule is not a party to the contest proceeding. The statute speaks throughout of the contestant and contestee as the parties to the proceeding. The term “contestee” should, however, be held to be used in a generic and not in a particular sense, and therefore to include all parties whose rights are assailed by the contestant. That construction is required for a beneficial and fair administration of the law. It would be permissible at common law. Escheman’s Appeal, 74 Pa. St. 47; Endlich on Interpretation of Statutes, sec. 38, p. 48; 2 Lewis’s Sutherland on Statutory Construction, sec. 374, p. 717. In our' State it is authorized by express statutory provision. R. S. 1899, sec. 4158; Cook v. Redman, -■45 Mo. App. 397.

      Thomas J. Roive and W. E. Fisse for respondents.
    (1) It is admitted that the petition was actually filed in the office of the clerk of the circuit court. It is also admitted that the contestee filed in the circuit court of the city of St. Louis an answer to the petition of the relator. It also clearly appears from the record in this case that no election contest proceeding between the parties is going on elsewhere than in the circuit court of the city of St. Louis. The expressions, filing in court, and filing with the clerk of the court, are identical in meaning. No paper can he filed in court ■ except it he delivered to the clerk of the court, and he by him received to be kept on file, and, conversely, every paper' filed with the clerk of a court is thereby filed in court. This is especially trae of filings in the circuit court of the city of St. Louis. Consideration of the provisions of the statute with respect to what it is that a contestant is required to file, and consideration, also, of the effect which is by the statute given to this act of filing, enforces the conclusion that the object of any filing is to give jurisdiction to the circuit court. What is it that a contestant is required to file? The statute answers, a petition setting forth the points on which he will contest the election, and the facts which he will prove in support of such points. Where else than in the office of the clerk of the circuit court could a petition he filed that was intended to invite the issuance of process out of the circuit court? What could have been the intention of the statute in requiring the filing of the petition in the office of the clerk of the circuit court, except it was to inaugurate a proceeding in the court? The case cited by relator in his brief, to-wit, National Docks, etc., Co. v. United New Jersey, etc., Co., 52 N. J. Eq. 366, is á case of entirely different nature than the one now at bar. There is a very great distinction between filing a paper to initiate a judicial proceeding, and the act of making a payment into court as satisfaction of some judgment of the court, or some award made by officers acting under its appointment and authority. Conduct like that brought before the court in the New Jersey case constitutes an action in satisfaction of a judgment, and it is, of course, a function of the court to determine whether the conduct amounts to satisfaction. There is nothing in the case of State ex rel. v. Spencer, 164 Mo. 48, which gives any countennance to the theory that in such a case as this the preliminary notice must state the intention to file the petition in the office of the clerk of the circuit court. (2) The filing of the petition in the present case has been followed by the filing of an answer by the contestee, to-wit, the relator herein. By such answer, which goes to the merits of the case, and is, in part, a cross-complaint against the contestant, the relator has submitted himself to the jurisdiction of the court, and has waived all objection to the insufficiency of the notice, either because of the alleged defect, or on account of any other alleged defect. 164 Mo. 48. (3) How can the relator, under any aspect of the remedy of prohibition, restrain the enforcement of the particular order in this case made for the recount of votes, upon the ground that some one was a candidate at the election whose vote the order does not require to be investigated, and whose interests cannot in any manner be affected by any proceeding had or taken in this case? The court has but lately again said that the remedy of prohibition is not a proper remedy to be applied for the settlement of pleadings, nor as a substitute for the ordinary methods of review by appeal or writ of error, and that it lies only to restrain excessive or wrongful exercise of jurisdiction. Inasmuch as it appears that the court here has jurisdiction of the subject-matter of this case, and inasmuch as it appears that there are before the court the necessary parties to fully determine the title to this office as between the contestant and the contestee, what does it matter that some other person, not interested, is not joined as a party to the proceeding? It is perfectly clear that inasmuch as Mr. Rule was never awarded the office of judge of the circuit court, it is impossible to contest with him for the possession of something which he does not hold or have. As between the parties to this contest, neither one is entitled to have the office in question unless it is made to appear that he was among the candidates who received the greatest number of votes of all those persons who stood for the office at the election. Suppose it should appear as a result of this contest proceeding and a recount of the ballots as herein directed, that this relator did not have as many votes as Mr. Rule, would it then follow that the relator was not entitled to the office which he holds ?
   GANTT, J.

This is an application for an original writ of prohibition to issue out of this court, prohibiting Judge McElhinney from taking further cognizance and jurisdiction of an election contest begun by William Zachritz, Esq., against Judge Moses N. Sale for the office of judge of the circuit of the Eighth Judicial Circuit, which comprises the city of St. Louis. A provisional writ was issued out of this court upon the application, made returnable on the 23d of January, 1906, and duly served upon Judge McElhinney and the members of the Board of Election Commissioners and the secretary of said board, and upon the contestant, William Zachritz. On the return day of the rule, returns were filed by the several defendants named in the writ, and thereupon the relator filed a reply, and fifty days was awarded to the respective counsel to file their briefs, and an agreed statement of facts was filed by the respective counsel in the cause. It is sufficient for the purpose of this opinion to state that the following facts are admitted: At the general election held on November 8, 19Ó4, five judges of the circuit court of the city of St. Lotus were elected, there being five Republican candidates and five Democratic candidates. It is conceded that four of the Republican candidates, to-wit, 'Judges Fisher, Kinsey, Reynolds and Withrow, were elected, and that they duly received certificates of election, and have entered upon the duties of their offices; also that in canvass of the votes by the Election Commissioners, Judge Moses N. Sale, who was a Democratic candidate, was found and declared to have received 54,489 votes, Mr. Virgil Rule, also one of the Democratic candidates, 53,986 votes, Mr. William Zachritz, a Republican candidate, 53,123 votes, and the remaining three Democratic candidates, to-wit, William Christy Bryan, 53,106 votes, James R. Kinealy, 53,056, and John A. Blevins, 53,027 votes. On December 17, 1904, Mr. William Zachritz filed in the office of the circuit clerk of the city of St. Louis, a petition of contest; and subsequently, on the — day of December, 1905, and at the December term, 1905, of the said circuit court, an order was made for a recount of votes for said office of judge of the circuit court. The present proceeding is one for a writ of prohibition to prevent the enforcement of that order. While the petition for prohibition states many grounds as inducements to the making of a judgment in prohibiting, the brief and argument submitted by the relator, Judge Sale, in this cause, is based upon two propositions only, namely: first, that the notice given by the contestant, Mr. Zachritz, of his intention to file the contest proceeding, was insufficient to give the circuit court and Judge Mc-Elhinney jurisdiction to hear and determine said contest; and, secondly, that the petition of Mr. Zachritz was wholly insufficient in that he failed to join as a party defendant with said contestee, Virgil Rule, who was a candidate for the office of circuit judge at the election of November 8, 1904, and who, according to the official return of that election, received a larger vote than the contestant, although he fell short of receiving such a vote as entitled him to receive a certificate of election.

I. On December 7,1904, Mr. Zachritz delivered to the relator, Judge Sale, the following notice of contest:

“St. Louis, Mo., December 7, 1904.
“Hon. Moses N. Sale: You are hereby notified that it is my intention to contest your election to the office of judge of the circuit court of the Eighth Judicial Circuit of the State of Missouri for the term of six years, beginning on the first Monday in the month of January, A. D. 1905, which office you claim, and to which office you have been declared elected and for which-you have received a certificate of election from the Board of Election Commissioners of the city of St. Louis pursuant to their canvass of the votes cast at the election lately held, to-wit, on the 8th day of November last. Pursuant to the provisions of the statute in such cases made and provided I now deliver to you a copy of the petition prepared by me for the purpose of contesting your election as aforesaid, in which petition I have set forth the points upon which I shall contest your election and the facts which I shall prove in support of such points, which said petition I shall, ten days after the service of this notice upon you, and within forty days after the date of the election above mentioned, file in the circuit court of the city of St. Louis, and also with Honorable John W. Mc-Elhinney, judge of the circuit court for the Thirteenth Judicial Circuit of the State of Missouri, the same being an adjoining judicial circuit to the Eighth Judicial Circuit aforesaid, the residence of the .Honorable John W. McElhinney, circuit judge as aforesaid, being the nearest to your place of residence of any circuit judge of any judicial circuit adjoining the said Eighth Judicial Circuit, and with' such other qualified circuit judge if any there be whose residence is nearer than that of Judge McElhinney. You are further notified that having filed the said petition in the said circuit court, and also with the said Hon. John W. McElhinney or other circuit judge as aforesaid, I shall ask for all proper process in said proceeding and take further steps therein according to law.
“W.‘ Zachritz.”

The insufficiency of this notice is relied upon as the first ground for a writ of prohibition. The claim that it was insufficient was first made by motion of the contestee to dismiss the contest, the contestee appearing specially for that purpose only, and it was again made by the answer of the contestee.

By section 7066, Revised Statutes 1899, the provisions of sections 7057 and 7058, 7059 and 7060; concerning contests and proceedings therein in the Supreme Court and before the judges thereof, shall be applicable to and shall govern contests for the office of circuit judge and proceedings therein in the circuit courts and before the judges thereof. By section 7057 it is provided: “The contestee shall be served with a copy of such petition, and a notice of the time and place of the presentation of the same, ten days before the same shall be presented.” In State ex rel. Folk v. Spencer, 164 Mo. 52, it was ruled that a contest of election for the office of circuit attorney is required to be conducted in all respects like a contest of election for judge of the circuit court, and that section 7057, supra, was applicable to such contests. In that case, it was said: 1 ‘ The ten days ’ notice of intention to file the petition, required by section 7057, has been held by this court to be. necessary to give the court jurisdiction of the person, and cases where such notice has not been given have been dismissed for such failure. [Castello v. St. Louis Circuit Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 293; Higbee v. Ellison, 92 Mo. 13.] ”

The first objection urged against the notice given by the contestant Zachritz to the contestee Sale, on the 7th of December, 1904, is that it failed to state that the contestant’s petition would be filed in the office of the clerk of the circuit court as required by section 7062, Revised Statutes 1899. This contention is predicated upon the language of the notice given by contestant and hereinbefore set out, in which the contestee is notified that the contestant “shall, ten days after the service of this notice upon you and within forty days after the date of the election above mentioned, file in the circuit court of the city of St. Louis, said petition.” In other words, that a notice that the petition would be filed “in the circuit court” is not equivalent to filing “in the office of the clerk of the circuit court.” It is admitted that the petition was actually filed in the office of the clerk of the circuit court, and it is also admitted that the contestee filed an answer in the circuit court to the petition of the contestant. Under our laws, each clerk of the circuit court is required to keep the records, papers, seal and property belonging to his office, and no paper or pleading is considered to be filed in court unless it be delivered to the clerk of the court. We hold that the expression “file in the circuit court” is equivalent to “file in the office of the clerk of the circuit court, ’ ’ and the two expressions are identical in meaning. The contestee could not have been misled to his hurt by the use of the words “file in the circuit court” instead of “in the office of the clerk thereof.” This point must be ruled against the relator herein.

The mere fact that, the notice also stated that it would be filed with Judge McElhinney, and any nearer judge, if there was one, did not render the notice that it would be filed in’ the circuit court bad. But such additional matter can and must be treated as unnecessary surplusage.

Another complaint is that the notice was fatally defective in not sufficiently designating the time when the petition would be filed. The notice stated that the contestant would “ten days after the service of this notice upon you file in the circuit court, the petition, ’ ’ etc. The maxim of the law that that is certain which can be rendered certain, must govern in this case, and when the notice stated that the petition would be filed ten days after the notice was served and within forty days after the election we think it was sufficiently definite. The argument that there were two days after the service of the notice which fell within the description of a term “forty days after the election,” to-wit, December 17, 1904, which was Saturday, and December 18,1904, which was Sunday, is, we think, without merit.The period of forty days after the election ended on Sunday, December 18, 1904, and under the law, the Sunday must be excluded, and hence the petition was filed on December 17, 1904, the last day on which it could be filed, and this was ten days after the service of the notice.

But there is a further answer to this whole contention on the part of the relator. It is admitted that as contestee he appeared in the circuit court and filed his answer to the merits of the case, which answer is in part a cross-complaint against the contestant, and having done so, he waived the failure to give the notice required by section 7057. [State ex rel. Folk v. Spencer, 164 Mo. l. c. 54, 55.] It follows, therefore, that in so far as the objections of the relator and pontestee to the jurisdiction of the circuit court are founded upon the insufficiency of the notice, it must be held that they are not well taken, and the circuit court had jurisdiction of the contest.

II. But the relator asserts that the contestant cannot maintain this proceeding without joining 'first as party defendant, Mr. Virgil Rule, who was also a candidate for the office of circuit judge at the election in question, and who, according to the final return, received a larger vote than the contestant, although he fell short of receiving such a vote as: entitled him to receive a certificate of election. It is perfectly clear that as Mr. Rule was never awarded the office of judge of the circuit court, it is not possible, to contest with him for the position of something which he does not hold or have. Mr. Rule might have instituted an election contest against all or that part of those who were declared elected over him at this election, but Mr. Rule has not exercised that right and as to him the results of the election have become final. This court has often said that the remedy of prohibition is not a proper one to be applied for the mere settlement of pleadings, nor as a substitute for the ordinary methods of review by appeal or writ of error, but lies only to restrain excessive or wrongful exercise of jurisdiction. It appears that the circuit court has jurisdiction of the subject-matter of this case, and it also appears that there are before that court the necessary parties to fully determine the title of this office as between the contestant and the contestee, and 'that court will not be prohibited from exercising this lawful jurisdiction in the premises because a party not interested in the contest was not joined as a party in that proceeding. We agree fully with the relator that the contestant cannot succeed without proof that he was elected, and it is essential that he should have received the highest vote of any of the candidates, other than the four whose election is conceded, and this is the position of the contestant in the circuit court, as he alleged in his petition that he had received a-higher vote at the election than any of the persons who were candidates for the .circuit judgeship, except the four whose election was admitted. By admitting that there were four persons who received an excess* of votes over himself, contestant is estopped from making any inquiry as to their titles to the office, and is restricted in his contest to relator who was awarded the only remaining place. But after all this complaint against the petition is simply an objection on the ground of non-joinder of parties defendant, an objection which does not go to the jurisdiction of the court, but is one to be disposed of by the circuit court and subject to be reviewed in this court by appeal or writ of error, but not by a writ of prohibition. Our conclusion is that the preliminary rule in prohibition was improvidently granted and it is therefore quashed and the petition for prohibition denied.

Brace, G. J., Burgess, Valliamb, Fox and Lamm, JJ., concur; Graves, not having been a member of the court when this cause was submitted, takes no part in the decision.