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    JOHN C. HEMAN v. CITY OF ST. LOUIS, Appellant.
    Division One,
    July 3, 1908.
    1. STREET IMPROVEMENTS: Extras: Allowance Against City. Where plaintiff and the city entered into a valid contract for the reconstruction of sidewalks; he performed the work and furnished the materials, as extras, in compliance with the terms of the contract; the extras were reasonably worth the prices charged, and he and the street commissioner agreed upon those prices, as provided by the contract; the city duly accepted the work and materials, and he made a demand for payment and payment was refused, he is entitled to judgment against the city in a suit on the contract.
    2. -: -: -: Contract: Competitive Bidding. The charter of St. Louis authorizes the board of public improvements to annually enter into a contract for so much of the reconstruction of a sidewalk as is not properly chargeable to the adjoining property and falls outside of the regular street improvement, such as sewer inlets, coal holes, plugs and meters in the sidewalk, and steps and entrances of various kinds to adjoining buildings, and other odd jobs of paving, such as the narrowing of the walk after the contract was made and the work was begun, etc. For the regular street improvement which can be foreseen, competitive bidding is necessary; but for this extra or emergency work, competitive bidding is not necessary.
    3. -: -: How Determined: No Express Provision. Although there was no express charter provision authorizing the street commissioner to determine what part of the sidewalk construction should be classified as extras, or that authorizes him to agree with the contractor on the prices to be paid therefor, yet if it is clear from the charter that it authorizes the city to make such contracts, the board of public improvements, which has charge of such matters, may properly make the contract, and therein authorize the commissioner both to determine what is extra and the price to be paid therefor.
    4. -: -: Prices: Designated by Contract. Where the contract fixes the price for the regular street improvement, and also provides generally for doing extra work, but does not designate any particular work as extra, nor fix the price therefor, but authorizes the street commissioner to determine what is extra work and the price to be paid for it, there is no ground for contending that the contract specified the prices to be paid for the extra work; and where he fixed only the price of the extra work, there is no foundation for the claim that the Court, in permitting the contractor to show that the prices were approved by the commissioner, permitted the contractor to recover the reasonable value of the extras.
    5. ■-: -: No Appropriation. It is not incumbent on the contractor, in order that he may recover judgment against the city for extra work done under a contract for the improvement of streets and sidewalks, to show that an appropriation had been made to pay for such extra work. In the absence of a showing that the charter prohibits such contracts until after appropriation is made, and in the absence of a showing that no appropriation was made, or that the amount of the judgment is in excess of the appropriation, it will be assumed that an appropriation is not necessary.
    Appeal from St. Louis City Circuit Court. — lion. Walter B. Douglas, Judge.
    Affirmed.

      Charles W. Bates and Benjamin 11. Charles for appellant.
    (1) Tlie city of St. Louis is not liable for ‘ ‘ extras, ’ ’ under charter provisions requiring work to be let by competitive bidding; particularly in view of other provisions of the charter and law prohibiting payment •under the contract in excess of the appropriation therefor. Charter, secs. 15, 18, 24, 27, 28, art. 6; O’Brien v. New York, 139 N. Y. 596; Gage v. New York, 110 App. Div. 419. See, generally, without reference to particular charter or statutory provisions: 1 Abbott on Mun. Corps., pp. 659-662; 1 Smith on Mun. Corps., sec. 741; McBrien v. Grand Rapids, 56 Mich. 105; West Chicago Park Comrs. v. Kineade, 64 111. App. 116; Boston Elevator Co. v. Cambridge, 163 Mass. 64. (2) The city is not liable for work and materials as “extras” which are specifically called for by the contract and for which the contract fixes the price. The fact that certain kinds of work covered by the prices fixed by the contract are called “extra work” does not make "such work extra the contract. No recovery can be had for the reasonable value of the work when the contract itself fixes the price. (3) No recovery can be had for work and materials as extras when such work and materials are incidental and necessary to the complete doing of the work specifically required by the contract and for which the contract fixes the price. Stewart v. Cambridge, 125 Mass. 102; Braney v. Millbury, 167 Mass. 16; O’Brien v. New York, 139 N. Y. 596; Lentilhon v. New York, 102 App. Div. 548, affirmed, 185 N. Y. 549; Burnham v. Milwaukee, lO'O Wis. 55; Comstock v. Eagle Grove, 111 N. W. 52; Gardner v. Detroit, 131 Mich. 21. As to what are incidentals, see: St. Joseph v. Owen, 110 Mo. 455; Independence v. Briggs, 58 Mo. App. 241; Sawyer v. Chicago, 183 111. 59. (4) The city is not liable in this action for work done and materials furnished by the contractor for which the charter requires payments to be made in special taxbills. St. Louis charter, art. 6, sec. 24; Keating v. Kansas, 84 Mo. 415: Especially when the contracts expressly provide that upon delivery of the taxbills to the plaintiff his receipt shall •be taken in full for all claims against the city on account of said work. (5) The city is not liable for work performed under the contract in excess of the appropriation made therefor. Mister v. Kansas City, 18 Mo. App. 227; Pryor v. Kansas City, 153 Mo-. 135; Williams v. New York, 104 N. Y. Supp. 20; People v. Snideker, 94 N. Y. Supp. 323, affirmed, 182 N. Y. 558. (6) The street commissioner had and could be granted no authority to determine whether the contractor was entitled to pay for extra work. His functions and powers were confined to matters affecting the performance of the contract itself. Braney v. Millbury, 167 Mass. 18; Stewart'v. Cambridge, 125 Mass. 103. See also analogous cases in Missouri: Wolcott v. Lawrence Co., 26 Mo. 272; Saline Co. v. Wilson, 61 Mo. 239; Heidelberg v. St. Francois, 100 Mo. 75. (7) An officer not authorized to contract cannot ratify so as to bind the city, nor can ratification take place so as to bind the city except by the authority and in the manner required by the charter for the making of a valid contract. Johnson v. School Dist., 67 Mo. 321; Crutchfield v. Warrensburg, 30 Mo. App. 463; Heidelberg v. St. Francois Co., 100 Mo. 76; Co. v. Cambridge, 163 Mass. 64; Waterson v. Nashville, 106 Tenn. 424.

      Alexander Young and Chester H. Krum for respondent.
    This appeal is absolutely without merit. If appellant were not a public corporation upon whose acts the laws have placed limitations intended for the protection of the people,' the judgment should be affirmed with damages for vexatious delay. 1. Each cause of action is based upon a contract made in conformity with the charter. 2. Recovery was had upon each cause of action in strict conformity with the theory of recovery as'indicated by the particular count. 3. The referee found, and his finding is conclusive, that respoudent not only fully performed the respective contracts, but that' the work was done as ordered by the street commissioner, was approved by him and its price by him fixed and allowed. 4. Each contract had the approval of the then city counselor and contains provisions for “extra work” upheld by this court as fully authorized by the charter. Steffen v. St. Louis, 135 Mo. 44; Allen v. Rogers, 20 Mo. App. 290. 5. There was no* want of corporate authority to contract, and the street commissioner was strictly within the line of his authority in directing the work, approving the same and fixing its price. As this court tersely said in Steffen’s case, the plea of the city is “unconscionable under the circumstances.” We respectfully submit that where a contract is made by a municipal corporation, by authority of its charter, the obligations of the corporation do not differ in an essential respect from the obligations of an individual who has contracted with some other individual. There is nothing upon this appeal which can commend it to the court, and-the judgment should be affirmed.
   WOODSON, J.

This is a suit on a contract for extra work done and materials furnished- by plaintiff under a contract with the city to construct and repair sidewalks upon the streets thereof.

The petition was in three counts, and the answer consisted of a general denial and several special defenses, all of which are mentioned in the referee’s report, which will follow in full. The cause was referred to the late Mr. Arba N. Crane, who found the issues for plaintiff, and reported those findings to the court. Exceptions to the report of the referee were overruled, and judgment rendered thereon for plaintiff. Defendant excepted, and, after an unavailing motion for a new trial, duly appealed to this court.

As the issues made by the pleadings, and the facts found by the referee, are clearly stated in his report to the court, for economy of space we will here set out the report, which is as follows:

“I, the undersigned, to whom the above-entitled cause was referred to try the issues herein, having duly qualified by taking the statutory oath, have proceeded to hear the cause on said order,*both parties appearing.
“The testimony adduced before me appears in the record of four volumes, which I file herewith, and I also file the exhibits introduced at the hearing.
“The petition, amended by interlineation, has three counts. The statement is simplified by dealing first exclusively with the first count, the decision as to which involves almost every point to be decided as to the other two counts.
“The defendant entered into a valid contract with plaintiff, numbered 3,520', for the construction of sidewalks with artificial stone flagging, and repairing sidewalks with brick whenever and wherever directed by the street commissioner of defendant within the portion of the city of St. Louis defined in the contract, from the date of the contract in June, 1893, to July 1, 1894. Under that contract plaintiff acted. These allegations of the petition are met only by general denial, and I find have been proved without conflicting evidence. The petition which sets out the contract in liaec verba, proceeds to state that plaintiff in course of various constructions which he was called on to make under the contract, under the orders and directions of defendant’s street commissioner, did extra work and furnished extra material. Exhibit B 2, referred to in the petition and treated by me as part thereof, states under respective notice numbers, orders for construction and repair involving such alleged extra work and material and the prices charged therefor. The defense, applying to all of the three counts, is a general denial, and a special defense, the gist of which is, first, that under provisions of the charter of the city of St. Louis, cited in the answer, the city cannot be held liable for the extra work claimed in the petition; second, that the contract, arguing from certain cited provisions, does not bear an interpretation authorizing any charge for such extra work; third, that any provision of the contract' authorizing such charge would be void as in contravention of the city’s charter; and, fourth, that plaintiff had received special taxbills in full discharge of all claims under the contract. The reply is a general denial of the answer.
“The general situation, as I suppose both sides concede it — at all events, as I formally find it — is as follows: When a piece of sidewalk within the district covered by plaintiff’s contract had been found by the city authorities to require re-construction, the owner of the adjoining premises was notified. If he failed to do the work within a defined time, plaintiff was notified by the street commissioner to reconstruct. This notice to the owner was a prerequisite to the issuance of a special taxbill for the work done by plaintiff. This notice to the contractor, plaintiff, was in writing. For this reconstruction plaintiff was paid by special tax-bills against the owner, which taxbills were for the exact amount of space covered by the work. Such orders to plaintiff to reconstruct were frequent, often several on a day. When carrying out this reconstruction, incidental work would frequently be necessary. There would be public constructions on the sidewalk, such as the'cover of the sewer inlets and the various plugs and meters ih public use; there would also be coal holes in the middle of the walk, and steps and entrances of various kinds adjoining the building. The sidewalk in each case was to be an uninterrupted plane. I find that the city required that of plaintiff. When a condemned sidewalk was reconstructed, the structure mentioned, in very many cases, if left untouched, would have constituted irregularities, depressions or protuberances. I find under the evidence that the plaintiff was required by the street commissioner to adjust all these structures to the plane of the sidewalk.
“We have thus a class of alleged extra work arising out of the city’s demand that everything about the sidewalk should be adjusted to the required plane. With these items I have associated the cases where extra work is claimed on steps or other structures appertaining to the premises of the property adjoining the sidewalk, supposed to be in fulfillment of the city’s duty to adjust such structures, to reconstruct the sidewalk and to see to it that the owner was in no way injured by tbe change. This class of items it is practically impossible to separate from the preceding group, so far as plaintiff’s bill is concerned; since the items of that bill in most instances cover both hinds of work in one item without indications by which apportionment can be made. Since all these items arose under an order from the street commissioner, as will appear by my subsequent findings, I deem it unnecessary, for the purpose of any legal question, to attempt discrimination between extra work on the sidewalk and extra work on construction of the adjoining property. All items of Exhibit B 2 covering any work claimed to be done incidentally to carrying out the work which was done under any notice given by the street commissioner are grouped together in the first list of ultimate findings hereinafter set forth. In that same group, I have placed such cases of extra grading or filling as appear in the contract.
“Another class of items in plaintiff’s account rests on this state of affairs: The city would order plaintiff to reconstruct some sidewalk. This order would give the width of the sidewalk, either expressly or by use of the term ‘full width,’ which has an understood meaning in each locality. The plaintiff would excavate and lay cinders to the required width. Then, he claims, the city would order him to lay a narrower sidewalk; he finished the narrower sidewalk, receiving his special taxbill therefor; and introduces in his account an item for the cost of preparing the excess over the finished sidewalk by excavating and placing of cinders. My second list of ultimate findings covers this class of items. -
“A third group is composed of a few cases where plaintiff was directed to reconstruct, and, after he had done some work, was ordered to stop.
“Fourthly, is a single case where plaintiff, under claim of order, reconstructed a piece of pavement beyond tbe limits fixed in tbe notice to tbe adjoining proprietor and in the notice following thereon to plaintiff.
“I next collate from the contract between plaintiff and defendant set forth in the petition what seems necessary to the consideration of the case. The contract requires plaintiff to reconstruct sidewalks where property-owners failed to reconstruct in compliance with ordinance.
“Section 4 of the contract is as follows: ‘Any work not herein specified, which may be fairly implied as included in this contract, of which the street commissioner shall judge, shall be done by the first party without extra charge. The first party shall also dd such extra work in connection with this contract as the street commissioner may especially direct, and if it shall be for a kind for which no price is stated in this contract, such price shall be fixed by said commissioner; but no claim for extra work shall be allowed unless the same was done in pursuance of special orders as aforesaid, and the claim- presented as soon as practicable after work is done and before the final estimate.’
“Section 5 is as follows: ‘To prevent all suits and litigations, it is further agreed by the parties hereto that the street commissioner shall, in all cases, determine the amount or quantity of the several kinds of work which are to he paid for under this contract, and he shall decide all questions which may arise relative to the execution of this contract on the part of the contractor, and his estimates and decisions shall be final and conclusive.’
“Section 28, article 6, of the charter is referred to in the argument, being set forth in section 7 of the contract, though I think it clearly inapplicable to any phase of this case.
‘ ‘ Section 10 of the contract provides that all orders for construction and repairs of sidewalks shall he given every morning at the street commissioner’s office, with provision for penalty for failure to complete the work in a time which the order must specify.
‘ ‘ The prices are then specified, being for constructing sidewalks ‘known as’ different kinds of ‘flagging,’ for repairing and patching old- sidewalks, 1, with flagging, 2, with new brick, 3, old brick. No other prices are specified.
“Under ‘Manner of Payment’ it is provided that ‘the payment for extra work in making excavation or refilling sub-foundations and for furnishing and setting new curbing and for taking up- and re-setting old curbing’ shall he made by the city. ‘The remainder of the. work embraced in this contract shall be paid by special taxbills, ’ etc.
“As to the manner in which this alleged work was performed, I make the following finding: When performance under the contract began, the street commissioner of defendant directed plaintiff 4o' do without further order the incidental work of the character above illustrated, necessary to make the pavement a good job and to properly protect the adjoining proprietors from any detriment caused by the change of the pavement. A restriction that more important matters should be specially referred to him, I think is of no practical hearing, since I find that the only item which would seem to come under this exclusion, under notice 483, the second item in the first list hereinafter set forth, was .given personal attention by the street commissioner. »
“I find plaintiff did all the work claimed by him of the nature coming under the first group of items, in a few instances under special orders from the street commissioner or his authorized deputies; in most instances, however, under the general direction of the street commissioner above given. I do not find sufficient evidence of a written order for this extra work in the first group in any special case.
“Plaintiff did this alleged extra work in every case in the presence of and with the knowledge of an authorized representative of the street commissioner, some such representative being continuously present during the performance of each job under the contract. As the work claimed to be extra on each job was completed, within a short time (less than a month) thereafter, and before the issuance of a tax-bill on the work for which the claimed extra work was incidental, there was submitted to the street commissioner a claim for such extra work, stating the price claimed therefor. There were discussions between the plaintiff and the street commissioner as to the charges on some items, and I find that the commissioner and plaintiff finally agreed on the charges as in the exhibit, and as hereinafter found. Each and every item was 0. K’d by the street commissioner with his own hand and given to plaintiff. These O. K’d charges as to most items were produced in evidence, plaintiff being unable to find the balance.
“I further find that the price charged for each item was reasonable; that no part of these items was incorporated in special taxbills against the property-owners. There must be a finding also as to whether the items charged as ‘extras’ were really extras; whether they did not regularly come under the contract and should not have been charged in the special taxbills. If the issues were presented badly on the contract, together with the evidence as to the work done, several items would be hard to determine. For instance, as to work around trees, so frequently recurring, it may be well questioned whether it was not incidental to the contract. But the bulk of the items are clearly outside of the contract. As to the doubtful items, I think it a controlling factor that the street commissioner, representing the city in that behalf, ratified their character as ‘extras.’ His authority to speak for the city seems clear. The acts of the parties decide the interpretation of contracts in cases of doubt. I find that each and every item in my itemized account was ‘extra.’
“By answer and appropriate objections to the introduction of evidence, defendant insists that under the city’s charter the city can in no way. be made liable for work incidental to pavement reconstruction to be paid for by special taxbills.
“Steffen v. St. Louis, 135 Mo. 44, deals with recovery from the city under a contract, almost, if not absolutely, identical in form with the one here involved.' The city was held liable for work begun under city orders, but stopped before completion. Under the reasoning of the opinion, I think it clear that the city can be liable for extras.
“Again, the defendant urges that the provisions as to manner of payment, directing that the payment for a few defined classes of work shall be made by the city, limits the extra work "for which the city may be made liable, including the extra work not specifically mentioned. I do not think this clause does anything more than lay down a few classes of work for which the city is always liable.. The contract in section 4 provides for such extra work in connection with this contract as the street commissioner shall specifically direct; and gives him, in section 5, the power to decide all questions which shall arise relative to the execution of this contract on the part of the contractor. I think it clear “that the contract contemplates ‘extra work’ beyond ‘making excavations, refilling sub-foundations and furnishing and setting new or old curbings.’ I think it clearly contemplates work for most of which there would, be no legal right to issue special taxbills.
“Section 4, quoted in full above, provides for ‘such extra work in connection with this contract as the street commissioner may specifically direct. . . . But no work shall be allowed unless the same was done in pursuance of special orders. ’
“I do not think that anything in the contract requires such special orders to be in writing. I find there was a general order from the street commissioner to plaintiff to do'extra work of the character shown in the first group of items without coming in for a special order in each individual case. Quite a number of the' items in this group I am satisfied were specially ordered by the street commissioner or his authorized representatives as extra work, though plaintiff can identify only a small number of such cases.
“In cases which defendant claims to have been done only under a general order, I make my finding of fact, that in each instance some authorized representative of the street commissioner was present during the whole time any job of paving was being done; that in each case said representative required the extra work to be done, and saw that it was done. While I find the representative' required such extra work to be done, I believe that in most instances there was nothing said between plaintiff and, such representative as to whether such work was ‘extra.’ Shortly after completion of such a .piece of work, a bill was presented in each instance to the street commissioner for the extra. In all cases of items in group one, the street commissioner approved the bill in the amount stated below, as an extra.
“On these specific findings, I base my general finding that each and every item of group 1 was done in pursuance of ‘special orders.’
“As to group 2, consisting of cases where the sidewalk was narrowed from the first order, I find there was a special order in every ease. I also find that in each and every case covered in the four groups the claim was presented as soon as practicable after the work was done, and before the final estimate.
“The third group of items have the following facts in common: Plaintiff received the regular notice to reconstruct; proceeded thereunder, and while the work was in hand, was notified by an order emanating directly from the street commissioner to suspend work, and did so. In all cases the plaintiff’s bill for what was thus done under the street commissioner’s orders was approved by the street commissioner.
“In the cases under notice Nos. 731, 1090 and 1452, plaintiff was directed by the street commissioner to relay the brick pavement, did so, and included charges therefor in the bill which the street commissioner approved.
“In cases 731, 1291 and 1292 it appears that the adjoining owner had not been served with the. jurisdictional notice. In No. 1210 there was no ordinance authorizing the laying of any pavement by the city.
“Under notice 1005, where it seems there was due notice to the owner, plaintiff completed part of the job, being extras of the character of those in group 1, involved in Ms claim, and had partly done the remainder of twenty-odd feet of Ms order, when the commissioner directed him to stop. For the completed work plaintiff has special taxbills, and charges as an extra in this suit for the partly finished portion of the pavement.
“In all these cases the plaintiff complied with the personal directions of the street commissioner. I find Ms demand in each and every ease was presented in due time and was approved by the street commissioner. I think under the ruling in the Steffen case he is entitled to recover on all these items of the third group.
“I have put fourthly by itself an item involving unsegregated elements of the nature of these under group 1, resting in greater part on the following state of facts, as I find them:
“The notice to reconstruct, to the owner, duly served, described a particular frontage; the order to plaintiff, No. 117, conformed to the description. The plaintiff, under direction of the street commissioner or his authorized agent, laid ten feet more of granitoid than the order to plaintiff or the underlying notice to the owner called-for. There is no charge for laying that ten feet, but it seems an unascertainable portion of the bill for $21.25 charged in this item as extra work of the nature of claims in group 1 was for work in this ten-foot strip. The bill for extras including this element was 0. K’d by the street commissioner. I think it should be allowed.
“I herewith present my list of items of what plaintiff is entitled to recover under my findings in four groups, as follows:
“The left-hand column gives the number of the notice from the street commissioner to plaintiff under which the extra work was done — the right column states the amount which I find should be allowed on each item:
“1. Claims for extra work on completed pavements, consisting of alterations of structures on the pavements to maintain the level, and of alterations, readjustment and repairs on pavement of structures appurtenant to premises of adjoining owner:
No. of Order. Amount.
471 $ 27.20
483 413.05
[Then follow several pages of itemized amounts and the number of notices or orders to make sidewalks in manner shown above.. These are omitted. The aggregate finding under this class, $3,499.45.]
“2. Cases where work was done under original order and sidewalk narrowed thereafter by defendant’s order. [Then follows statement as under first class, aggregating $1,004.70.]
“3. Cases where work, was partially done and countermanded. [These items aggregate $755.75.]
“4. Incidental work on authorized pavement as above found: •
117 $21.25.
“I think all the items above listed should be allowed.
“All items in Exhibit B 2 not above listed were either withdrawn by plaintiff or else, in my opinion, not proved. I find against plaintiff on all such items.
“The items whose allowance I recommend aggregate $5',281.15.
“I find that demand was made not later than August 1st, 1894, that interest be allowed from that date.
“The second count is for a similar claim for extra work under a contract, numbered 3,712, in another district of the city, from July 20, 1894 to July. 1st, 1895.
“The contract underlying this count is in all respects concerning this suit analogous to the one underlying the preceding count, save in one particular: The first paragraph in contract No. 3,520, first count under ‘Manner of Pavement,’ quoted before, directing that extra work in excavation, sub-foundation and curbing shall be paid for directly by the city, does not exist in Contract 3,712, so the latter contract states that ‘all the work embraced in this contract shall be paid’ .in special taxbills.
“The distinction strikes me as unfavorable to the defendant’s claim that the city is not liable for the extra work authorized by section 4, the price of which the street commissioner determines, so far as not coming within the limited number of kinds of work for which a price is fixed. The work thus clearly authorized is ‘of a class for which no special tax bill could issue.’ The ‘Manner of Payment’ provision can only cover the work for which special tax bills can be issued. I construe the whole contract as authorizing the street commissioner to order extra work and make the city liable therefor.
“The items of this count, exhibit D 2, fall under the three first groups of the prior count. I make the same findings. I find each item was done under special order of the street commissioner — in group 2 'and 3 under his personal order — in group 1 in the same manner in twhieh I made the corresponding finding in the first count. The work was done under the supervision of the street commissioner or his authorized representative. It was in each instance worth the price charged; the bill was 0. K.’d by the street commissioner- in person, which occurred in each instance as soon as practicable after the extra work was done, and prior to final estimate.
“I find the issues in favor of plaintiff as to the-following items of Exhibit D 2, the classification being the same as with regard to the first count:
“1. Items omitted aggregate $162.60.
“2. Items omitted, aggregating $93.00.
“3. Items omitted, aggregating $200.00'.
“I find evidence insufficient as to notice 3101— $37.40 claimed — and recommend the rejection of that item.
“The items of the foregoing lists whose allowance I recommend aggregate $456.20. Demand was made not later than August 1st, 1895, and interest should be allowed from that date.
“The claim on the third count under contract 3,712, of which the items appear in Exhibit P 2, is in all respects analogous to the claim in the second count.
“I repeat my findings as to the general facts common to all of the claims, and give the listof items under this third count, as under the prior two counts, with the recommendation for their allowance in the sums set forth.
“I find the issues in favor of plaintiff as to the following items of Exhibit P 2, the classification being the samé as with reference to the first count:
“1. Items omitted aggregate $150.10'.
“2. Items omitted, aggregating $183.70.
“I reject item 387 for $16.40.
. “The items of the foregoing lists, whose allowance I recommend, aggregate $333.80. Demand was made not later than August 1st, 1895, and interest should be allowed from that date.”

Oh the report of the referee, judgment was rendered for plaintiff on all counts, the amount of which, including interest, was $9,990.41.

Appellant assigns numerous errors committed by the trial court, but, whén properly considered, we are of the opinion that they are all fairly embraced in the three following:

First. The findings of fact of the referee are not sufficient in law to sustain a judgment in favor of the plaintiff, and the court erred in rendering judgment for the plaintiff in said report.

Second. The court erred in holding that the plaintiff could recover the reasonable price of work and materials as extras where the written contract under which plaintiff claims to have done the work and furnished the materials specified the prices thereof.

Third. The court erred in holding that the plaintiff could recover against the city on a contract for work and materials in the absence of any showing that an appropriation had been made therefor, or in allowing a recovery in excess of the appropriation.

I. We are unable to lend our assent to the first assignment, for the reason that the evidence preserved in the record sustains the referee in his findings, in that he and the city entered into the contract sued on; that he performed the work and furnished the materials, as extras, in compliance with the terms of the contract; that they were reasonably worth the prices charged and that he and the city engineer agreed upon those prices as provided for by the contract; that the city duly accepted the work and materials; and that he made a demand for payment, and that payment was refused.

Counsel for appellant contend that those facts do not entitle the respondent to a recovery, for the reason, first, that the evidence shows that the extra work done and materials furnished, were not done and furnished under a contract let to him by competitive bidding, in pursuance to an ordinance of the city, ordering the work to be done; and, second, because the city engineer had no authority under the charter to determine what was extra work to be done, or the price to be paid therefor.

Section 15 of article 6 of the charter reads as follows :

• “All ordinances recommended by said board shall specify the character of the work, its extent, the material to be used, the manner and general regulations under which it shall be executed, and the fund out of which it shall be paid, and shall be endorsed with the estimate of the cost thereof; provided, that no improvement or repairs shall be ordered upon any future street, alley or highway, which shall not have been opened, dedicated or established according to the provisions of this charter and law; and provided further, that nothing in this article shall be so construed as to prevent the Board of Public Improvements, through the proper officer thereof, from annually letting and entering into contracts on the first day of July of every year for the grading, constructing, reconstructing and repairing of sidewalks and repairing street, alley and gutter paving and such other similar work, which may be ordered by ordinance, or may become necessary to be done during tbe year.”

By reading this section of the charter, it will be seen that it does not require the work mentioned in the last line thereof to be done in pursuance of an ordinance of the city, specifying the character of the improvements to be made; but the second proviso of that section expressly authorizes the Board of Public Improvements to annually let contracts on the first day of July of every year for doing this class of work.

We take it that the last line of that section refers to all little odd and end jobs of paving, repairing and other improvements of the sidewalks, which are too insignificant to be foreseen, and which are not properly chargeable to the adjoining property and specially provided for in each ordinance and contract providing for regular street improvements. For that reason that class of work falls outside of the regular street- improvements, which must be ordered done by ordinance, and performed under contract awarded by competitive bidding. All such work which does not fall within the regular street improvements and which has its origin more or less in emergency and lack of foresight are designated in the annual contract as extra work; and sections 4 and 5 thereof provide as to how the character of such work is to be determined and' paid for.

We are, therefore, of the opinion that the contract for the extra work sued for is authorized by the charter.

As to the second contention of counsel for appellant, it may be conceded that there is no express charter provision authorizing the street commissioner to determine what part of the improvement shall be considered as extra, or which authorizes him to agree upon the price to be paid therefor; but it is perfectly clear from reading said section 15 of the charter that it grants to the city the power to malee such contracts, which, necessarily implies that it must pay for all such improvements ordered by it. In the absence of the charter provision designating the person who shall determine what is extra work and fix the prices to be paid therefor, we are of the opinion that the Board of Public Improvements, who has charge of such matters, very properly selected and intrusted that duty to the street commissioner, who, by section 35 of article 4, is given special charge of the construction, reconstruction, repairing and cleaning of the public streets, avenues and alleys of the city; and sections four and five of the contract sued on designate the street commissioner as the person to determine those questions. Said sections read as follows:

“4. Any work not herein specified, which may be fairly implied as included in this contract, of which the street commissioner shall judge, shall be done by the first party without extra charge. The first party shall also do such extra work in connection with this contract as the street commissioner may especially direct, and if it shall be of a kind for which no price is stated in this contract, such price shall be fixed by said commissioner; but no claim for extra work shall be allowed unless the same was done in pursuance of special orders as aforesaid, and the claim presented as soon as practicable after work is done and before the final estimate.
“5. To prevent all disputes and litigation, it is further agreed by the parties hereto that the street commissioner shall, in all cases, determine the amount or quantity of the several kinds of work which are to be paid for under this contract, and he shall decide all questions which may arise relative to the execution of this contract on the part of the contractor, and his estimates and decisions shall be final and conclusive.”

The conclusions above reached are supported by section 27 of article 6 of the charter, which, in express terms, makes it the duty of the Board of Public Improvements to make all necessary repairs, requiring prompt action without submitting them to the assembly, as it must do regarding all general streét improvements.

In fact, if he had not been designated as the person who should determine what work was extra and fix the price thereof, it would have excited suspicion, to say the least.

II. It is next contended by counsel for appellant that the court erred in holding that the respondent could- recover for the reasonable price of work and materials as extras where the written contract under which plaintiff claims to have done the work and furnished the materials specified the prices thereof.

Learned counsel overlook the fact that while the contract provides generally for doing extra, work, yet it designates no particular work of that character tb be done, nor does it fix the price to be páid therefor; but authorizes the street commissioner to determine, as the emergency may arise, when extra work shall be done and to fix the price thereof. In other words, while the contract authorizes the street commissioner to have extra work done, yet in all other respects that character of work is extra and beyond the contract. This is not only , the spirit of the contract, but it is also the plain letter thereof; and when so read the contention of counsel for appellant, that the street commissioner has no power to fix or agree upon prices where the contract states them, has no foundation upon which to stand, for the reason that he has not fixed any prices for work and materials where they are provided for and fixed by the contract; but has fixed the prices for work which is extra of the contract.

We are, therefore, of the opinion that appellant’s •second contention is untenable.

III. The third proposition presented by counsel for appellant presents a much more serious question for solution; and that is, that the respondent cannot recover against the city on a contract for work done and materials furnished for such street improvements in the absence of any showing that an appropriation had been made therefor, or in allowing a recovery in excess of the appropriation.

Counsel for appellant have not called our attention to any charter provision prohibiting the city from entering into contracts providing for this class of work without the city first makes a specific appropriation for the purpose and out of which such improvements must be paid for; and after a most careful investigation of the charter, we have been unable to find any such provision. We, therefore, take it for granted that there is no such provision, and that there is no limit to the amount the city may become indebted for such improvements, except the constitutional limitation of five per cent on the assessed valuation of the property located within the city limits.

Section 28 of article 6 of the charter relates only to street improvements which are required and ordered to be made by ordinance, and, has no application whatever to this emergency and unforeseen class of work, called “extra work.”

This seems to be the view this court took of the contract to do this class of work in the case of Steffen v. St. Louis, 135 Mo. 44, where the plaintiff was permitted to recover for similar work and materials, without, however, considering the question of appropriation. That point seems not to have been made in that case, and the court and counsel for both parties assumed that an appropriation was not necessary in such cases. We think that assumption was correct and is controlling in this case.

The judgment is affirmed. All concur except Valliamt, P. J., absent.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    JOSEPH W. THOMPSON et al., Appellants, v. ELIZABETH RUDDICK et al.
    Division One,
    July 3, 1908.
    1. ABSTRACT: Commingling Matters of Record and. Exception. The abstract should indicate by its own internal arrangement what is record proper and what is matter abstracted from the bill of exceptions; and where appellants have brought up a bundle of things, consisting of entries, orders, deeds, testimony, instructions, exceptions, etc., tied together without distinction or explanation, and so mingled and arranged that it cannot be told what is record proper and what is matter of exception, the judgment on plaintiff’s appeal, if the judgment is responsive to and supported by the pleadings, will be affirmed.
    2. -: -: Dismissal. But the appeal will not be dismissed where plaintiff is the appellant and has brought up a wholly insufficient abstract, for an appeal lies without a bill of exceptions, and even where the abstract is in such shape that no exception can be considered the record proper is still for consideration, and where the judgment is responsive to and supported by the pleadings the judgment, in such case, will be affirmed.
    Appeal from Clark Circuit Court. — Hoot. Chas. D. Stewart, Judge.
    Affirmed.

      T. L. <& L. J. Montgomery for respondents.
    Tlie purported “abstract of tbe record” filed in tbis cause does not comply with section 813 of tbe statute and rules 11 and 13 of tbis court and presents nothing for review. Tbe cause should be dismissed for the following reasons: Tbe abstract does not show a single record entry in tbe cause. That is to say: (1) Does not show any bill of exceptions was ever filed in tbe cause. (2) Does not show that any motion for a new trial or in arrest of judgment was filed or any action of the court thereon. (3) Does not show any record entry of the filing of the pleadings. (4) There is no index to the purported abstract of the record. (5) Said abstract is simply excerpts from a purported bill of exceptions. (6) It does not “set forth a copy of so much of the record as is necessary to be considered in the disposition of the assigned errors.” Stark v. Zehnder, 204 Mo. 448; Hill v. Butler Co., 195 Mo. 514; State v. St. Louis, 174 Mo. 125'.

      Whiteside & Ycwb for appellants in reply.
    (1) Index to abstract of record and brief having been overlooked when our brief was printed, we here supply it. (2) Our abstract of the record was made from the record and not from the bill of exceptions. We, perhaps, should have taken the record, entries up until the filing of the bill of exceptions without showing our exceptions to the orders of the court and then dealt with the exceptions afterwards, but we have taken it in regular order, getting all our record entries, however, from the record proper. Our idea was that an abstract in narrative form, and reciting the various entries instead of copying them literally, would be sufficient. Martin v. Castle, 182 Mo. 216.
   LAMM, J.

In 1836, William H. Thompson entered the southeast quarter of the southeast quarter and the southwest quarter of the northeast quarter of section 12, township 63, range 6 in Clark county, Missouri, and died in the 50’s or 60’s at Palmyra.

The land (we infer) was in the Mississippi river bottom and shown to be subject to overflow. Thompson never took possession. On December 15, 1836, he, by two several deeds, conveyed a one-eighth interest each to Erastus Palmer and to William Brown. On April 27, 1837, he deeded a one-eighth interest to Stephen Negus and John Barclay.

A quarter of a century or more ago one William Ruddick took possession under color of title, built dykes, and levees, dug’ ditches, cut the willows, subdued the land and (struggling with recurring- floods) farmed it, paid the taxes for twenty-four years and died leaving a widow and children.

Ruddick’s title originated in tax deeds, and in a quit-claim deed from the executors of the will of said William Brown. Finally, plaintiffs, as heirs of Thompson, sued defendants as the widow and heirs of said Ruddick in partition. Such things developed in that case that plaintiffs were forced to bring this ejectment against the widow and heirs of Ruddick and their tenants in possession to try title and recover possession of a five-eighths interest, as a step, towards partition.

Plaintiffs’ theory at the trial was that while defendants and their ancestor were in possession for the statutory period of limitations, yet such possession was merely that of one out of several tenants in common, i. e., it was held for all, therefore, the Statute of Limitations did not run in their favor to create title or as a bar. And such is their position on appeal.

The theory of defendants'was the opposite of that. Ás a bar to ejectment and as creating title in themselves, they pleaded by way of answer that said Ruddick and his tenants and, since his death, these defendants and their tenants have held-open, notorious, continuous and exclusive adverse possession under claim of ownership as against the whole world for more than ten years. And such is now their contention.

At a jury trial in the Clark Circuit Court the issues were found for defendants, and plaintiffs appealed.

In this court, defendants (among other points) in-1 sist the abstract is imperfect and does not comply with our rules as interpreted by our decisions. An examination of it discloses this is so. Plaintiffs have brought here a bundle of things, tied together without earmark or explanation, consisting of entries, orders, deeds, testimony, instructions, exceptions, etc., all so mingled and arranged that it is out of the question to tell what is record proper, and what is matter of exceptions.

We have often and often held that there is a significant distinction in substance between matter of exception' and matter of record proper and that such distinction should be preserved in making abstracts. We have dismissed cases because appellants have relied on narrations in the bill of exceptions relating to matter that pertains solely to the record proper, and vice versa. It has been held in effect that in some reasonable way the abstract should indicate by its own internal arrangement what is record proper and what is matter abstracted from the bill of exceptions— where the one ends and the other begins. [Stark v. Zehnder, 204 Mo. l. c. 448, et seq.; see also, Harding v. Bedoll, 202. Mo. l. c. 630; Pennowfsky v. Coerver, 205 Mo. l. c. 137.]

The moral is that there is a place for everything and everything should be in its place. This, in order" that we may see that the matter brought here is authenticated as coming from a legitimate source. Of what avail, indeed, would be our rulings requiring record proper to be abstracted as such, and the bill of exceptions to be abstracted as such if an appellant may be allowed to produce here his entire record so confused that record entry and exceptions are undistinguishably woven together and so that no court can tell from what receptacle the one or the other came? If we, without furnished chart, must sort out and divide record entries relating to the filing and the overruling of motions, the allowance of an appeal, the settling and filing of the bill of exceptions, etc., from those matters which must alone appear in a bill of exceptious, our action might he wide of the mark as mere guess work. Therefore, in some way the abstract should show that the rulings of the court and the exceptions thereon were preserved in a bill of exceptions.

Defendants insist that the appeal should be dismissed, but this ought not to be done because an appeal- lies without a hill of exceptions, provided appellants desire to take that course and rest their case on the record proper. Accordingly, we have examined the pleadings and judgment. We find the latter is responsive to and supported by the former. But, being unable to tell with certainty from the abstract what exceptions were preserved in a bill of exceptions, we are obliged to treat the case as if there was none. It must be obvious that there should be one rule of appellate practice for all, and that rule enforced against all. Otherwise, those who obey the rules gain nothing by their obedience and those who disobey them lose nothing by their disobedience.

The premises considered, the judgment should be affirmed.

It is so ordered. All concur, except Valliant, P. J absent.


author: WOODSON, J.

text:
    H. E. HOWELL et al. v. THOMAS A. SHERWOOD et al., Appellants.
    Division One,
    July 3, 1908.
    I. GARNISHMENT: Summons: Insufficient: Jurisdiction. A return in these words, “Executed the within writ by summoning Charles Carlton as garnishee,” was insufficient under the statute in force in 1861 (Sec. 6, ch. 63, and sec. 22, ch. 12, R. S.. 1855), to give the court jurisdiction over the garnishee named or over the subject-matter of the garnishment, and the judgment; by default rendered against him was a nullity. The return neither informed Carlton when and where he was to appear- and what interrogatories he was to answer, nor did it contain; a recital that the officer declared to Carlton that he seized: or attached in his hands all debts, moneys and credits due or owing by him to the defendant in the execution, which things the statute required the return to contain.
    2. -: -: -: -: Collateral Attack. The judgment made in pursuance to such a return being void, is subject to collateral attack — for instance, when it is relied upon as a link in plaintiff’s title in his suit in ejectment.
    Appeal from Greene Circuit Court. — Ho». Jas. T. Ne-ville, Judge.
    Reversed and remanded.

      T. J. Delaney and Henry C. Young for appellants.
    The sheriff’s deed attempting to convey Carlton’s interest is absolutely void because of lack of jurisdiction in the court to render judgment in the so-called garnishment proceeding against Carlton. Norvell v. Porter, 62 Mo. 309; Gates v. Tusten, 89 Mo. 13; Malsby v. Farr, 3 Mo. 430; Coal Co. v. Adams, 991 Mo. App. 482; Huffman v. Sisk, 62 Mo. App. 398 ; Feurt v. Castor, 174 Mo. 301; Anderson v. Scott, 2 Mo. 15; Cabeen v. Douglas, 1 Mo. 336; Padden v. Moore, 12 N. W. 724; Brown on Jurisdiction, pp. 121, 122, 127; 1 Black on Judg., 223; Grocer C'o. v. Carlson, 67 Mo. 183. And such lack of jurisdiction may be shown by secondary evidence of the contents of the lost files for the purpose of impeaching the judgment. Eaton v. Hall, 5 Met. (Mass.) 287; Parry v. Walser, 57'Mo. 172; Foulk v. Colburn, 48 Mo. 230; Ravenscroft v. Giboney, 2 Mo. 1; MeClanahan v. West, 100’ Mo. 321; Davis v. Montgomery, 205 Mo. 271; Land Company v. Mining Company, 187 Mo. 434; Graham v. C'’Fallen, 3 Mo. 507; Burnett v. McCluev, 78 Mo. 689; Howard v. Thornton, 50 Mo. 292. It is also void because the execution is an alias or renewed execution and fails to recite the issue of the former execution, the levies thereunder and the amount realized therefrom. Laws 1863, p. 20 ; Maupin v. Emmons, 47 Mo. 308; Wood v. Augustine, 61 Mo. 50. It is also void because issued for costs in addition to the judgment while the judgment did not carry costs. Under the statute then in force a judgment in garnishment proceedings did not carry costs unless specifically so directed therein. Maloney v. Real Est. B. & L. Assn., 57 Mo. App. 384; R. S. 1855-, ch. 12, 70 and 75; Ibid. ch. 40, 6 and 32. It is also void because .satisfied by the sale under the first execution. It is also void because made returnable to a d'ay in the past instead of to one in the future, the execution being issued on the 7th day of December, 1863, and made returnable to the January term, 1863.

      Patterson é Patterson for respondents.
    On February 14, 1861, an execution in favor of Hayden and Wilson was duly issued against Geo. A. Taylor and on that execution Charles Carlton was summoned as garnishee. On the 10th day of February, 1863, a final judgment in default was rendered against Charles Carlton for the sum of $682 and costs. It is contended on the part of appellants that the officer having in charge the said execution merely summoned Carlton but did not declare to him that he attached all debts due from him to the judgment debtor, or so much thereof as would have been sufficient to satisfy the judgment debt, etc. The execution is lost and has not been seen since 1866 or 1867. It has always been the practice of sheriffs, in garnishment proceedings, under execution, though not required by statute, to serve a written notice on the garnishee, informing him particularly of the nature of the proceeding and declaring to him in writing that he attached all debts due the judgment debtor and all goods, etc., particularly describing same, and to return a copy of said written notice with the execution. The said execution was returned at the first regular term of the court held after the issuance of the execution, interrogatories were duly filed, witnesses on the part of the judgment creditors duly subpoenaed and present, but Carlton made default. .The court, whose statutory duty it was to inspect the return of service, which was then a part of the files in the proceeding, found as follows: “And it appearing to the satisfaction of the court that Charles Carlton has been duly summoned as garnishee' in this cause, and has failed to answer,” etc., and thereupon a final judgment in default was entered against Carlton for $682 and 'costs. No appeal was ever taken from this judgment. No proceeding was ever instituted to set aside the judgment for irregularity or to set aside the default. The court had jurisdiction of the subject-matter of the garnishment proceeding invoked by the issuance of a fieri facias execution and by the direction of the judgment creditors of Taylor to summon Carlton as garnishee, and had jurisdiction over the person of Carlton by reason of the sheriff executing the writ of execution by personally summoning Charles Carlton as garnishee. Jurisdiction of the ■ subject-matter is the power of the court to hear and determine eases of the class to which the proceeding in question belongs. Leonard v. Sparks, 117 Mo. 103; Cooper v. Reynolds, 77 U. S. 308; Pennoyer v. Neff, 95 U. S. 417. A direct and seasonable attack on the return of service is one thing, and a collateral attack whether made one day or forty years after the rendition of a judgment, is quite another thing. It should be borne in mind that every case cited by appellants is a case wherein the defective or irregular return of service was put in issue by direct attack. Charles v. Mamey, 1 Mo. 537; Hickman v. Barnes, 1 Mo. 156; Blanton v. Jameson, 3 Mo. 52; Wilson v. Jackson, 10 Mo. 213; State to use v. Williamson, 57 Mo. 198; secs. 44, 48, p. 539, R. S. 1855. The personal service on Carlton as testified to by Judge Sherwood, is good and proper so far as it'goes. The sheriff as a sworn public officer is presumed to have done his duty and there is no evidence that he did not do so other than the silence of his return. And the silence of one portion of the record is not sufficient to overthrow the affirmative declaration of. due service in the judgment in a collateral proceeding a lifetime after the service. Freeman on Judgments, sec. 125; Segal v. Reisert (Ky.), 107 S. W. 750; Cloud v. Pierce City, 86 Mo. 361.
   WOODSON, J.

This is a suit in ejectment for the possession of a tract of some ten acres of land, situate in the city' of Springfield, Greene county.

The petition was in the usual form, and the answer of defendant Sherwood was a general denial of all the allegations of the petition except the one of possession, and that of defendant Blakey was a disclaimer of all interest in the premises exeept as a tenant of his co-defendant.

The cause was tried by the court without the intervention of a jury, which .resulted in a judgment for the plaintiff, and defendant duly appealed to this court.

Charles Carlton was the common source of .title; and after the introduction of all the evidence, the defendant requested and the court made a special finding of facts, which, omitting formal parts, is as follows:

“Comes now the defendant in the above-entitled cause and requests the court to make the following finding of facts herein, to-wit:
“1. The court finds that the testimony of the defendant, Thomas A Sherwood, given in this case, is true, and that the facts concerning which he testified are as they were by him stated.
“2. The court finds that on the 30th day of January, 1861, a judgment was rendered in the circuit court of Greene county, Missouri, in favor of Peter Hayden and Pollock Wilson as plaintiffs against George A. Taylor as defendant for the snm of $922.81 debt and $64.35 costs. That upon this judgment an execution was issued on the 14th day of February, .1861, and that the clerk’s execution docket, upon which the issue of this execution is noted, and upon which all executions in said cause were required by law to be noted, contains no memorandum of the issue of an} other execution in the cause of Hayden and Wilson against George A. Taylor, nor is there any evidence that such other execution was ever issued.
“That said execution is missing from the files in said cause and has disappeared from the office of the clerk of the circuit court of Greene county, Missouri, and cannot be found by the clerk after thorough and diligent search therefor, but that in other respects the files in said cause of Playden and Wilson against Taylor appear to be intact.
“That the only return that was contained or ever appeared upon said execution,was as follows: ‘Executed the within writ by summoning Charles Carlton as garnishee.’ This was in substance and effect the language of the return, and was signed by Thos. A. Reed as sheriff; but the return did not inform Charles Carlton where and when he was to appear. Nor did said return contain any recital that the sheriff declared to said Carlton that he seized or attached in his hands, any debts, moneys, or credits due or owing by said Carlton to said George A. Taylor, defendant in said execution. Nor did said Carlton appear to the. action either personally or otherwise, nor file any answer to the interrogatories filed against him as garnishee; nor were there any interrogatories filed in said cause against said garnishee until the August term, 1862, of said circuit court; nor was any judgment purporting to be an interlocutory judgment entered against said Carlton until the August term, 1862, of the Greene County Circuit Court. And the court further finds in this coñnection that it- was a custom of the sheriff who received the execution in question, and his deputies, to make returns in garnishment proceedings similar to the said return bn the execution in the ease of Hayden & Wilson v. George A. Taylor, without reciting in such returns the fact that such officer declared to the party summoned as garnishee, on account of debts due and owing by him to the execution or attachment defendant, that the officer did attach in his hands all debts due from him to the defendant, or so much thereof as should be sufficient to satisfy the debt and interest or damages and costs.
“That final judgment on the 10th day of February, 1863, was rendered against the garnishee for $682, but no judgment for costs.
“That upon this judgment so rendered against said Carlton, execution issued on the 20th day of February, 1863, and was levied upon other property than that in controversy herein on March 11, 1863, and that as shown by the sheriff’s return, dated August 11, 1863, the land so levied upon was sold for the sum of $695' under said execution, a part of which was applied on the costs, leaving a balance of only $661.94 to be credited on the execution which was credited thereon.
“The court further finds that the return to the above-named execution contains upon its face evidence of alteration and amendment, and that the same was made in pursuance of an order of court dated September 30,186*3, and contained in Book F'., page 200, of the records of the circuit court of Greene county, Missouri, and that the same is the amendment to which reference is made by the court in its said order permitting the sheriff to amend his return upon his execution in said cause, and that said order had no reference to the return on the original execution in the case of Hayden & Wilson v. Taylor, nor did it contemplate an amendment thereof.
“The court further finds that said Sherwood took possession of the land in controversy in September, 1897, and has remained in possession ever since, and upon taking possession, paid all taxes due on said property at that time, and for five years previous thereto, and ever since has paid the taxes on the same, and sold off land for three streets, and conveyed the same to the city of Springfield; and has sold off and conveyed to A. N. Hanson a portion of said land for a lot. That H. E. Howell, or his co-plaintiffs, made no objections to such sales and conveyances, which were made after said Sherwood took possession.
“That said Sherwood was unaware he had acquired title to said land in question until informed he had title thereto by Major Mead, whereupon he also bought said land from C. B. Holland, and took and put to record a deed therefor, and immediately took possession of said land, which was then vacant, and paid all taxes then due as aforesaid. That he had been in possession of said land for over six years, and H. E. Howell and his co-plaintiffs never brought suit nor questioned the title of said Sherwood to said land, until statutory proceedings were instituted against them to compel them to do so, by said Sherwood, under the provisions of section 647, Revised Statutes 1899‘, and then they instituted the present action of ejectment.
“That said H. E. Howell never took possession of said land except of small portions thereof, °at long intervals apart, and no such possession as would give title or semblance to title to said land.
“That from the time of his purchase of said land in 1882, said H. E. Howell never paid any taxes on said land for sixteen years after that date, and not until said Sherwood had taken possession of said land and; paid all taxes due thereon, when said Howell paid taxes for two years on said land, which, taxes were no longer due on said land, having run ont.
“Nor did his co-plaintiffs pay any taxes on said land, nor did co-plaintiffs of said H. E. Howell ever take possession of said land. Nor did H. E. Howell or his said co-plaintiffs, though duly notified thereof, attend to the taking of depositions hy said Sherwood touching certain facts in this cause involved, at Jefferson City, Missouri, in the year 1900, which depositions were taken under the provisions of section 4525, Revised Statutes 1899.
“The court further finds that.before H. E. Howell purchased said land at probate sale, he examined the files in the said cansé of Hayden & "Wilson v. George A. Taylor, for the execution aforesaid on which said Carlton was garnished, and could not find the same among said files, nor did the clerk of said circuit court find the same. The said search for said execution was made after said H. E. Howell had bid in said land at probate sale, but before he paid the purchase money.
“The court further finds that the notes on which David L. Fulbright brought suit against Charles Carlton in order to foreclose his vendor’s lien on the land in question were dated November 28, 1859.
“And the court further finds that H. J. Linden-bower had bought’ on an execution issued on said judgment against Charles Carlton a piece of land on Mt. Vernon street, in Springfield, Missouri, of about seven acres, and afterwards sold the same to said Sherwood, and made a warranty deed to said Sherwood, and one to his wife for said land, but on consultation with said Sherwood said Lindenbower became satisfied, on examination of said return on said execution of Hayden ■& Wilson v. George A. Taylor, that service of garnishment on said Carlton on said execution endorsed was invalid, and thereupon authorized said Sherwood to pay said Carlton, then living in Texas, the sum of $200' for a deed of release, and said Sherwood did secure a quit-claim deed from said Carlton for said land, and said Lindenbower thereupon gave to said Sherwood a credit on his title bond to said Sherwood for said land, for said sum.”

There were no objections made or saved to the finding of facts, and they therefore stand admitted to be true, which obviates the necessity of our wading through the long abstract of the record, consisting of about two hundred printed pages, in order to find what the facts are.

There are many legal propositions presented for our consideration by learned counsel for both parties; but, under the view we takfe of the case, it will not be necessary to consider but one of them, as it fully and effectually disposes of the entire case.

The finding of facts shows that Charles Carlton was the common source of title, and that the plaintiffs claim through him by virtue of various mesne conveyances.

On January 30, 1861, a judgment was rendered in the circuit court of Greene county in favor of Peter Hayden and Pollock Wilson, plaintiffs, against George A. Taylor, defendant, for the sum of $922.81 debt and $64.35 costs. An execution was issued upon that judgment on February 14, 1861, and said Carlton was served as garnishee thereunder. On February 10, 1863, a final judgment by default was rendered against the garnishee for the sum of $682. An execution was issued upon that judgment and levied upon the property in controversy, and on February 2, 1864, it was, by the sheriff, sold to George W. Jamison for the sum of sixty dollars; and the sheriff executed and delivered to him a proper statutory deed. Defendant assails the validity of that deed, for the reason that the circuit court of Greene county acquired no jurisdiction of the person of Charles Carlton, nor of the subject-matter of the suit involved in said garnishment proceedings. The basis of this contention is predicated upon the alleged insufficiency of the service of the garnishment upon Carlton.

The return of the sheriff was made upon the execution issued on the judgment in favor of Hayden and Wilson against Taylor, and was in the following words: “Executed the within writ by summoning Charles Carlton as garnishee.”

The sufficiency of that return must he tested by section 6 of chapter 63, entitled “Executions,” and the second and fourth subdivisions of section 22 of chapter 12, Revised Statutes 1855, entitled, “Attachments,” which were in force at the time these proceedings took place, and which governed garnishment proceedings under executions.

Said section 6 reads as follows: “When a fieri facias shall he issued, and placed in the hands of an officer for collection,. if no sufficient property can he found in the county whereof to levy the amount due on said writ, it shall he the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishees, and with like effect as in case of an original attachment. The service of garnishment in such case, and the subsequent proceedings against and in behalf of the garnishee, shall he the same as in the case of garnishment under attachment.”

The second and fourth subdivisions of said section 22 read as follows:

“Second: Garnishees shall he summoned by the sheriff, or other proper officer, declaring to them that he does summon them to appear' at the return term of the writ, to answer the interrogatories which may he exhibited by the plaintiff, and by reading the writ to him, if required.”
“Fourth: When goods and chattels, money or evidences of debt, are to be attached, the officer shall take the same and keep them in his custody, if accessible, and, if not accessible, he shall declare to the person in possession thereof that he attaches the same in his hands, and summon such person as garnishee.”

By reading the return of the sheriff, as above quoted, it will be seen that it did not, as found by the trial court and as required by the statute, inform Carlton when and where he was to appear and answer the interrogatories mentioned in the statute; nor did said return contain a recital that the sheriff declared to Carlton that he seized or attached in his hands all debts, moneys and credits due or owing by him to said George A. Taylor, the defendant in the execution.

Those requirements of the statute are jurisdictional and mandatory, and the omission of the sheriff to inform Carlton when and where he should appear to answer the interrogatories that might be filed in the garnishment suit; and his omission to declare to Carlton that he attached all moneys, debts and credits due or owing by him to said Taylor, failed to bring him into court or to give the Greene County Circuit Court jurisdiction over him or over the subject-matter of the suit. That being true, the judgment of the circuit court rendered against Carlton in the garnishment proceedings was an absolute nullity.

This same question has frequently been before this court, and the uniform ruling has been that such a judgment is void and is subject to collateral attack. [Maulsby v. Farr, 3 Mo. 439; Norvell v. Porter, 62 Mo., 309; Gates v. Tusten, 89 Mo. 13; Feurt v. Caster, 174 Mo. 289; Anderson v. Scott, 2 Mo. 15; Cabeen v. Douglass, 1 Mo. 336.]

The judgment being void, the execution and sale thereunder were likewise void, and were inoperative to transfer the title of Carlton to Jamison, and to those who claim under him. And since plaintiff deraigns title from Carlton through the sheriff’s said deed to Jamison, that constitutes a missing link in their chain of title, which is fatal to their right of recovery in this case.

The judgment of the circuit court is, therefore, reversed and the cause remanded.

All concur, except Valliant, P. J., absent.


text:
    M. O. REED and J. R. YOUNG v. JOHN COLP, MONROE COLP and GEORGE HOUCK, Appellants.
    Division One,
    July 3, 1908.
    1. REVIVOR: Death of an Appellant. Where suggestion of death of one of three appellants (a trustee in the deed of trust sought to he cancelled) was made after the first submission of the. cause on appeal and before a resubmission after motion for rehearing allowed, and where no steps are taken to enter the appearance of his personal representative, it will be assumed that a revivor has been abandoned. Under the circumstances a revivor is not an indispensable step to a continuation of the suit in the Supreme Court against the remaining defendants.
    2. BILL OF EXCEPTIONS: Amendment: No Jurisdiction. Where the Court of Appeals had no jurisdiction over the appeal, it is precluded from taking any steps in the cause except to' transfer it to the Supreme Court, and any order it may make granting appellants leave to amend their bill of exceptions by showing that motions for a new trial and in arrest were filed and exceptions saved to the overruling of the motions, can add no additional vitality or legality to proceedings in the circuit court making such amendments.
    3. -: -: In Pursuance of Rule. A rule of court to the effect that appellants were nqt required to save exceptions to th.e rulings of the court is not sufficient to show that exceptions were saved to the action of the court in overruling the motions for a new trial and in arrest. Where no exceptions were actually saved, and the bill of exceptions recited no exceptions saved to the overruling of the motions, the trial court is not authorized to amend the hill by the fact that it had in force a rule which did not require exceptions to he saved and to the effect that exceptions were deemed to he saved to any adverse ruling of the court. Such a rule is not such a record entry as authorizes a nunc pro tune order.
    4. JUDGMENT: Sales: Cancellation: Doing Full Equity: Reimbursement For Use. Where the pleadings authorize a decree adjudging the sale of a sawmill to be fraudulent and the cancellation of the purchase notes and deed of trust given to secure them, and a reimbursement of the defendants for the use of the mill, the deciee should include not only the return of the sawmill and the cancellation of the notes and deed of trust, hut as a condition thereof that plaintiffs reimburse defendants for the use of the sawmill in the amount found by the chancellor to be the reasonable value for such use.
    Transferred from St. Lonis Court of Appeals.
    Reversed and remanded (with directions).

      L. R. Thomason and Martin L. Glardy for appellants.
    (1) A bill of exceptions, when filed, constitutes a part of tbe record, and may be amended by tbe court at tbe term, or any subsequent term, as any other part of tbe record may be amended, to correspond with wbat, in fact, occurred. Elliott, App. Proc., sec. 825. It bas been properly said that tbe proceeding for tbe correction of a record is curative ratber than creative, and that tbe theory is that tbe ruling involved was actually made, but not' properly entered. It is when tbe record does not express wbat took place in tbe court that it may be amended to correspond with tbe facts. The rule as to tbe amendment or correction of bills of exception does not essentially differ from tbe rule which prevails in other cases where tbe amendment or correction of a record is sought. Elliott’s Appellate Procedure, secs. 212, 213, 214, 219; Leiferts v. State, 6 Atl. 521; Morse v. Woodworth, 27 N. E. 1010; Harris v. Tomlinson, 30 N. E. 214; Martin v. Railroad, 13 S. W. 765. Respondents appeared at the .hearing of the motion to amend the record, and the record does not show that they entered any objection to the action of the court in making the amendments to correspond with the facts, or that they took any steps to have that action of the court reviewed by this court. (2) Even if there had been no bill of exceptions filed in the case, the judgment is erroneous upon the face of the record, as the judgment is not in accordance with the finding of the court. It appears that the court made a finding that defendants were entitled to $150' for rent of the mill which finding is ignored in the judgment of the court.

      Mosley ds Wammach for respondents.
   LAMM, J.

This is a suit in equity to enjoin a sale under a deed of trust upon real estate belonging to plaintiffs and situate in Stoddard county, Missouri, and to cancel the notes secured thereby as void by reason of fraud and misrepresentation moving in their execution, and to remove the cloud upon plaintiffs’ title arising from the record lien of said deed of trust. Defendants are the trustee, Plouck, and the beneficiaries in the deed of trust, to-wit, John and Monroe Colp, doing business as the Colp Lumber and Machine Company.

The decree was for plaintiffs and defendants appeal.

At the April term of this court, 1906, the cause was submitted on argument and briefs. At its October term, 190'6, an opinion was handed down, but a rehearing was granted. At the October term, 1907, counsel suggested the death of Mr. Houck and the cause was continued to the April term, 1908. At said April term it was resubmitted on the same briefs.

The petition sets forth that the notes were given •for plaintiffs’ purchase of a sawmill from the Colps, and the false representations (alleged with a scienter, and relied on in the dicker and sale), relate to the sawing capacity, the newness and market value of said mill.

Among other things, it is alleged that on discovering the covinous contrivances of the Colps in and about the sale and the deceit practiced in false representations leading up to it, plaintiffs offered to rescind the contract and to return the sawmill and its appurtenant machinery in as good condition as when received and to pay defendants a reasonable price for its use, demanded their notes, and the satisfaction of the deed of trust securing the same, and that defendants refused the offer. Further, the petition states that: “Plaintiffs now here in court offer to redeliver to defendants said sawmill and all machinery in connection therewith in as good condition as when received by plaintiffs.”

Denying the fraud and affirmatively pleading other matter not in point for our present purpose, the answer avers that plaintiffs have leased said mill to parties named and have collected the rent for their own use and benefit.

In its decree, the trial court found the allegations of the petition to be true (setting them forth), found further that: “Plaintiffs in court offer to deliver said sawmill in as good condition as received and pay a reasonable price for use of said sawmill. That a reasonable price for use of said sawmill was $150'.” The decree then continues as follows: “The court therefore decrees that defendant take this said sawmill, deliver up for cancellation said deed of trust and $1,800 note, together with the two $600 notes and that same be cancelled, that same are void and of no effect, that the cloud upon plaintiffs’ title to said real estate be and is hereby removed, that defendants take nothing for said notes and deed of trust and that the costs of this suit be adjudged against defendants.”

For reasons appearing later, the facts need not be stated. A sufficient statement to make intelligible questions of practice determined will appear in the body of the opinion.

I. The suggestion of the death of one of appellants, was made after the first submission and before the resubmission. No steps having been taken to enter the appearance of his personal representative, we shall assume that a revivor has been abandoned. Under the circumstances noted, a revivor is not an indispensable step to a continuation of a suit in the Supreme Court where one out of several appellants dies. [R. S. 1899, secs. 856-7.] Statutes somewhat similar were under exposition in Prior v. Kiso, 96 Mo. l. c. 315, et seq., and that was the conclusion reached whether the statutes or the common law controlled. [See, also, Hunleth v. Leahy, 146 Mo. 408.]

II. The appeal in this cause was granted to the St. Louis Court of Appeals. On submission there, that court handed down the following opinion:

“The object of the suit is to set aside a deed of trust to land on the alleged ground of fraud in its procurement. Such a suit directly involves title to real estate within the meaning of the Constitution defining the jurisdiction of the Supreme Court. [Nearen v. Bakewell, 110 Mo. 645; Overton v. Overton, 131 Mo. 559; Scheer v. Scheer, 148 Mo. l. c. 448; Bonner v. Lisenby, 73 Mo. App. 562.] For the reason, therefore, that the jurisdiction of the subject-matter of this suit is by the Constitution of the State vested in the Supreme Court, the cause is transferred to that court. ’

On the strength of that opinion, the cause came here.

While pending in the St. Lonis Court of Appeals, it seems appellants there applied for and were granted leave to apply, nisi, to amend the bill of exceptions, so as to show for the first time the motions for a new trial and in arrest and that exceptions were saved severally in overruling them. At all events, we find among the papers a transcript of entries made on proceedings had on March 19, 1902, in the Stoddard Circuit Court, several terms after the appeal was granted and the original bill of exceptions was settled and filed, which seek to justify themselves by such leave. That transcript, omitting caption and certificate, follows, toticlem verbis:

“Whereas appellant in the above-entitled cause did on heretofore, to-wit, the 10th day of March, A. D. 1902, file in the St. Louis Court of Appeals their application for leave to amend their bill of exceptions filed in this cau'se on heretofore, to-wit, August the 8th, 1901, and whereas the St. Louis Court of Appeals on the date aforesaid did grant leave to appellant to apply to the circuit court of Stoddard county, Missouri, to correct and amend said bill of exceptions filed by appellants as aforesaid so as to show that appellants file their motion for new trial and in arrest of judgment and took and saved their exceptions to the order of the court in overruling of said motion, provided that said court should further find from competent evidence that said motions were in fact filed and that said exceptions were in fact taken and saved by appellants:

“And whereas appellants have this day, to-wit, the 15th day of the March term of the circuit court of said Stoddard county, Missouri, presented their application for leave to amend their bill of exception in the manner and form aforesaid and both parties appearing by their attorneys said application being by the court taken up and the court-being fully advised doth find from the record that appellants on May the 30th, 1901, filed their motion for a new trial and in arrest of judgment and that on the date aforesaid said motions were by the court overruled and that appellants did take and save their exceptions to the actions of the court in overruling of their said motion and that by virtue of a rule of the circuit court of said Stoddard county appellants were not required to save their exceptions to the action of the court in overruling of their motion for a new trial and in arrest of judgment by matter of record, as under and by virtue of said rule all exceptions to the action of the court on such motions are deemed to be saved, which said rule was in force at the time of the action of the court in overruling of the motions for a new trial and in arrest of judgment filed by appellant in the above cause, but said exceptions were saved by appellants.
“Wherefore the application of appellants to correct their bill of exceptions is hereby sustained and leave granted appellants to correct said bill and said bill is corrected by adding thereto pages number 49, 50, 51 and the same is ordered made a part of the record in said cause as of the date of the filing of said bill showing the filing of such motions for new trial and arrest of judgment, the overruling of said motions and the exceptions by appellants to the action of the court:”

The original bill of exceptions not only failed to contain exceptions saved to the overruling of the motions for a new trial and in arrest, but made no call for the motions.

The record entries in the original transcript showed motions for a new trial and in arrest were filed and overruled. They stopped short at that point, and properly so. However, in an additional transcript here, there are several pages which, though not numbered, we construe to be the “ 49-50-51” referred to in the transcript of the proceedings of March 19, 1902, supra. These additional pages embody the motions for a new trial and in arrest, and set forth entry rulings on those motions so reconstructed as to show that exceptions ivere saved to overruling them. It is plain that this showing sprang into record life as part and parcel of the general scheme to amend.

On this record, the following observations are due:

(a) In the first place, the proceedings of the Stoddard Circuit Court on March 19, 1902, can receive no additional vitality or legality from the leave narrated therein as granted by the St. Louis Court of Appeals. This, for the obvious reason that the Court of Appeals was precluded from taking any steps in the cause except to transfer it to this court. Its own record shows it had no jurisdiction, and such is the fact. The order granting leave was, therefore, coram non judice.

(b) In the next place, attending.to the proceedings, nisi, subsequent to the appeal, it appears that record entries overruling the motions for a new trial and in arrest were reconstructed by enlargement so as to show that exceptions were saved to the action of the court. The saving of an exception by a record entry is without vitality for appellate use. It has always been held that an exception cannot be saved in that way for service on appeal. It must be saved in a bill of exceptions.

If the original entries had shown that exceptions were saved (even though such exceptions had no place there) a different question might be here. In such hypothetical condition of things, we shall not hold that the court might not have seized upon such entries as evidence of the 'saving of exceptions, and have used them as proper data to correct the bill by a nunc pro tunc entry. But no such question is here. Here the record entries showing the saving of exceptions were manifestly made subsequent to the settling and filing of the original bill, and (as said) were mere parts of the general scheme to amend.

(c) In the next place, from the character of the record entry of July 19, 1902, amending the bill of exceptions, it is seen to bear internal evidence of having been prepared by counsel. Subjecting it to a just analysis, it appears therefrom by necessary implication that the sole reliance of the court for the amendment inserting exceptions, was a, standing rule of court to the effect that it was not necessary to save exceptions to such ruling — that per contra, they were deemed to be saved (i. e., they saved themselves spontaneously).

If the entry in question had omitted all reference to the rule and had baldly found that the records of the court showed such exceptions were saved, then a somewhat different question might be here. In such case, by a plenary stretch of abounding judicial grace, extending quite to the fringe of things, there might be a faint presumption that proper contemporaneous data in minutes of clerk, judge or files existed and were put in evidence showing the saving of the exceptions, and furnishing a legal basis for a nunc pro tunc entry. But we do not decide the point. It is not clear to us how such data would reasonably exist. In State v. Gfartrell, infra, this court doubted the possibility of their existence, saying in that behalf that: “It is too plain for argument that unless parol evidence could be resorted to there was nothing to show that such exception was taken, and when the bill of exceptions was filed and the term had lapsed, the record became a finality which neither court nor counsel, even by stipulation and consent, could change.”

But the reference in the amending entry to the rule of court is of such sort as to entirely preclude such presumption; for the court bases the entry solely on the rule'itself.

Of such a. rule, we had this to say in Green v. Terminal R. R. Assn. of St. Louis, 211 Mo. l. c. 34:

“That ruling [to-wit, a ruling that exceptions are presumed to be taken to all. adverse rulings, though not noted at the time] is of doubtful value in the trial of a case, and ought to be of no force at all in an appellate court. Obviously, when á case reaches the point where a bill of exceptions is to- be made, all exceptions intended to be relied on should be inserted in the bill. They cannot be hid under the cloak of an arbitrary- presumption indulged below, and be got at by inference.”

In this case the trial court by indulging in an arbitrary presumption arising as a quasi inference from a standing rule, altered a bill of exceptions in a vital matter. Analyzing that action, it will be seen that if the court was aided by memory it fell into a vat of error. So, if it relied on oral testimony, it so fell. But, as said, the entry conclusively shows that it relied on its rule. We are cited to no case holding that such amendment may be made as the result of mere argument and deduction from a standing rule, nisi. The good sense of the thing is strongly against that. To adopt that theory would open the -door for all sorts of mischief to enter; for thereby an exception never made and never intended to be made could be read into the original bill — possibly on the inapplicable doctrine that equity considers that done which should have been done.

No one questions the abstract right, nisi, to correct a bill of exceptions by a nunc pro tunc entry. It has been steadily held that though a trial court has lost jurisdiction of a cause by appeal, it still retains enough jurisdiction of its record to make it tell the truth by such entry, keeping always in mind the sharp-limitations on the right to make such entries. [Jones v. Ins. Co., 55 Mo. l. c. 344; Exchange National Bank v. Allen, 68 Mo. 474; DeKalb County v. Hixon, 44 Mo. l. c. 342; State v. Logan, 125 Mo. l. c. 25.] In Ross v. Railroad, 141 Mo. 390, the limitations on the power to make nunc pro time entries correcting a hill of exceptions were considered in the light of an array of cases reviewed. The sum of the matter was held to he that such correction could not be based on the memory of the judge nor on parol proof derived from other sources, nor on affidavits; hut that to include an exception in an original hill of exceptions hy way of ■ amendment it must appear from the record of the cause either in the hill itself or in the judge’s or clerk’s minutes, or the stenographer’s notes, or some paper in the case that such exception was made and saved at the very time.

State v. Gartrell, 171 Mo. 489, was a murder case. There, with the consent of the Attorney-General, the hill of exceptions was amended hy a nunc pro tunc entry and, after discussing the right of the court to amend its record during the term and while its proceedings are in -fieri, Gantt, P. J., continuing, said: “But after the lapse of the term, or its final adjournment, the judge has no power to change the record further than by nunc pro tunc entries to make the record speak the exact truth of that which actually did occur during the term, and then only when there is sufficient record of minutes of the judge or clerk to authorize such amendment, as it has been repeatedly ruled hy the court that such corrections cannot he made 'from outside evidence or from facts existing alone in the breast of the judge, after the end of the term at which the final judgment was rendered.’ [Citing cases.] It is true that the power of the court over its own records for the purpose of amending, correcting and completing the same is not affected hy the fact that an appeal has been taken from its judgment. [Citing eases.] These are fundamental principles, and again and again it has been decided by this conrt that when the period (beyond the trial term) granted by the conrt in which to file a bill of exceptions has expired, neither the conrt nor the judge in vacation can extend it, and what purports to be a bill of exceptions filed in pursuance of such a void order will not be considered by this court.” [Citing cases.]

Now, it is too plain for question that what was done in this case had the effect of merely extending the time for filing a bill of exceptions after the date fixed had passed, a thing that cannot be done. [State ex rel. v. Gibson, 187 Mo. l. c. 549, et seq.] It was loosely concocting a bill of exceptions on what plaintiffs not inaptly call “the installment plan.” [See Priddy v. Hayes, 204 Mo. 358.]

The premises all considered, we hold that, as the original bill of exceptions neither contained the motion for a new trial or in .arrest nor any call for such motions (see R. S. 1899, sec. 860), and as it contained no exception to the overruling of those motions, and as the amendment to the bill was improvidently made, we cannot consider any matter of exception. In effect, then, the bill of exceptions is so much waste paper. It results from this view that we may consider only the record proper.

HI. Attending to that, the petition states a cause of action. In effect, the pleadings bring, the matter of reimbursing the Colps for the use of the sawmill before the chancellor. The decree shows that in open court plaintiffs offered such reimbursement as the price of their decree. The chancellor held on that issue that the use of the mill was of the reasonable value of $150, but, by inadvertence, the decree, though it adjudged that the Colps take the sawmill, omitted to adjudge to them the.payment of said sum of money. We perceive no good reason why defendants should be dismissed from a court of equity without a decree giving them what the record proper shows is their equitable due. "Why put them to another suit to enforce a right-determined by this when equity has jurisdiction to end the matter?

Accordingly, the cause is reversed and remanded with directions to the lower court to enter a decree in favor of plaintiffs for the return and cancellation of the notes in question (describing them) and for the cancellation of the deed of trust (describing it) and removing the record cloud from plaintiffs’ title and to adjudge that defendants, the Colps, not only take back the mill, but have and recover from plaintiffs the said sum of $150, as the price of their decree — the costs, nisi, to go against the Colps.

All concur except Vallinnt. P. J., absent.