text:
    GARDNER T. VOORHEES, Appellant, v. LOUISIANA PURCHASE EXPOSITION COMPANY.
    Division One,
    May 31, 1912.
    1. PLEADING: Three Ameded Petitions: Motion to Strike Out. Plaintiff will not be turned out of court unless three petitions have been adjudged wholly insufficient. If any be attacked by motion to strike out parts of it, and enough of it remains, after that motion is sustained, to state a cause of action, it is not to be adjudged “insufficient” within the meaning of the statutes (Secs. 1824, 1825 and 1826, R. S. 1909). And if, not counting it, only two have been held insufficient, a third cannot be stricken out unless it fails to state a cause of action. So that where a demurrer was sustained to plaintiff’s original petition, and the court sustained a motion to strike out certain portions of his first amended petition and overruled a demurrer to what remained, and plaintiff thereupon voluntarily filed a second amended petition, to which a demurrer was sustained, a motion to strike out a third amended petition and to assess treble costs cannot be sustained unless it fails to state a cause of action; but if it fails to state a cause of action and a demurrer thereto was properly sustained (in other words, if the original, the second amended and the third amended petitions were wholly insufficient), then a motion to strike out the third amended petition, and to render judgment for defendant, including treble costs, must be sustained.
    2. -: -: Prior Petitions Abandoned. Petitions to which demurrers have been sustained are, by the filing of subsequent amended petitions, considered waived and abandoned; . and, in determining the sufficiency and number of such subsequent amended petitions, they are considered properly ruled.
    3. -: Cause of Action: Contract of Employment: Enhanced Reputation as Consideration: Loss by Abandonment of Plan: Third Petition. A petition which states that the plaintiff was a refrigerating engineer, and that defendant was a corporation organized for the purpose of holding the World’s Pair at St. Louis and for promoting improvements in arts, sciences, industries and manufactures; that, in pursuance to a contract of employment, he submitted to defendant a plan of installing a refrigerating system for said exposition at an estimated cost of $600,000, and agreed to perform services in perfecting such plan that would take him two or three years to complete, at an annual salary of $5000 a year, but agreed to that compensation in consideration of the fact, agreed to by defendant, that his achievements, if accomplished according to the terms of the contract and the plan proposed, would give him a great and valuable reputation throughout the country and probably other countries, which reputation would more than compensate him for the loss of time devoted thereto and taken from his regular business; that defendant, by said contract of employment, reserved the right to alter and change said plan of refrigeration as it might deem proper, and that the agreement was that, if defendant should exercise that right to such an extent as to practically destroy the original plan of refrigeration, defendant was to pay him, in lieu of an annual salary of $5000, five per cent of the estimated cost of the refrigerating system as originally contemplated; that defendant did so change the plans of the refrigeration as to render plaintiff’s services no longer needed, and he was in consequence discharged by defendant; and that by reason of such change in the plans much of plaintiff’s valuable time was lost from his regular business, and he was prohibited from building up the reputation of a refrigerating engineer which it was agreed he would have done had he been permitted to carry out his part of the agreement, and that by reason thereof he is entitled to recover five per cent of said estimated cost, states a cause of action, and the trial' court erred in sustaining a demurrer thereto; and these allegations being stated in a petition filed after only two others had been adjudged insufficient, the court also erred in sustaining a motion to strike it out.

      4. -: -: Prolix Pleading: Unusual Contract. The court will not hesitate to declare null and void a contract so indefinite, uncertain and ambiguous that the court is unable to ascertain from its provisions what its meaning is or what its agreements are; and a petition asking for a recovery on such a contract will be held not to state a cause of action. But a demurrer to the petition will not be sustained simply because it is prolix and inartificially drawn, or because the contract is singular and unusual.
    Appeal from St. Louis City Circuit Court. — Hon. G. H. Williams, Judge.
    Reversed and remanded.

      Bchnurmacher <& Rassieur for appellant.
    (1) Under the code, the plaintiff -will not be turned out of court unless three petitions have been adjudged wholly insufficient. If any be attacked by motion to strike out parts, and enough remains to state a cause of action, it is not adjudged “insufficient,” within the meaning of the statute. Tool Co. v. Spring Co., 122 Mo. App'. 603. In the case at bar only two petitions were adjudged wholly insufficient, the first and third petitions filed by the plaintiff,- the second, which is designated in the record as the first amended petition, was expressly held good on demurrer, after certain parts thereof had been stricken out on motion of defendant, and plaintiff’s third petition, designated in the record as the second amended petition, was voluntarily filed by him. Therefore the court erred in striking plaintiff’s third amended petition from the files and the judgment entered should be reversed. (2) If the third amended petition was properly excluded, this court should still review the action of the lower court in sustaining the demurrer to the second amended petition — the lást proper petition in the case; if that petition states a cause of action, the lower court erred in sustaining a demurrer thereto, and this court should reverse the case. Tool Co. v. Spring Co., 122 Mo. App. 603; Scott v. Taylor, 231 Mo. 654. (3) The second amended petition states a cause of action.

      Joseph II. Zumbalen and Henry T. Ferriss for respondent.
    (1) The court properly ruled that three petitions had. been adjudged insufficient and entered judgment accordingly. R. S. 1909, secs. 1824,1825,1826; Beards-lee v. Morgan, 73' Mo. 22; Sidway v. Land Co., 197 Mo. 359; 163 Mo. 342; 187 Mo. 649; Scott v. Taylor, 231 Mo. 654. (2) Appellant waived the alleged error of the court in sustaining the demurrer to the second amended petition by pleading over and filing a third amended petition. Bobb v. Bobb, 89 Mo. 411; Ross v. Land Co., 162 Mo. 317; Ingerson v. Railroad, 205 Mo. 328; Diener v. Star Chronicle, 232 Mo. 416. (3) The question whether the third amended petition states a cause of action is not properly before this court. (4) Neither the second nor the third amended petition states a cause of action. Beach on Contracts, sec. 72; Lawson on Contracts, sec. 11; 9 Cyc. 248, 249; Lingenfelder v. Brewing Co., 103 Mo. 578; Burks v. Stam, 65 Mo. App. 455; Price v. Atkinson, 117 Mo. App. 52; Price v. Wiesner, 31 L. R. A. (N. S.) 927; YanSlyke v. Ins. Co., 115 Cal. 644; Marble v. Oil Co., 169 Mass. 553; Blake-stone v. Bank, 87 Md. 302; Faulkner v. Drug Co., 117 la. 120; Leonard v. Carter, 16 Wis. 607; Davie v. Mining Co., 93 Mich. 491; Delashmutt v. Thomas, 45 Md. 140.
   WOODSON, J.

This was a suit instituted in the circuit court of the city of St. Louis, on November 23, 1904, by the plaintiff against the defendant, to recover the sum of $25,000 damages or compensation, for an alleged abandonment of a contract for services to be performed by the former for the latter as' a refrigerator engineer.

There were foiir petitions filed in the case; the original, and the first, second and third amended petitions.

The defendant filed a demurrer to the original, which was by the trial court sustained.

The plaintiff then filed the first amended petition, to which .plaintiff filed a motion to strike out certain parts thereof, which was by the court sustained. The defendant Thereupon filed a demurrer to thé remainder of this petition, which was by the court overruled. But nevertheless, plaintiff then voluntarily filed the second amended petition, to which defendant demurred, which was by the court sustained.

Plaintiff then filed the third amended petition, and the defendant filed a motion to' strike it out,, which was by the court sustained. .

The plaintiff then, filed a motion for treble damages and judgment, which was also sustained -by the court.

In due course and in proper form the plaintiff appealed to this court.

All of the petitions are quite lengthy, each covering some four or five closely printed pages; and for that reason it would unnecessarily elongate the statement of the case to copy all of them. I will, however, copy the third amended petition, and indicate by itab ics, the principal differences between it and the second amended, viz.: .

“Plaintiff, for his third amended petition, states that the defendant is, and at the times hereinafter stated whs, a corporation organized under the laws of Missouri, in accordance with the provisions of article 18 of chapter 12 of the Revised Statutes of Missouri and the acts amendatory thereof, for the purpose of inaugurating and holding an international or World’s Fair Centennial Eixposition .in the State of Missouri, commemorative and in celebration of the centennial anniversary of the Louisiana Purchase, an historical event in the development of the United States, and for the purpose of promoting improvements in the arts and sciences, professions and trades, by the exhibition of products of the arts, industries and manufactures, and of the soil, mine and sea, and for kindred purposes.

“Plaintiff states that he is by profession an engineer, following the science of mechanical refrigeration as a specialty, and for a number of years has been engaged in the city of Boston and other parts of the United States, in the practice of his profession as á refrigerating, consulting and contracting engineer.

‘ ‘ That heretofore, on or about the 31st day of December, 1902, at the previous request of the defendant corporation, and for a consideration agreed upon and to be paid to him, he submitted to the defendant, for its said Exposition to be held in the city of St. Louis, a report of a representative refrigerating exhibit, to be made up collectively of exhibits of different styles and kinds of refrigerating machines of various manufactures of such machinery and embracing refrigeration as applied to ice-making, cold storage, cooling concessions, cooling of restaurants and.cooling of amusement places or theaters; and which report also showed how cooling should be applied and distributed, and the general arrangement of the exhibit as suited to the interests of the Exposition and the interests of the exhibitors of such refrigerating machinery. That the report so submitted embraced suggestions for an exhibit of refrigerating machinery of a capacity of sixteen hundred tons of refrigeration per day. That in accordance with said report, the exhibitors were to install their said machinery at their own cost and expense, and the same was to be operated for the benefit and profit of the defendant, during the "World’s Fair period; and according to the plan and scope of the exhibit as suggested in said report, the defendant was to furnish the necessary foundations and buildings and such necessary auxiliaries, apparatus and supplies as could not be secured as exhibits for the purpose aforesaid, and to do certain installation work required in connecting the various machines, at an approximate cost of $150,000, while the machinery and plant so to' be constructed and installed were to be of the value of at least $500,000.

“Plaintiff further states that the suggestions contained in said report were, with some modifications, adopted and approved by the defendant corporation, and the defendant agreed to employ the plaintiff as its chief of refrigeration, to secure exhibits and to plan for and superintend the building of such plant, under and pursuant to the following agreement, entered into between them;

“That in view and in consideration of the advantages and benefits which would accrue to plaintiff in the performance of his services in the premises, and the prestige and reputation that he would acquire as a refrigerating engineer, it was agreed between them (plaintiff and defendant) that plaintiff should accept said employment at a salary at the rate of five thousand dollars per annum, payable in equal monthly installments, instead of the usual reasonable compensation for such services, which ordinarily, then was and still is (if the engineer is permitted to devote the ' necessary time to it to plan the work), five per cent of the cost or value of all materials used and labor required to install said materials (exclusive of the cost or value of the ground upon which the materials are installed); and it was further agreed, as a further consideration for, and as part of, their said contract of employment, that in the event the defendant should abandon such exhibit, after plaintiff had devoted the necessary time to it to plan for the same, defendant should pay plaintiff an equitable sum in settlement of his loss and damage, which, it was then and there agreed, should include compeasation to plaintiff at the rate of five per cent of the cost or value of said refrigerating exhibit, so to be erected and installed, in lieu of salary at the rate of $5000 per annum as aforesaid, and a further sum sufficient to compensate him for the injury which would result to him in consequence of his profession during the period while he was in defendant’s employ as aforesaid; it being understood by the. parties at that time that plaintiff was then regularly earning about $5000 per annum from his general consulting and contracting practice, and that if plaintiff accepted such employment his clientage and opportunities for making such earnings in general practice would become lost to him, and that several years of labor on his part would be required to again gain and establish a general practice, .with earnings such as enjoyed by him at the time the contract with defendant was entered into.

“Plaintiff further states that he accepted such employment, upon the terms aforesaid, and entered upon the duties thereof, and devoted to the same the necessary time to plan for such exhibit and performed all duties, in so far as the defendant permitted the same, which were required of him in the performance of the work which he had undertaken; but plaintiff states that subsequently, to-wit, on or about the-day of January, 1904, the defendant, without plaintiff’s consent, abandoned altogether the project of having such representative refrigerating exhibit, although the plaintiff had devoted the necessary time to it to plan for the same, and the defendant contracted with a single manufacturer of refrigerating machines for a non-competitive exhibit or concession, and by contract gave to the said manufacturer the exclusive right and concession to sell all ice and refrigeration on the World’s Fair grounds during the World’s Pair period, and the defendant put it out of its power to have any representative refrigerating exhibit to be constructed under the plans of plaintiff, as theretofore agreed with Mm, and notified Mm accordingly, but kept the plaintiff in its employ until tbe 5th day of March, 1904.

“Plaintiff further states that in order to properly perform said duties, plaintiff devoted his time almost exclusively to the business of defendant, and, in consequence thereof, he was taken from the general practice of Ms profession during the period while he was in defendant’s employ as aforesaid, and his clientage and opportunities for earning at least $5000' per annum in his general practice have become lost to him, and several years of labor on his part will be required to again gain and establish a general practice, with earnings such as were enjoyed by him at the time the said contract with defendant was entered into. And plaintiff states that the damages so sustained by him in the several particulars aforesaid amount to at least twenty-five thousand dollars, and defendant has failed and refused to pay the same to plaintiff.

“Wherefore,.plaintiff prays judgment against defendant for said sum of twenty-five thousand dollars and for his costs.”

The only practical difference that exists between the second and- third amended petitions, and the original and first amended, consist of a somewhat fuller statement of some of the terms of the alleged contract, but those differences in no manner change the general character of the cause of action attempted to be stated.

The motion to strike out the third amended petition is in words and figures as follows:

“Now comes the defendant in the above-entitled cause and moves the court to strike from the files herein the third amended petition filed by the plaintiff on December 21,1908, and for grounds of its motion states the following:

“1. Said third amended petition does not differ in any material manner from the second amended petition filed by the plaintiff herein, said second petition having heretofore been adjudged insufficient and the defendant’s demurrer thereto having been sustained on November 19, 1908; said third amended petition is therefore frivolous, impertinent and in contempt of court, and should therefore be stricken from the files.

“2. Plaintiff has no right to file any pleadings after the defendant’s demurrer to the second amended petition was sustained, for the reason that said second amended petition was the third pleading of plaintiff to have been adjudged insufficient, and defendant was thereupon entitled to judgment in its favor on the case and plaintiff became liable for treble costs.”

This motion as before stated was sustained; also was the motion to assess treble, damages and for judgment.

The judgment rendered upon the latter motion and from which the appeal was taken is as follows:

“Now at this day come the parties hereto by their respective attorneys, and submit to the court the defendant’s motion to assess treble costs against plaintiff and for judgment heretofore filed herein, and the court having duly considered the same, and it appearing to the court that the third petition has been adjudged insufficient by this court, it is ordered that said motion be and is hereby sustained.

“Wherefore, it is considered and adjudged by the court that the plaintiff take nothing by his suit in this behalf and that defendant go hence without day; that plaintiff pay treble costs herein and that execution issue therefor.”

I. The first insistence of counsel for appellant is stated in the following language, viz.:

“Under the Code, the plaintiff will not be turned out of court unless three petitions have been adjudged wholly insufficient. If any be attacked by motion to strike out parts, and enough remains to state a cause of action, it is not adjudged ‘insufficient,’ within the meaning of the statute.”

In order to have a clear conception of the questions presented for determination, it will be well to keep in mind the statutes governing this matter, which are as follows:

“Sec. 1824. When a petition, answer or reply shall be adjudged insufficient, in whole or in part upon demurrer, or the whole or some part thereof stricken out, on motion, the party may file a further like pleading within such time as the court shall direct; and in default thereof, the court shall proceed with the cause in the same manner as if no such original pleading had been filed. [R. S. 1899, sec. 621.]

“Sec. 1825. If such second petition, answer or reply be filed, and in like manner be adjudged insufficient, or the whole or some part thereof in.like manner stricken out, the party filing such second pleading shall pay double costs, and file a like pleading instanter; or in default thereof, the court shall proceed with the cause in the same manner as if no second'pleading had been filed. [R. S. 1899, sec. 622.]

“Sec. 1826. If a third petition, answer or reply be filed and adjudged insufficient as above, or the whole or some part thereof be stricken out, the party filing such pleading shall pay treble costs; and no further petition, answer or reply shall be filed, but judgment be rendered.” [R. S. 1899, sec. 623.]

Counsel for appellant, in support of their insistence, cite and rely upon the case of Roth Tool Co. v. Spring Co., 122 Mo. App. 603.

This case clearly holds that after two petitions had been adjudged insufficient on demurrer, a motion to strike out portions of the third amended petition was sustained, leaving sufficient allegations to constitute a cause of action, the plaintiff had a right to proceed to trial and that it was error to dismiss the cause and assess treble damages under said section 623; and that sections 621, 622 and 623 only apply when the motion or demurrer destroys the entire pleading.

Counsel for respondent do not seem to question the soundness of the foregoing rule announced by the Court of Appeals, and it seems to us that it correctly states the law upon that question.

Evidently the Legislature did not intend for the courts to strike out the pleading entirely, where the remaining allegations of the petition were sufficient to' constitute a cause of action, after the demurrer or motion to strike out had been sustained. In our opinion, the design of the Legislature was, that where the demurrer or motion to strike out went to the whole of or to such parts of the petition, which if sustained would destroy the cause of action stated therein, then and. only then do said statutes authorize the assessment of treble damages and the rendition of judgment in favor of the moving party.

Counsel for respondent contend, however, that, even though the first amended petition should be eliminated from the case, as contended for by counsel for appellant, nevertheless there still remain three petitions, namely, the original, the second amended and: the third amended, which have been adjudged wholly insufficient by the trial court, and consequently, the court properly, under the plain mandate of said sections of the statutes, assessed treble damages against the appellant and rendered judgment in favor of the respondent.

If the three petitions mentioned fail to state facts sufficient to constitute a cause of action, then clearly the court correctly assessed the damages against the plaintiff and rendered judgment in favor of the defendant. That exact question was decided in the case of Scott v. Taylor, 231 Mo. 654, and cases cited.

II. The only remaining question for determination is the correctness of the trial court’s ruling in holding the original, first amended and third amended petitions bad.

As regards the original and first amended, it is sufficient to say that they are- not properly before the court for consideration, for the reason that they were waived and abandoned by appellant by his pleading over. [Bobb v. Bobb, 89 Mo. 411; Ross v. Land Co., 162 Mo. 317; Ingwerson v. Railroad, 205 Mo. 328; Diener v. Star Chronicle, 232 Mo. 416.] We must therefore presume that the trial court properly ruled on those two petitions.

Regarding the third amended, or the last petition filed: It seems to me that it undertakes to state, that the appellant made and entered into a contract whereby he agreed to perform the services mentioned in the petition, which in the very nature of things would have ■taken him two or three years to perform, for and in consideration of a salary at the rate of $5000 per annum, payable monthly in equal installments; and that it was further agreed that his services were really worth far more than the $5000 a year, but in consideration of the facts agreed to, that his achievements, if accomplished according to the terms of the contract, would have given him a great reputation as a refrigerating engineer throughout the United States, and probably other countries, which fact would have drawn to him other business of like character, which would more than have compensated him for the loss of time devoted thereto and taken from his regular business; that the respondent, by said contract, reserved the right to alter and change said plan of refrigeration as it might deem proper, and that in case it should exercise that right to such an extent as to practically destroy the original plan of refrigeration, then it was the agreement to pay him, in lieu of an annual salary of $5000, five per cent of the estimated cost of the buildings and plant, as originally contemplated, which was about $600,000'; that the respondent did so materially change the plans of the refrigeration as to render appellant’s services as a refrigerating engineer no longer needed, and was consequently discharged by the respondent; and that by reason of such change of the plans, much of appellant’s valuable time was lost from his regular business, and he was prohibited from building up the reputation as a refrigerating engineer, which it was agreed he would have done, had he been permitted to carry out his part of the agreement; and that by reason thereof, it is charged appellant is entitled to recover the five per cent of the estimate cost of the buildings and of the refrigeratian plant, which sum, it was agreed, was a fair and equitable compensation for his loss of time, and failure to build up the reputation mentioned in the contract. In other words it was in effect stipulated damages.

Counsel for respondent insist that this contract is so uncertain, indefinite and ambiguous, that no court or jury can intelligently comprehend its meaning, and it must for that reason be held null and void.

They cite many authorities in support of that legal proposition.

There can, at this late date, be no doubt, but what when a contract is so uncertain or indefinite in its provisions that the court is unable to ascertain therefrom the meaning or the agreement of the parties thereto, then the courts will not hesitate to declare it null and void. This is a sound principle of law, and is predicated upon the idea, that the parties themselves, and not the court, must make their own contracts and agreements.

But does this contract fall under the bane of that wise rule? I think not. Briefly stated it provides that respondent was to receive a salary of $5000 a year for the services he agreed to perform, which was much less than they were actually worth; that if the plans of refrigeration were so changed as to not require his services during the years which it would have taken him to perform, had the original plans been carried out, then his salary of $5000, was to be no longer paid, but in lieu thereof he was to receive five per cent of the estimated cost, not for the services, which from that time on were never to be performed, but for the loss of time from his business, which it was agreed was worth a sum far in excess of the $5000, which loss, it was thought and agreed, would be compensated by the good reputation he would have built up for himself as a refrigerator engineer, had the plant been constructed as originally contemplated; but by changing the plans, appellant not only lost said valuable time from his business, but was also prevented from building up a national reputation as0a refrigerator engineer, which by the terms of the contract, as stated in the petition, were worth to the respondent the said five per cent, or $25,000, in the aggregate, as liquidated damages.

While the petition is somewhat prolix and inartificially drawn, nevertheless, when boiled down to the real heart of the agreement, there remains no ambiguity or uncertainty about it. While it is true, it is a very singular and unusual contract, nevertheless, it is definite and certain in its terms, and can be understood by any ordinary mind.

The unusual character of the contract is a matter to be addressed to the jury, and not to the court. But in passing, we might facetiously add that, if learned counsel have as much difficulty in proving the contract as they had in stating it in the petition they will unquestionably earn their fee.

Viewing the case in the light of the foregoing observations, we are of the opinion that the third amended petition filed states a good cause of action, and was not subject to a successful attack to strike out, for the reason that the first amended petition was not adjudged bad by the circuit court, and as before stated, we. are of the opinion that the trial court erred in holding the third amended petition bad.

That leaves only two petitions, the original and the second amended, which the trial court correctly adjudged insufficient to state a cause of action.

That being true, the sections of the statute previously quoted have no application, for the reason that by the express terms thereof three petitions must first be adjudged bad before the motion will lie.

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

All concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    REBECCA CULBERTSON et al. v. W. C. EDWARDS et al., Appellants.
    Division One,
    May 31, 1912.
    1. SHERIFF’S SALE: In Solido: Delay: Subsequent Purchasers: Non-residents. A sheriff’s sale of a section of land in bulk, will not be set aside on that ground if the defendants were not purchasers at said sale and had no knowledge that the sheriff had abused his discretion in selling in bulk and no seasonable application is brought to set the sale aside. And a delay of twenty-three years is not excusable on the ground that the owners at the time of the sale and up until their death were non-residents and the present plaintiffs (their heirs) have at all times been non-residents and brought suit to set the sale aside as soon as they heard of it.
    2. -: -: Only Voidable: Discretion. A sale of land for taxes in solido is not void, but only voidable, and then only when there is proof that the sheriff abused his discretion by selling in bulk. And where the positive evidence is that the land was of small value and sold better in large tracts (such as sections) than by similar portions, the sale should not be set aside because of a sale in solido.

    3. -: To Circuit Judge. The fact that the circuit judge bought the land at the sheriff’s sale for taxes, and the deed named him as grantee, and that he presided over the court when the deed was acknowledged by the sheriff, did not render the deed void.
    4. -: Mistake in Date of Deed: Deed Antedating Sale. A mistake in the exact date of the.sale of the land in the sheriff’s deed is immaterial, if a judgment was duly rendered and there was a public sale during term time. So that a recital in the deed that a sale was made one day prior-to the advertised sale is not material, but may be shown by evidence to be a mistake, and that the sale was made on the advertised day, and if that is shown the misrecital is unimportant.
    5. -: Valid: Quieting Title: Dissolution of Trust Relation. Where the shériff’s sale and deed are held to be no longer vulnerable to attack and to have passed the title to the present defendants, and one of them is shown to have purchased at an administration sale and took the title in himself as trustee for two other defendants, then minors but now of lawful age, the court, upon a proper prayer, should quiet the title in, those two defendants.
    Appeal from P'emiscot Circuit Court. — Row. R. C. Riley, Judge.
    Reversed and remanded {with directions).

      Ward & Collins for appellants.
    (1) The sheriff’s deed in controversy is invulnerable, legal and good in all respects and the trial court could not legally decree it null 'and void and cancel it. Said deed being good, defendants obtained, through mesne conveyances from said deed, whatever title, if any, plaintiffs’ ancestors had in said land. The land was not sold one day earlier than it was advertised. “The recitals in the sheriff’s deed are only prima facie evidence that the things therein stated are true.” R. S. 1909, sec. 11501; Hogan v. Smith, 11 Mo. App. 316. Respondents insisted in the trial that parol testimony was incompetent to contradict the recital in the sheriff’s deed; but since the statute only makes this deed prima facie evidence, it is subject to be overcome by proof; and the proof as to what day the land was sold could only be made by parol testimony, so its competency goes without question. The reason why parol testimony should not be admissible to contradict written instruments executed by the parties is that the parties are estopped to deny them, but this sheriff’s deed is not the act of the parties and is only prima facie evidence of its recitals at best and so made by statute. Greenleaf on Ev. (Redfield Ed.), sec. 396A, p. 341; Buchanan v. Tracy, 45 Mo. 437; Ladd v. Shipley, 57 Mo. 558. It became a question of fact for the trial court to determine whether or not the land was in fact sold on the day it was advertised or some other day. The presumption of law is that the sheriff did his duty and sold the land on the day it was advertised. State ex rel. v. Audrey, 209 Mo. 640; State ex rel. v. Hawkins, 167 Mo. 621. Also the land was sold in 1882 and the plaintiffs remained silent for twenty-three long years, asking no questions, permitting defendants to pay taxes. Lacks v.' Bank, 204 Mo. 455; Ancell v. Bridge Co., 223 Mo. 230. (2) The deed could not be canceled because the land was sold in bulk. Shelton v. Horrell, 232 Mo. 358; Shelton v. Franklin, 224 Mo. 263; Griffin v. Franklin, 224 Mo. 667; Turner v. Hunter, 225 Mo. 85. No damage was shown. It was .not shown that the sheriff abused his discretion. There was no seasonable application for redress. There was no notice to defendants of a sale in bulk. Shelton v. Horrell, 232 Mo. 358; Griffin v. Franklin, 224 Mo. 682; Turner v. Hunter, 225 Mo. 71.

      V. J. Higgs and Haris <& Oliver for respondents.
   GRAVES, P. J.

Action to cancel a sheriff’s deed. The plaintiffs are the heirs-at-law of Wm. A. Culbertson and Robert L. Williams. The action involves a section of land in Pemiscot county, which was sold under execution upon a tax judgment in the year 1882.

The petition charges that the tax deed was made to the purchaser, John D. Foster, who at the time was judge of the circuit court of said county. It further charges that the sale to Foster was made on September 5, 1882, whilst the land was advertised to be sold September 6, 1882. In other words, that the sale was made one day ahead of the time fixed in the notice of sale. As another ground for setting aside the sheriff’s deed, it is charged that the land was sold in bulk and not in its smallest legal subdivisions as required by statute, and that it sold for only twenty dollars when it was worth $1600. The petition also avers that their ancestors, mentioned above, were not residents of Missouri, and that they (the plaintiffs) brought their suit as soon as they were advised that they had any interest in the land.

This suit was filed in March, 1905, or nearly-twenty-three years after the tax sale. By their prayer to their petition plaintiffs ask that the tax sale be set aside, “and for such other, further and different relief as in equity and good conscience plaintiffs may be entitled in the premises.”

Defendant’s answer is (1) a general denial, (2) specific denials of the vital allegations of the petition, (3) plea of innocent purchasers for value, (4) the five-year Statute of Limitations. They also in one paragraph of the answer aver that they claim the fee simple title to the land, and ask the trial court to ascertain and determine the title thereto.

The judgment, nisi, was for the plaintiffs, and defendants have appealed. Respondents do not brief the case here! Points made, so far as necessary for the final determination of the case, will be noted in the opinion.

I. It will be observed that there are but three alleged reasons assigned by the plaintiffs for cancelling the deed, (1) because the land was sold m solido. (2) because the purchaser was the judge of the court under whose judgment the land was sold, and (3) because the sale was made one day prior to the day fixed by the notice of sale.

As to the first ground, it is evident that the petition fails to state facts sufficient to make it good under the rule announced in Shelton v. Franklin, 224 Mo. l. c. 363, whereat we said:-

“Prom the cases we take the rule to he (1) that the statute is directory, (2) that by it some discretion is allowed the officer, (3) that an abuse of this discretion may be and should be reviewed by the court either upon motion or direct attack by a bill in equity, (4) that this attack should be made in seasonable time, (5) that the abuse of the sheriff’s discretion by a sale in solido is only an irregularity which, may render the deed and sale voidable and not void.

“To these conclusions may be added that the attack by bill in equity is good as against a subsequent purchaser with knowledge or. notice of the unwarranted violation of the sheriff’s discretion and knowledge or notice of the injury done the execution debtor thereby.

“So that under these authorities the deed in question is not' void upon its face for the reason now under discussion, but is only voidable. To make a case the plaintiff would have to show (1) a sale in solido, (2) that such was abuse of the discretion lodged with the sheriff, (3) consequent damage and injury to the judgment debtor, (4) a seasonable application for redress, and (5) if against a subsequent grantee knowledge and notice upon his part of the things mentioned in the preceding paragraph, and reiterated in the first three numbered subjects in this paragraph.”

The defendants in the case at- bar are not the purchasers at the tax sale, and there is no allegation in the bill that they bought with the knowledge that the sheriff had abused his discretion in selling the land in solido. But in this regard the bill is aided by the answer, which specifically pleads that defendants purchased without such knowledge. But whilst this is true, yet there is no allegation in the bill which indicates “a seasonable application for redress.” This suit was brought twenty-three years after the sale, and the only reason for the delay assigned in the petition is: “Plaintiffs further state that, at the time of the sale of the land herein described and referred to, the said Wm. A. Culbertson, Wm. S. Culbertson and Robert L. Williams were non-residents of the State of Missouri, and were at all times up to the date of the sale of the land nonresidents and up until their respective deaths and at no time did they have any agent to do any authorized act or thing that would in any way estop them from claiming or ascertaining their rights or in any way deprive these plaintiffs from so doing, and that these plaintiffs herein employed counsel to institute this proceeding immediately upon being advised of their interest in the real estate aforesaid and of learning the facts herein set out. ’ ’

These facts, even if true, could not excuse a de lay of twenty-three years. The Shelton-Franldin case is one in which all the questions were thoroughly threshed out by this court, and under it the bill in this case is at least defective in the particular above mentioned. But we need not rest a reversal of this judgment upon this ground. The whole record is against plaintiffs. We therefore take the several contentions made by them in order.

II. The proof shows a sale in solido, but it fails to show that these defendants had any knowledge of the fact that the sale was so made, or any knowledge of the fact that if so made, the then owners of the land had been injured thereby. On the contrary the proof affirmatively shows that these defendants (who were subsequent grantees of the tax-sale purchaser) had no knowledge of the fact that the land was so sold. Other proof further shows that land so situated would have sold to a better advantage in solido than in small tracts. In such case the sheriff in his discretion could so sell it. The case was tried before the Shelton-Franklin case, and the trial court evidently took the position that a sale in solido ipso facto voided the deed. Such is not the la,w. Later cases have followed the Shelton-Franklin case on the question here involved. [Shelton v. Horrell, 232 Mo. 358; Griffin v. Franklin, 224 Mo. 667; Turner v. Hunter, 225 Mo. 71.]

We can say in this case as Lamm, J., said in Griffin v. Franklin, 224 Mo. l. c. 682: “In the case at bar the petition alleged that the land was sacrificed by. selling en masse, but plaintiff introduced no proof to sustain the allegation. The defendant, however, .assumed the laboring oar in showing that no injury resulted to the landowner by putting up the property at vendue in bulk and knocking it down to the highest bidder in that, form.”

The positive evidence in this case is that owing to the worthlessness of the lands in question at that time, sales in bulk got better results than sales of smaller portions thereof. The plaintiff in the case at bar made no proof upon the question, and let the case rest upon defendant’s proof. On the facts, therefore, the finding should have been for defendants.

III. The facts are that John H. Foster was the circuit judge and bought the land at the tax sale, and that he presided over the court when the sheriff’s deed was acknowledged. This does not make the deed void under the decisions of this State.

In Lewis v. Curry, 74 Mo. l. c. 52, this court said: “There is no objection to the sheriff’s deed because of its acknowledgment, either as to form or substance. The acknowledgment.was not taken before the Hon. Samuel Richardson, one of the grantees in the deed, but it was taken before the court over which Judge Richardson presided. [McClure v. McClurg, 53 Mo. 173.] As the deed had to be acknowledged in open court, it, of necessity, had to be acknowledged in the court from whence the execution issued, else the acknowledgment could not have been taken at all, since the statute does not authorize the judge of an adjoining circuit to be called in to sit and hold court for the mere purpose of taking the acknowledgment of a sheriff’s deed. These considerations sufficiently show that the rule ordinarily applicable where an acknowledgment is taken before an individual, as for instance, a notary, who is named as a grantee in the deed, does not apply to cases of this sort.”

In the Lewis case, supra, there was a judgment of the circuit court foreclosing a mortgage. Judge Richardson was one of the purchasers at the sale and one of the grantees in the deed. The sheriff acknowledged the deed before the court over which Judge Richardson was then presiding. The language above quoted was upon these facts. This ruling precludes the plaintiffs upon this point in their petition.

TV. Next it is urged in the petition that the sale was made one day prior to the advertised date. Upon this question the trial court found against the plaintiffs. Proof was taken and the court found that the sale was actually made on September 6th, 1882. Under this proof the court could not have well found otherwise. The recitation in the tax deed of September 5, as the day of the sale was a mistake. This question, like the one last discussed, has received elaborate consideration by Bliss, J., in Buchanan v. Tracy, 45 Mo. l. c. 442, whereat he concluded a long discussion of the point thus:

“But it does not follow that every essential fact or transaction must be recited truly, in all its details, and that a mistake, as of date, is the same as a total omission. This would exclude the toleration of any clerical error, and would be' contrary to our whole system. When a date is material — is of the essence of the act it must be truly given; but this sale would be just as lawful on the 4th as on the 5th. A distinction should be made between a total omission of a necessary recital, or between sncb error in it as would render tbe proceeding invalid, and a clerical mistake that in no way affects the instrument on its face. Such was tbe mistake considered in tbe case of Stewart v. Severance (43 Mo. 322), and I can see no grounds for tbe alleged difference between tbe clerical errors of a sheriff and clerk. Tbe same reasons bold why tbe purchaser should not be affected by tbe one as tbe other. Tbe recitals are not ibis acts, and bis deed is good upon its face. Tbe term refers not so much to tbe character of tbe officer who makes tbe mistake, as to tbe character of tbe mistake; and tbe principle involved in that case is precisely the' same as in this. Tbe statute as expressly requires tbe date of tbe judgment to be given as tbe time of tbe sale,, and, besides, an error of tbe clerk in tbe date of tbe" judgment is almost of necessity carried by tbe sher-*" iff into tbe deed. Tbe fact of a judgment duly rendered, and tbe fact of a public sale during a term of court, are both material. They are tbe foundation of tbe sheriff’s deed, and it is worthless without reciting them. But it is not material whether tbe judgment -be taken or tbe sale be made one day or another of tbe term; hence, tbe mistake in tbe exact day is an immaterial one. It barms no one. In tbe case at bar tbe deed shows upon its face that tbe proceedings were legal, as they were in fact, and mere clerical errors, to which all officers are liable, should not, upon an immaterial point, be permitted to invalidate a regular proceeding. ” ,

Under tbe law as stated by Judge Bliss,, there is nothing in this contention of plaintiffs and tbe trial court was evidently of tbe same opinion. Prom this it follows that tbe judgment, nisi, must be reversed, and tbe only question is as to whether or not we should go further. That question we take next.

V. Defendants William R. Edwards and Ben K. Edwards ask in their answer that the court ascertain and determine the title to this land and pray that they be declared to be the owners thereof. Should this be done? We think so. The facts are these. William C. Edwards bought the land at administration sale, had in winding up the estate of John H. Poster. He took the title in his name as trustee for Ms two sons, William R. and Ben K., who were then minors. He makes no claim to the land as his own. If the tax deed is good as to the defendants, ás we have held, then they have a clear record title to the land. We shall not discuss the Statute of Limitations, because it cannot be said that twenty-three years is a reasonable time in which to attack what may be deemed a voidable tax sale or deed. The trial court should have decreed title in the two defendants, William R. and Ben K. Edwards. That this may yet be done, we will reverse the present judgment and remand the cause with directions to the circuit court to enter up a proper decree ascertaining and determining the title to the land in dispute to be in these two defendants, and decreeing the title to be in them in fee simple.

All concur; Valliant, J., in result only.


author: BROWN, C.

text:
    THE STATE ex inf. THE PROSECUTING ATTORNEY OF GREENE COUNTY ex rel. A. D. THOMPSON v. F. S. HEFFERNAN, Appellant.
    Division One,
    May 31, 1912.
    1. QUO WARRANTO: Jurisdiction. The jurisdiction of the courts of Missouri with respect to informations in the nature of quo warranto, filed upon relation,, rests entirely upon the statute, Sec. 2631, R. S. 1909.
    2. -: Relator: Must Have Special Interest: Sec. 2631, R. S. ,1909. Those only can he relators in proceedings in quo warranto under Sec. 2631, R. S. 1909, who have some special interest in the prosecution.

      .3. -: Information: Leave of Court to File. An information in the nature of quo warranto, upon relation, can only he - filed by leave of court.
    4. -: Answer: Capacity of Relator: Burden of Proof. Where the respondent, in an action in the nature of quo warranto begun by information filed by the prosecuting attorney upon relation, denies in his answer the capacity of the relator to bring the action, the burden is upon the relator to meet the issue so raised. »
    5. SPECIAL ROAD DISTRICT: Election of Officers. The manner of taking as well as of ascertaining and recording the result of the vote in an election of officers for a special road district organized under art. 7, chap. 102, R. S. 1909, is left to the board of commissioners.
    6. -: -: Record: Going Behind Returns: Pleading. Where the record kept as required by law shows the appellant to have been elected a commissioner of a special road district, the court cannot go behind the returns to ascertain and declare the vote of the electors, unless the special objection to the returns has been pleaded, so that the ground upon which they are disputed may be understood.
    7. CORPORATIONS: Favorable Intendments Toward Acts. Every intendment of law is made in favor of the regularity of corporate acts and proceedings.
    8. EVIDENCE: Municipal Records. Where records are kept of • municipal acts and proceedings the law is clearly defined that the same are receivable in evidence of the truth of the facts recited; and it would seem that when so produced they establish themselves, because they are made by accredited agents, are of a public nature and notoriety, and are usually made under the sanction of an oath of office.
    Appeal from Greene Circuit Court. — Eon. J. T. Neville, Judge.
    Reversed and remanded (with directions).

      J. J. Gideon and H. G. Young for appellant.
    (1) Ballots at an election cannot, under the Constitution, article 8, sections 3 and 9, be opened and inspected, except in cases of contested elections. (2) Quo warranto proceeding is not a contested election case within the meaning of the Constitution, and ballots cannot be inspected therein. (3) A quo warranto proceeding adjudges the right to the office to no one; it only determines whether the person exercising the right to the office is a usurper. State v. Francis, 88 Mo. 367; State ex rel. v. Board, 112 Mo. 213; State ex rel. v. Spencer, 164 Mo. 34. (4) “In quo warranto, parties cannot go behind the official returns, unless the specific objections thereto be stated in the pleadings; there must be, e. g., a specification of the number and names of the voters alleged to be illegal; general averments in reference thereto are insufficient.” State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Yail, 53 Mo. 97. An information in the nature of a writ of quo wdrrmto is essentially a civil proceeding. Burden of proof is on the relator; every reasonable intendment is to be made in favor of the regularity of the proceedings by which appellant was put into office. State ex rel. v. Kupferle, 44 Mo. 154; Ins. Co. v. Holmes, 68 Mo. 601; State ex rel. v. Smith, 22 Minn. 218; State v. Yail, 53 Iowa, 550; Ins. Co. v. Sortwell, 8 Allen, 217; Granger v. Mill Co., 50 Cal. 678. But where defendant fails to show in his answer or return that there was an office to fill, and that he was qualified to fill the office, the burden shifts on him to show that there was an office to fill and that he was qualified to fill the same. State ex rel. v. McCann, 88 Mo. 387; State ex rel. v. Meet, 129' Mo. 431; State ex ■rel. v. Rose, 84 Mo. 198. Requiring a vote by ballot means a secret ballot, and any inspection that destroys secrecy is prohibited. Ex parte Arnold, 128 Mo. 256; State ex rel. v. Spencer, 164 Mo. 25. Nor can the court order an inspection of the ballots and a comparison of same with voting lists to determine the voters who oast particular ballots. Montgomery v. Dormer, 181 Mo. 5; State ex rel. v. Oliver, 163 Mo. 679. Even primary elections shall be conducted and protected as other elections. State ex rel. v. Taylor, 220 Mo. 618; State v. Fleming, 158 Mo. 558,

      G. A. Watson, J. J. Collins and J. C. West for respondent.
    The respondent’s first, second and third assignments of error is in the trial court placing the burden of proof upon the respondent. In State ex rel. v. McCann, 88 Mo. 386, in a quo warranto proceeding against one for usurping an office, the court makes use of these words: ‘ ‘ The rule being that the burden is upon the respondent to show title to the office, the inquiry is, has the respondents shown any of these facts.” The courts also adhere to and follow this ruling in the State ex rel. v. Giovanoni, 591 Mo. App. 41; Mullery v. McCann, 95 Mo. 579; State ex rel. v. Meek, 129 Mo. 436; State ex rel. v. Powles, 136 Mo. 380.
   BROWN, C.

This is an information in the nature of a quo warranto, filed in the circuit court for Greene county by the prosecuting attorney at the relation of an owner of land in James River Club House Road District of Greene county, a special road district incorporated under the act of the General Assembly approved April 14, 1905. [R. S. 1909, Secs. 10611 et seq.] It challenges the right of the defendant to exercise the office of commissioner of the district. The answer denies the usurpation charged, assumes the burden of justifying the exercise of the office, and sets forth with sufficient detail the election of the appellant by the landowners, at an election duly called by the commissioners, held on the first Tuesday after the first Monday in January, 1910. It also sufficiently states his qualification, and that he was a citizen of the United States and of this State, an owner of land in the district, and had been a resident of Greene county for more than forty years.

At the trial he identified the records of the corporation, and read therefrom the call for, and the record of, the election, showing the appointment of the tellers, the opening of. the polls ¡and the vote by ballot and the declaration that there were fourteen votes cast of which the appellant received eleven and one George B. McDaniel three and declaring that appellant had received a majority of the votes cast and was duly elected commissioner of said district. This record was signed by the president and secretary of the district. He also proved his qualifications for the office and the taking and filing of the oath, and rested his case. The court remarked, “As far as the evidence shows, Mr. Heffernan was duly elected.” The relator contended that this was not sufficient, and that the true return of the election is the-ballots and tally sheets, to which the court remarked they were not in evidence. Belator refused to offer further evidence. The court said it would like to see them, and relator consented to their introduction. The court thereupon sent to the office of the clerk of the county court, and a paper box, unlocked, unsealed and only tied with a piece of twine was brought and emptied on the table. It contained no signatures of the officers of election, or any electors of the district, or any other evidence of authority for writings or figures thereon shown. The respondent objected to the introduction of these papers on the grounds, among others, (1) that the law does not require any return of the election of commissioners to be made to the county clerk; (2) because the proxies, ballots, tally sheets and memoranda did not purport to have been used in the election; (3) that the tally sheets were not authenticated by any one. It was admitted, however, that these were tally sheets used and the ballots cast at the election and had been returned to the county clerk by the judges and clerks.

The court overruled .the objection and proceeded to examine the papers without further evidence of any kind, to which the appellant excepted. What the judge found in the box is stated by him in findings of fact filed, in substance as follows: There were at least fourteen persons present at the election, qualified voters, and of these three voted for McDaniel and eleven for Heffernan. Twenty-five landowners in the district were represented by proxies, eighteen of which voted for McDaniel and seven for Heffernan. The acres of land represented by votes cast for Heffernan amounted to something like 1400' or 1500. It was impossible to tell the exact anjount. The acres of land represented by votes for McDaniel amounted to something over 2500. It was impossible to say the exact amount. Upon this evidence the judgment of ouster was rendered. The points to which reference will be made in the opinion were properly saved and assigned as error.

I. The statute to which the road district is indebted for its existence is founded upon the theory that good roads constitute an improvement to the lands accessible to them, and that to that extent the land so benefited should be charged with the cost of such improvement. The district is an organized body, not of citizens, nor even of property holders generally, but of landowners combined for the purpose of increasing the value of their own holdings, and willing to pay the cost, or such portion of the cost, as should be imposed upon them by common consent and the law by which they were created. That public quasi corporations constitute legitimate instruments for this class of improvement has never been seriously questioned, their public character being based upon the incidental benefits derived by the public from- such improve ments. Their government has been frequently entrusted, not to the whole body of the people of the districts included, but to the owners of the property immediately affected, upon the principle that as these were the persons peculiarly affected by the scheme, it is fair to permit them, under proper restrictions in the interest of the public, to control the funds which they themselves contribute for the purpose. In this case the corporation was formed hy the landowners of a restricted territory, under the act mentioned in the foregoing statement, now article seven, chapter one hundred and two of the Revised Statutes of 1909, all, other citizens than property owners being excluded from participation by the terms of the act. By this act the district is made a body corporate, possessing the usual powers of corporations for public purposes; and it is further provided (R. S. 1909, Sec. 10617), that “it shall be a political subdivision of the State for governmental purposes./’ From these provisions it is evident that the Legislature did not intend to leave the municipal character of its new creation in doubt. Its corporate powers are vested in a board of three commissioners (Id., sec. 10613). The validity of this corporation and, consequently, of the governing board in which its corporate powers are vested is expressly admitted by the information, and the only matter at issue in this proceeding is the election of the appellant as a member of that board. The law provides (Id., sec. 10613) that these commissioners shall be “landowners in said district.” There are other provisions (sections 10612, 10616 and 10621) by which votes are given to the members of the corporation based upon acres of land owned, and voting allowed through an agent or attorney. These various previsions lay the ground of the controversy in this case. Whatever the method may be of voting for the members of the governing board of the corporation, it is by the terms of the statute (Id., secs. 10624 and 10625) given the control and disbursement of all moneys raised by general taxation against all classes of property in the district and all the license and poll taxes appropriated by law to road purposes, as well as of moneys raised by special taxation upon the lands of these members for whose special benefit it was organized, and who are permitted by the terms of the statute to participate in its business.

Various constitutional questions growing out of the provisions of the act which we have noticed above, were raised at the trial, and are insisted upon in the assignment of errors and brief of the appellant, by reason of which the jurisdiction of this court has been invoked, but, in the view we take of the case, it will not be necessary to notice them further than to say that these questions constitute a clear, substantial claim distinctly involved in this controversy, and give this court undoubted jurisdiction of the whole case, whatever may be the grounds upon which we may determine it.

II. The appellant contends that the burden was upon relator to show by evidence that his interest in the subject of the controversy was such as to authorize him to maintain the proceeding in that capacity. As there is no evidence tending to sustain this burden, it follows, if this position is well taken, that the judgment of ouster is erroneous.

The prosecuting attorney filed in the circuit court his petition asking for leave, at the relation of Mr. Thompson, to file the information, and at the same time, without any further order of the court, filed it, and thereafter the defendant appeared and filed his answer. Upon these pleadings alone the case was tried. The information states that the relator is a resident of the road district, and the owner of lands situated therein, which is denied by the answer, and the issue so .made calls for the determination, (1) whether this is ail issuable averment; and, (2) if it is, whether the burden was upon the defendant to disprove it.

Mr. Selwyn, in his Nisi Prius Law (5 Ed. 1102). says: “Before the statute of Queen Anne, the crown only, by the Attorney General, could file such information.” So far as information on the relation of private individuals is concerned, this statement is probably correct; although the fact that this statute was enacted about a hundred years after the date down to which the Common Law of England was adopted as the law of this State, renders is useless to investigate its accuracy. It is certain that the jurisdiction of our own courts with respect to such informations rests entirely upon our statute, section 2631, Revised Statutes 1909, which authorizes them. It provides that “the Attorney-General of the State, or any circuit or prosecuting attorney of the county in which the action is commenced, shall exhibit to the circuit court, or other court having concurrent jurisdiction therewith in civil cases, an information in the nature of a quo warranto, at the relation of any person desiring to prosecute the same; and when such information has been filed and proceedings have been commenced, the same shall not be dismissed or discontinued without the consent of the person named therein as the relator; but such relator shall have the right to prosecute the same to final judgment either by himself or by attorney. ’ ’ If the relator is successful, he recovers his costs against the defendant; if he is unsuccessful the defendant recovers his costs against him. From the time of the filing and exhibition of the information, it is a fight between the relator and defendant, of which the State and its officers are disinterested spectators. A person in good moral and intellectual health instinctively feels that it would not be right, or good public policy, to place every person who, under the belief that he has been fairly elected or appointed to a public office, is performing its duties to the satisfaction of all directly concerned, at the mercy of an interloper who might choose, from motives of amusement or malice to subject him to the trouble and expense of exhibiting all the minutiae of his title. We accordingly find that this court has constantly held that the enactment we have quoted means that those only can be relators in such proceedings who have some special interest in the subject of the prosecution (State ex rel. v. Lawrence, 38 Mo. 535; State ex rel. v. Boal, 46 Mo. 528; State ex inf. v. Berkeley, 140 Mo. 184), and that snch informations can only he filed by leave of court (State ex rel. v. Rose, 84 Mo. 198, 202; State ex inf. v. Beechner, 160 Mo. 78, 85; State ex rel. v. Job, 205 Mo. 26).

To the suggestion that the prosecuting attorney is the proper person to ascertain and determine whether or not the relator is qualified with respect to his interest to maintain the action, it is sufficient answer to say that the permission of the court is necessary to enable a prosecuting attorney to act, that the court can only speak by its records and that here the record is lacking, so that the “exhibition” of the information which must precede the retirement of the officer and the turning over of the prosecution to the relator is a nullity, but even if this was not so, the capacity of the relator is an important question materially affecting' the defendant, and he is entitled to some tribunal in which he can try it. He has denied that capacity in his answer and the burden is upon him who alone has the facts in his possession, to meet the issue so raised, which is not susceptible of negative proof except by compelling the relator to disclose that he ha,s not the deed in his pocket to qualify him for the position he has assumed. In this respect there is a failure of proof upon the vital question of the right of the relator to maintain his action.

III. We have already intimated in the first paragraph of this opinion the Legislature was careful to provide in the act creating this district that it should be “a political subdivision of the State for governmental purposes” as well as “a body corporate” with “the usual powers of a corporation for public purposes,” so that it is not even relegated to the class of public-quasi corporations with which such subdivisions for special purposes are usually content to be classified. Although its general powers were vested in a board of commissioners, it did not, with equal care, prescribe the particular manner in which the elections for its members should be held. It did however, prescribe qualifications for electors different from those prescribed in section two, article eight of the State Constitution; thus indicating the express intention that they should not be governed by the general election laws of the State. The commissioners are to call these elections, and indicate the time and place of their holding; and the implication is clear that the manner of taking as well as of ascertaining and recording the result of the vote, is left to that body. The statute provides, as we have seen, that the secretary shall keep a true and complete record of the proceedings of the board, to be attested by him and signed by the presiding officer. In this case the board, as it had the right to do, followed generally the method prescribed by law for the conduct of elections in private corporations, by appointing tellers and receiving and recording the result. The record stated that Mr. McDaniel received three votes' while the defendant received eleven. This, together with proof that the defendant possessed the necessary qualifications to hold the office, and had filed the constitutional and statutory oath with the county clerk, constituted the evidence upon which he- rested, and claims that he has at least sustained the burden cast upon him by law and the state of the pleadings. Both parties were willing to stand or fall upon the proposition, the defendant claiming that he had made a prima facie case upon facts stated in his answer; but the court suggested that, although he was, so far as the evidence showed, duly elected it would like to see the ballots cast and the tally sheets; to which the relator consented, and an unfastened paper box was brought from the office of the county clerk, in which, for some reason unexplained in the testimony, had been placed ballots and tally sheets, together with proxies and memoranda, all unauthenticated by the officers of the election. It was admitted that these ballots had been cast and the tally sheets used in the election. Prom these papers the court seems to have ascertained, and stated in findings of facts filed, that in addition to the fourteen votes cast by those present at the election there were twenty-five landowners represented by proxy, and that of these a sufficient number had voted for McDaniel to elect him. No evidence whatever was introduced or received with reference to the authenticity of these proxies or any of them,.nor are they preserved in the record. It was upon this evidence that the defendant was ousted by the trial court. No proposition is better settled or more' universally recognized than that every intendment of law is made in favor of' the regularity of .corporate acts and proceedings. Where records are kept of municipal acts and proceedings the law is clearly defined that the same are receivable in evidence of the truth of the facts recited; and it would seem to be a rule that when so produced they establish themselves ; because they are made by accredited agents, are of a public nature and notoriety, and are usually made under the sanction of an oath of office. [Black on Public Corporations, sections 1293, 1294 and cases cited.] The records of the body which held this election are expressly required by the law to be kept. They constitute the best evidence of its acts. Admitting that they could be avoided and falsified by showing that the ballots of qualified voters had been rejected, the pleadings are in no condition to raise this issue. The answer is not even denied by replication. If it be said that the defendant by introducing his evidence without making the specific objection, waived this omission, and proceeded to trial upon the theory that a reply had been filed, such waiver only goes to the extent of assuming a denial of the matter contained in the answer. In this case we do not find it necessary to decide whether this rule applies to a proceeding in which the answer, so far as the real merits are concerned, is the initial pleading. The reasonable doctrine which had long prevailed in other jurisdictions, that to go behind the returns of the officers appointed by the statute to ascertain and declare the vote of the electors, the special objection to the returns must be pleaded so that the ground upon which they are disputed may be understood (Attorney-General v. McIvor, 58 Mich. 516; State v. Harris, 3 Ark. 570, 578; Attorney-General v. May, 97 Mich. 573), has been approved and adopted in this State (State ex rel. v. Townsley, 56 Mo. 107, 112). It follows that the admission of the evidence was unauthorized by the pleadings. If, however, a reply had been filed properly tendering this issue, the relator’s position would not be improved, for there is no evidence tending to show the authenticity of any proxy,, and without such proxy none of the votes added by the coxirt could be counted.

Although an information of this character may be tried after the term of the office to which it relates .has expired, we can see no reason for prolonging this case for trial other than those already disposed of. The record shows that the parties deliberately chose their ground and they should be permitted to stand on it. The judgment below is accordingly reversed and the cause remanded to the Greene Circuit Court with directions to give judgment that the defendant recover his costs against the relator.

Bond, C., concurs.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur, except Valliant, J., absent.


author: BOND, C.

text:
    C. A. COFFIN, Appellant, v. G. S. ELGIN et al., Respondents.
    Division One,
    May 31, 1912.
    1. APPEAL: Evidence: Objections: Order of Publication. The point that an order of publication failed to contain a recital, in express terms, that the court in directing it had designated the newspaper most likely to inform the defendants, is not raised on appeal by an objection to the effect that the court had not in fact selected a newspaper most likely to give notice.
    2. ORDER OF PUBLICATION: Designating Paper. Where the statute provided, with reference to orders of publication, that they should he printed in some newspaper “published in the county where the suit is instituted, if there be a newspaper published there; if not, then in some newspaper published in the State, which the plaintiff . . . may designate as most likely to give notice to the person to he notified,” the last clause, requiring a designation of a paper, applies only when the publication is ordered in a paper published in the State, and does not apply when publication is ordered “in some newspaper published in the county where the suit is instituted.”
    Appeal from Greene Circuit Court. — Hon. J. T. Neville, Judge.
    Aeeirmed.

      Burkhead & Clark for appellant.

      Hull, Delaney & Delmiey for respondent.
   BOND, C.

Plaintiff sues to quiet title to certain lands in Douglas county, Missouri, a part of which he claims to own by limitation and the remainder by record title. The defendants answered by a general denial. The cause was taken to Greene »county on change of venue, and submitted to the court on the 2d of April, 1908, when a judgment was rendered in favor of the defendants, for the reason that certain decrees or judgments had in several suits to quiet title, in all of which the present plaintiff was a party defendant, were conclusive against any recovery in the present action. The plaintiff has wholly failed to file in this court any ■ brief, printed argument or assignment of errors other than the insertion of a number of legal propositions at the end of his abstract with citations of cases and a request that the judgment be reversed and judgment be entered here in his favor. We are, therefore, left entirely to the contents of the abstract in order to ascertain what transpired on the trial of the case and what, if any, error then intervened, except that when this case wa,s called we were favored with an oral argument by the learned counsel for appellant wherein he insisted that the title of the defendants (respondents) accrued through the medium of sales for taxes in suits against plaintiff wherein the court had no jurisdiction, and accrued also through certain actions brought against plaintiff and others to quiet title to the same lands by persons under whom the defendants now claim, as to which suits also he claimed the court was not possessed of jurisdiction. The specific objections made by him on his oral argument to the aforesaid proceedings were, first, that in some of such proceedings wherein orders of publication were necessary, the lower court failed to 'recite in its order of publication that it had designated the newspaper most likely to inform the persons to be notified, and that publications made under such order were not for the statutory period. In the abstract, however, on page 21, the objection interposed as to the newspaper in which the publication was made is only in the following terms; “and the order of publication fails to designate the paper most likely to give notice to defendants.” The respondents filed no brief nor made any appearance on this appeal.

The alleged abstract of appellant to which we have been relegated shows that certain suits to quiet title to the same lands were brought against appellant by certain persons under whom defendants now claim to own the land in controversy; that these suits resulted in judgments against appellant, and that the titles of the plaintiffs therein are now by mesne conveyances vested in the present defendants. The abstract does not set out that any appeal was taken by the present plaintiff from the judgments rendered against him in such actions. When the first of these judgments against the present plaintiff in the action to quiet title was introduced, on page 18 of his abstract, the objection then made by appellant was for the reasons which he had given when a sheriff’s deed had been introduced, without specifying what those reasons were, and for the further reason that the publication was for less time than that prescribed by statute When the second of these judgments rendered in a collateral suit against appellant was introduced, on page 19 of his abstract, the objection then interposed by appellant was “the order of publication does not designate the paper most likely to give notice to the persons to be notified, and was not published for twenty-eight days.” These objections were overruled, to which exceptions appear to be duly saved, on page 28 of his said record. On the introduction of the last of these judgments in the actions to quiet title against appellant, the objection interposed by him was that the order of publication was not published for 28 days, and “said order does not state that the paper designated is the one most likely to give notice to the persons to be notified,” “and there is nothing in said suit to show that the plaintiff suggested or designated the paper to publish the order,” which objection was overruled. The abstract, however, shows, on page 39, a formal order of publication made on the 27th of October, 1899, in the'first of said suits to quiet title against appellant, requiring him to appear and plead in that action on or before the fourth Monday in March, 1900, and was in every respect regular* and as to the newspaper in which, it was published contained the following recital: “And it is further ordered that a copy hereof be published in the Douglas County Herald, a newspaper printed and published in Douglas County, Missouri.” The affidavit of the publisher shows that the first publication was on the 2d of November, 1899; that it was continued for four weeks consecutively and ended in the publication on the 23d of November, 1899.

We have been wholly unable to find in the abstract anything substantiating the point made in oral argument, that the publication in any of those suits to quiet title was not made for the statutory period.

After the overruling of his motion for a new trial, plaintiff perfected his appeal to this court.

OPINION.

I. Prom what has been shown in the foregoing statement, it is clear that the only point presented for review is the one relating to the claim that the adjudications rendered in the collateral suits brought against appellant to quiet title to the lands in controversy in this case were not conclusive of a bar to the present action, because no jurisdiction was acquired by the court of the person of appellant in those actions by failure of the order of publication to contain, in express terms, a recital that the court in directing it had designated the newspaper most likely to inform the defendants. This point does not arise under the language of the objection made when those decrees were admitted in evidence, for, as has been shown, the ground of objection then made was not a failure on the part of the order of publication to recite that it had designated a newspaper most likely to give notice, etc., but that the court making the order had not in fact selected a newspaper most likely to give notice, etc. Hence, we might dismiss the contention made in oral argument from further consideration on the ground that it was not within the specification or scope of the objection which he interposed at the time the judgments were introduced. For, clearly, it is not competent for a ground of objection to be urged to the admission of testimony in this court, other than the particular ground stated on the trial. But we think there is no merit in that contention, even if it be considered on its presentation in the oral argument here. The statute in force at that time provided with reference to such orders of publication, that they should be made in some newspaper “published in the county where the suit is instituted, if there be a newspaper published there; if not, then in some paper published in this State, which the plaintiff, or his attorney of record, with the approval of the judge or clerk making the order, may designate as most likely to give notice to the person to be notified,” etc. [R. S. 1899, sec. 581; amended R. S. 1909, sec. 1777.] It will be seen from the above quotation that the last clause thereof, requiring the designation of a paper, etc., applies only where the publication is ordered in a paper published in the State, and does not apply when the publication is ordered “in some newspaper published in the county where the suit is instituted” under a preceding provision of the statute. The record in this case shows that the publication was ordered in Douglas county, where this action was begun. Hence, the statutory requirement as to publication elsewhere did not govern. This distinction seems to have been overlooked in the case of Otis v. Epperson, 88 Mo. 131, cited by counsel for appellant in his oral argument. In that case only so much of the above quoted statute as refers to orders of publication not made in the county where the suit is instituted, was considered by the court. The other provision of the statute as to publications in the county where the suit is brought, was not ruled upon. Hence that ruling is not in point and furnishes no support to the contention of appellant.

After a careful consideration of the alleged abstract, which consists of documentary matters and contains no oral evidence, we have been unable to discover any ground to convict the learned trial judge of error in his finding in this case. The judgment therefore will be affirmed.

Brown, G., concurs.

PER CURIAM.- — The foregoing opinion of Bond, 0., is adopted as the opinion of the court.

All the judges concur.