author: GRAVES, J.

text:
    J.E. AMMERMAN v. WILLIAM LINTON, CHARLES W. KIRBY and ADDA KIRBY; C. W. DURRETT, Intervener, Appellant.
    Division One,
    July 9, 1919.
    1. SHERIFF’S DEED: Recitals: Judgment as Evidence. The recitals in a sheriff’s deed are prima-facie evidence of the facts therein set forth, and in ejectment the introduction in evidence of the judgment under which the execution sale was made is not necessary to establish title in the purchaser.
    2. -: Recital of Levy. A sheriff’s deed is not required by the statute to recite a levy upon-the lands sold.
    3. APPEAL: Printing Evidence Omitted at Trial. The printing in the abstract of a judgment rendered at a former trial of the case, which was not offered by either party at the trial which resulted in the judgment appealed from, does not put such judgment in the record, and all contentions based on such former judgment are eliminated from the case.
    4. SHERIFF’S SALE: Pending Appeal: Subsisting Judgment Against Non-Appealing Defendant. A sale upon special execution issued upon a judgment against a mortgagor who did not appeal and which, was never disturbed as to him, made during the pendency of the appeal which resulted in reversing the judgment rendered in behalf of the other defendant, was a saie, as to such non-appealing defendant, under a subsisting judgment.
    5. -: At Second Term: Written Stipulation. A sheriff’s sale is not invalid because made at the second term after the issuance of special execution, rather than at the first. Besides, it is in poor grace to-urge any infirmity in the sale on the ground that it was made at the second term where the parties have entered into a written agreement postponing the sale to that term in order that defendants might have longer time to redeem under the mortgage which was the basis of the judgment.
    6. -: Collateral Attach: Misleading Notice. A lack of proper notice of a judicial sale is an irregularity which renders the sale voidable, but not void; and being only voidable, the sheriff’s deed, made under execution, cannot, because of an infirmity in the notice, be attacked in a collateral proceeding, such as an ejectment brought by the purchaser. So -where the special execution recited that the debt and costs were declared a lien upon the land, and the sheriff’s deed contained the same recitals, the deed cannot be attacked in ejectment on the ground that the notice of sale stated that one of the defendants owned all the lands as tenant by the entirety jointly with the other defendant and that it was the interest of such tenant that would be sold.
    7. ACKNOWLEDGMENT: Regular on Face: Hidden Defects: Record. If a deed of trust contains a certificate of acknowledgment in proper and regular form, it is the duty of the recorder to receive the instrument and place it upon record, and if so recorded it imports constructive notice to all subsequent purchasers; and though, upon a trial in court, it is adjudged that the deed had not been acknowledged,- because the notary’s recitals in his certificate were false, its record nevertheless imported' notice to such subsequent purchaser.
    Appeal from Knox Circuit Court. — Son. Charles D., Steiuart, Judge.
    Affirmed.

      J. C. Dorian, Boyd & McKinley, O’Sarras, Wood & Walker, and C. W. Durett for appellant.
    (1) The plaintiff has failed to establish a consecutive chain of title indicating a legal title to the premises in question. Had he introduced the judgment secured in tlie first foreclosure proceedings, on which his execution and deed is based, it would have shown on its face that the judgment was void, (a) The judgment and decree in the first suit brought by the First National Bank of Stronghurst, Illinois, on April 12, 1911, was based upon the fact that Charles W. Kirby was the owner of an estate by the entirety and it authorized the sale of such an estate and that was the estate that was attempted to be sold under that judgment. First National Bank v. Kirby, 175 S. W. (Mo.) 926; First National Bank v. Kirby, 190 S. W.(Mo.) 600. (b) The Circuit Court of Knox County was without jurisdiction to authorize the sale of a tenant’s interest in an estate by the entirety and its action in authorizing the sale of Kirby’s interest as such a tenant by the entirety in that judgment and decree was void. Otto F. Stifel’s Union Brewing Co. v. Saxy, 201 S. W. (Mo.), 67; Ashbaugh v. Ashbaugh, 201 S. W. (Mo.), 72. (c) Had plaintiff introduced the judgment in the original foreclosure proceedings, it would have shown that the judgment was void for the reason that there was no. definite amount found to be due at the date of the judgment, which the defendant in that cause was entitled to have, an opportunity to pay in order to prevent a sale. Eumsey v. People’s Eailway Co., 144 Mo. 175; Black on Judgments (2 Ed.), sec. 3, p. 8; Black on Judgments (2 Ed.), sec. 118, p. 168; 24 Cyc. 10; Eailway Co. v. Fosdick, 106 U. S. 47; 5 Am. & Eng. Ency. Law, p. 376; Boone on Mortgages, sec. 189; Milhim v. Hawkeye Ins. Co., 171 111. App. 262; Tkompkins v. AYiltberger, 56 111. 385. The judgment in question did not conform to the statute. Sec. 2834, 2836, 2837, E. S. 1909; Fithian v. Monks, 43 Mo. 520. (d) The effect of a general and unqualified setting aside of a judgment, order or decree is to nullify it completely and to leave the case standing as if such judgment or decree had never been rendered. Campbell v. Kauffman, 127 Mo. App. 287; Moore v. Damon, 4 Mo. App. Ill; Atkison v. Dixon, 96 Mo. 577; 3 Cyc. 460; 4 Corpus Juris, p. 1204. (e) No title passes under or by virtue of an execution and sale following a void judgment. Janny v. Speldon, 38 Mo. 395; McNair v. Biddle, 3 Mo. 264; Otto F. Stifel’s Union Brewing Co. v. Saxy, 201 S. W. (Mo.), 67; Knapp, Stout & Co. v. City of St. Louis, 156 Mo. 343; Macke v. Bird, 131 Mo. 682. (2) The special execution- issued on the judgment recovered in the first suit brought by First National Bank v. Kirby was issued on the 6th day of November, 1913, and it provided that a return should be made “before the-judge of our said court on the second Monday in December next,” and was, therefore, dead or functus officio on the date of the sale to plaintiff, June 3, 1914. Secs. 2175, 2195, 2199, R. S. 1909; City of Aurora v. Lindsey, 146 Mo. 509; Jones v. Howard, 142 Mo. 117; St. Louis Brewing Assn. v. Howard, 150 Mo. 445; Stewart v. Severance, 43 Mo. 331; Bank v. Bray, 37 Mo. 194; Lackey v. Luhke, 36 Mo. 124; Wack v. Stevenson, 54 Mo. 485; Butler v. Imhoff, 238 Mo. 598. (3) A levy was essential, as the instrument sued on was not acknowledged and hence not entitled to record. Its record was unauthorized. Secs. 2794,-2797, 2798, 2809, 2810, 2811,' 10381, R. S. 1909; Rivard v. Mo. Pac. Ry. Co., 257 Mo. 135; Herman v. Real Estate Co., 150 Mo. 570; Williams v. Butterfield, 182 Mo. 181; Bishop v. Schneider, 46 Mo. 472; Stierlin v. Daley, 37 Mo. 484; First National Bank v. Kirby, 175 S. W. (Mo.) 926; First National Bank v. Kirby, 190 S. W. (Mo.) 597; Sec. 2228, R. S. 1909; Butler v. Imhoff, 238 Mo. 598.

      W. C. Ivins and F. H. McCullough for respondent.
    (1) In ejectment, the right of possession alone is determined, and that is. settled by the record title, or by title by limitation based upon possession. McAnaw v. Clark, 167 Mo. 443; Richardson v. Dell, 191 S. W. 64. (2) The recitals in the deed of the sheriff conveying the land to respondent, are presumptive evidence of the existence of the judgment and execution and the other facts recited in the deed, and in an action of ejectment the plaintiff need not produce the judgment and execution. R. S. 1909, sec. 2231; McCormick v. Fitzmorris, 39 Mo. 24; Samuels v. Shelton, 48 Mo. 445; Jordan v. Surghnor, 107 Mo. 520; Scharff v. McGraugh, 205 Mo. 344; Butler v. Imhoff, 238 Mo. 584. (3) Mere irregularities or defects are not sufficient to invalidate a sheriff’s deed. Emory v. Joice, 70 Mo. 537; Dunn v. Miller, 8 Mo. App. 467. (4) Irregularities in the judgment, sale or sheriff’s deed cannot be taken advantage of in a collateral proceeding, but only in a direct application for that purpose. Reed v. Austin’s Heirs, 9 Mo. 722; Waddell v. Williams, 50 Mo. 216. (5) Under the statute, where a sale is not made at the first term of the court after the issue of the execution, said execution continues in force until the end of the second term thereafter. R. S. 1909, sec. 2228; Lackey v. Lubke, 36 Mo. 122; Butler v. Imhoff, 238 Mo. 584. (6) The real estate was charged with the lien of the judgment, hence no notice of levy or other proceeding was necessary. The execution was simply a direction to the sheriff to foreclose that lien. R. S. 1909, sec. 2199; Smith v. Thompson, 160 Mo. 553; Brewing Assn. v. Howard, 150 Mo. 445. (7) A judgment may be erroneous or defective as a personal judgment and yet be valid- as a judgment of foreclosure. Trumbo v. Flournoy, 77 Mo. App. 324; Hoskinson v. Adkins, 77 Mo. 537; Hagerman v. Sutton, 91 Mo. 519. (8) The question of interest of tenant by entirety does not enter into this case, because appellant Adda states in her answer, filed in this cause, that she only owns inchoate dower in the lands. (9) As between the judgment creditor and appellant, Charles W. Kirby, and those claiming under him, the judgment in Case No. 6901 was conclusive. It was final and no appeal was taken. Murphy v. De France, 101 Mo. 151. (10) The validity of the sheriff’s deed depends, only, upon whether or not it contains all essential recitals; it recites the names of the parties to the execution, the date the execution issued, the date of the judgment, the* description of the land, and the time, manner and place of the sale. The above are the oulv essential recitals; all others are simply directory. Wilhite v. Wilhite, 53 Mo. 71; Gaines et al. v. Fender, 82 Mo. 507; Davis v. Kline, 76 Mo. 312; Sec. 2231, R. S. 1909.
   GRAVES, J.

Action in ejectment, by petition in ordinary form. Defendant Adda Kirby answered: (1) by a general denial; (2) she avers that the right of possession is in one C. W. Dnrrett, stating the facts from which such conclusion is drawn. Defendant Charles W. Kirby, answers (1) by a general denial as to all matters not expressly admitted, and (2) admits that he was the former owner in fee of the land, but avers that C. W. Durrett is now the owner and entitled to the possession thereof. Defendant Linton was a tenant of Charles W. Kirby, and so answers, stating the terms of the tenancy.

C. W. Durrett, by leave of court, filed an intervening petition, by which he claimed title and the right of possession to said land by and through a trustee’s deed under a foreclosure of a deed of trust executed by Charles W. Kirby, to Cálvin Carder, trustee, of date March 22, 1911. The answer to Durrett, and replies to answers of defendants, were general denials. Plaintiff had judgment and the intervening petitioner. Durrett, has appealed.

Actions touching the issues involved in the instant case have been in this court heretofore. [Bank v. Kirby, 175 S. W. 926; Bank v. Kirby, 190 S. W. 597.] The records and judgments in these two cases are interAvoven in the facts of the instant case. They are also, in a way, injected into the pleadings of this case. A historical review of the whole transaction will not be Avithout good purpose.

Charles W. Kirby and his wife, Adda Kirby, lived at Stronghurst, Illinois. October 15, 1909, they executed and delivered to Elmer E. Taylor, notes aggregating $7500, which they attempted to securé by mortgage on 200 acres of land in Knox County, Missouri, the land involved in the instant suit. Taylor assigned the notes and mortgage to the First National Bank of Stronghurst, April 12, 1911, and said bank brought suit in the Circuit Court of Knox County to foreclose this mortgage, and Kirby and wife, supra, were the defendants. This was Cause No. 6901 in the Circuit Court of Knox County, and. upon appeal here, by plaintiff, it was this land as an estate by the entirety. So it seems to have been tried below, and so it was treated here. [175 Cause No. 16935 in this court. [175 S. W. 926.] In 175 Southwestern it is erroneously stated to be Cause No. 16835, but our files show it to be No. 169S5. In this Cause No. 6901, Adda Kirby, by verified answer, averred among other things that she and her husband held S..W. 926, supra.] We find upon looking at the old abstract it was admitted to be an estate by the entirety. When here we ruled that the circuit court properly found that the mortgage had not been acknowledged, but as the estate was one by entirety the mortgage was good as between the parties, and could be foreclosed. We also ruled that there was no final judgment against Adda Kirby and that the suit was prematurely brought. The cause was reversed and remanded. But it must- be borne in mind that Charles W. Kirby not only failed to plead in said Cause No. 6991 in Knox County (No. 36935 in this court), but did not appeal from the judgment of foreclosure as to his interest in the land.

Whilst Cause No. 6901 from the Knox Circuit Court was pending here upon appeal, the plaintiff therein caused special execution to be issued as against Charles W. Kirby and his interest in the land, and it is under the sale and deed from the sheriff under this special execution that plaintiff claims title. This special execution was issued November 6, 1913, and sale was had thereunder in June, 1914.

•March 23, 1915, after the reversal of the judgment as to Adda Kirby said Cause 6901 from Knox County Circuit, the First National Bank of Stronghurst brought another suit of foreclosure against Charles W. and Adda Kirby, in the Circuit Court of Knox County. This was Cause No. 7272 of that court. In this cause Charles W. Kirby plead that the judgment in Cause No. 6901 was res adjudicata, and a bar to Cause No. 7272, as to him. The circuit court upon trial so held, and again he did not appeal. In Cause No. 7272, the defendant Adda Kirby disclaimed that the estate was one by entirety (in 175 S. W. 926, we had held that with such an estate her mortgage was good although not acknowledged), but averred that her husband Charles W. Kirby was the owner in fee and she only had an inchoate right of dower. Notwithstanding this answer and evidence tending to prove it, the trial court held (in Case No. 7272) that the unacknowledged mortgage was binding upon Adda Kirby, and her inchoate right of dower. As said above, the court, in Case No. 7272, ruled that the judgment in No. 6001 was res adjudicata as to Charles W. Kirby, and he went no further. Adda Kirby appealed to this court, and Case No. 7272 in Knox Circuit Court became Case No. 19027 in this court. [190 S. W. 597.] In this cause this court held that whilst an unacknowledged deed of trust would (as between the parties) bind both husband and wife as owners of an estate by the entirety, yet such an unacknowledged instrument would not convey (even as between the parties) inchoate dower. We therefore reversed that judgment, and directed the circuit court to set aside its judgment so far as it affected the appellant Adda Kirby, and to dismiss the cause as to such appellant.

The record in this case would tend to show that Adda Kirby falsified when, in her verified answer in Case No. 6901, she averred that she and her husband held the lands as an estate by the entirety. The verification of the answer no doubt prompted the admission of record in the first case. This record shows the common source of title to be John M. Harkness. It then shows a warranty deed from John M. Harkness and wife to Charles W. Kirby. But be this as it may, plaintiff claims under the sheriff’s deed aforesaid.

Now for Durrett’s claim of title and possession. On March 22, 1911, Charles W. Kirby (not joined therein by his wife) made and executed to Calvin Carder, as trustee, a deed of trust on the lands in question, to secure the payment of two notes (aggregating $6500) given by Kirby to his wife Adda Kirby. On October 21, 1915, the sheriff of the county, as successor trustee, sold the lands under this deed of trust, and executed a trustee’s deed to Durrett, as the purchaser at such sale. The intervener, Durrett, claims title and the rigid of possession under this deed. This sufficiently outlines the case.

I. There are some harsh features in this case growing out of the false averment in Adda Kirby’s answer in Cause No. 6901, to the effect that she and her husband held .the land as an estate by the entirety. The case seems to have proceeded nisi, and here, on that theory. [Bank v. Kirby, 175 S. W. 926.]

In the instant case (a possessory action in ejectment) plaintiff showed: (1) a conveyance from the admitted common source of title to Charles W. Kirby; (2) a deed of trust from Kirby and wife to Taylor; (3) an assignment of notes and deed of trust to First National Bank of Stronghurst by Taylor; (4) the judgment of reversal by this court of the judgment in No. 6901, so far as Adda Kirby was concerned (she being the only appellee), but with a holding that the deed of trust was good between the parties; (5) special execution as against the interest of Charles W. Kirby’s interest in the land; and (6) the sheriff’s deed under such special execution to the plaintiff in this case.

The right of plaintiff to recover is dependent upon the validity of that deed. The appellant urges that the failure of the respondents to introduce in evidence the judgment upon which the special execution was issued creates a break in plaintiff’s chain of title, and for that reason the plaintiff should not have been permitted to recover. There is no substance in this contention of the appellant. It has long been held that the recitals in the sheriff’s deed are prima-facie evidence of the facts therein set forth, and that the introduction of the judgment under which the sale was made is not required to make a case. [McCormick v. Fitzmorris, 30 Mo. l. c. 32; Samuels v. Shelton, 48 Mo. l. c. 449; Jordan v. Surghnor, 107 Mo l. c. 524; Scharff v. McGaugh, 205 Mo. l. c. 357. See also R. S. 1909, sec. 2231.]

If the opposite party desires to impeach the recital of the sheriff’s deed, he has the right and privilege of so doing, but if the deed is a valid one on its face, the plaintiff makes out a case by the introduction of the deed, without the judgment out of which the sale and deed grew. When we say above that the party has the privilege to attack a deed, regular and valid upon its face, we do not mean that it can be done in a collateral proceeding, as in this proceeding. But of this subject later.

II. The deed does not recite a levy upon the lands sold. The statute (Section 2231, Revised Statutes 1999,) requires no such recitation. We have so held for many years. [Hunter v. Miller, 36 Mo. l. c. 147: Shelton v. v. Franklin, 224 Mo. l. c. 367; Butler v. Imhoff 238 Mo. l. c. 595.] The deed does recite the date of the judgment, the parties to the judgment and the execution, the date of -the execution and its receipt by the sheriff. It also avers that the special execution recited that such judgment is a lien and charge upon the real estate. It recited fully the particulars of the execution, as also the description of the land, and the manner of notice and all details as to the sale. In fact under the rulings, supra, as well as under others that might be cited, the deed is valid upon its face.

III. The judgment in Cause No. 6901 was not introduced in evidence by either party. Counsel for appellant have printed it in their brief, hut that does not put it in the record. The special execution is jjj the record, as is also the notice of sale. Among other things the special execution recites “‘which said debt and costs were declared a lien and charge upon the following described property.” The property described was the land sold, and the party named as execution debtor was Charles W. Kirby, the non-appealing defendant in Cause No. 6901.

Several of appellant’s contentions are eliminated by reason of the absence of this judgment from the record. Charles W. Kirby did not appeal from this judgment, hut when the bank instituted another suit of foreclosure, (Cause No. 7272) he did appear, and plead the judgment iii Cause No. 0901 as res adjudixita, and got the court to so hold. This judgment he abided, as did also the bank, but Adda Kirby appealed, and secured a reversal of the jugment as to her. [Bank v. Kirby, 190 S. W. 597.]

An examination of our opinion (175 S. W. 597) when the hank case was first here indicates that the appeal was as against Adda Kirby only. We then said: “While the attack made by this appeal is founded exclusively upon the alleged error of the circuit court in giving judgment for the defendant Adda Kirby, there is in fact no such judgment..” Going to the old files in that case we find this statement in the abstract of record: ‘ ‘ This appeal was taken as to the interest of defendant Adda Kirby, only.” The whole proceeding so shows. No additional abstract was filed. There was no reason for the plaintiff in Case No. 6901 to disturb the judgment as to Charles W. Kirby, for thus far it was in its favor. Charles W. Kirby recognized that it had not been disturbed as to him when in Case No. 7272, he plead as res adjudicata the judgment in Case No. 6901. So that it can be said that there was a subsisting judgment against Charles W. Kirby at the date of the special execution under which the sale was made. So far as the showing made in the present record is concerned, it was not a void judgment.

IY. As a fact the sale under the special execution was not made at the first term, of court after its issuance, but was made at the second term of the court after its issuance. The land was advertised f°r sa^e a^ the first term after the issuance of the special execution, but the parties stipulated that the sale should be called off in view of a possible settlement of the matter. The last clause of the agreement reads:

“7. It is expressly stipulated that February 1, 1914, shall be fixed as the limit of time allowed for the performance by said Adda Kirby and Charles W. Kirby of the stipulations herein made on their part to be performed, and in the event that said stipulations are not fully performed by that date, then the plaintiff has the option to again advertise and sell the interest of said Charles W. Kirby in said real estate, and in that event, the said Charles W. Kirby hereby expressly waives his right of redemption from such sale, and also his right of appeal, by writ of error, or otherwise, from the decree in said cause rendered.

“Date this 5th day of December, A. D. 1913.”

The previous portions of the stipulation and agreement set out the things to be done by Charles W. Kirby and Adda Kirby to effect the proposed settlement. This agreement was signed by both Charles W. Kirby and Adda Kirby and by counsel for the bank, the opposing party. The parties are in jpoor grace urging this point. But in our judgment the law is well settled. The sale was not invalid because made at the second term of the court. The statute contemplates such a sale. [R. S. 1909, sec. 2228.] We have so expressly ruled. [Huff v. Morton, 94 Mo. l. c. 409. See also Lackey v. Lubke, 36 Mo l. c. 122, and Butler v. Imhoff, 238 Mo. 584.]

This contention of the appellant cannot be sustained.

V. Whilst neither the plaintiff nor the defendants nor intervener introduced the judgment under which the sale was made, the plaintiff did introduce the special execution, the notice of sale, and the sheriffs deed. These are therefore in the record. This notice says that the sheriff will sell “all of the undivided interest of the above named defendant, Charles W. Kirby, in and to the following described lands.” (Here follows the description of the lands.) Then follows in the notice the following paragraph:

“The said defendant, Charles W. Kirby, owns all the above described lands, as tenant by the entirety, jointly with the above named defendant, Adda Kirby, and the interest of the said defendant, Charles W. Kirby, in and to all the lands above described will be sold to satisfy a judgment or decree of foreclosure rendered against him by the said Knox County Circuit Court.”

The execution contains no such recital, nor does the deed made by the sheriff contain such a recital. The execution says the debt and costs were declared- a lien upon the land, and directs that the debt and costs be made out of such land. The recitations of the deed follow those of the execution. Appellant contends that this notice shows that the interest in the lands sold was not the interest conveyed by the deed, as we gather their point.

By way of parenthesis it should be said that the appellant in the brief has made no formal assignment of error, but under the head of “Points and Authorities” has engaged in a running fire of points, authorities and arguments. This is no doubt the result of having coun - sel from other states in the case. In fact, it is a close question as to whether or not we should not dismiss the appeal for failure to comply with our rules. However, we have attempted to get the points made as best we could. Now grant it that this notice of sale is irregular, the deed (which is regular and valid upon its face) cannot be thus attacked in this collateral proceeding. Thus in 24 Cyc. 21, it is said: “The fact that proper notice of a judicial sale has not been given is always a sufficient ground for refusing to confirm or setting aside the sale; but according to the weight of authority it is a mere irregularity which renders the sale voidable only and not void.”

A voidable sale or a voidable deed cannot be attacked in a collateral proceeding. This must be done in a direct proceeding. Only void deeds or void proceedings are available for collateral attacks.

The rule above from Cyc. has long been the rule in this State. In the early case of McNair v. Hunt, 5 Mo. l. c. 309, it is said: “It appears from the cases cited that, in Spain, thirty days notice were at some remote period required, and probably still are, but for what reason the crown of Spain could require thirty days’ notice to be given in this then colony, I am unable to see. But even if that were the law, I should say that the act of the sale was merely voidable, and could not be now questioned in a collateral suit. ’ ’

No notice could be much more defective than one not given for the required time. The rule in the McNair case is reannounced in Robbins v. Boulware, .190 Mo. l. c. 48, whereat the McNair case, supra, and other Missouri cases are cited and discussed. The result of the rule is that the deed is not void, but at most only voidable, and being only voidable must be attacked in a direct proceeding, and can not be attacked in a collateral proceeding.

VI. Another contention is, that inasmuch as the deed of trust from the Kirbys to Taylor was not acknowledged it wms not entitled to record, and its' record imparted no notice to Carder, the trustee in the deed of trust made by Kirby to secure alleged notes to his wife, nor notice to Durrett, the purchaser at the foreclosure. This calls for further facts. The deed of trust from Charles W. Kirby and wife, Adda Kirby, had this certificate thereon:

State of Illinois County of Henderson.
On this 20th day of October, 1909, before me personally appeared Charles W. Kirby and Adda Kirby, bis wife, to me known to be the persons described in, and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed.
Witness my band and official seal. My Term expires -190 — .
J. F. McMillan,
Notary Public Henderson County, Illinois.
My commission expires Feb. 14, 1913.

This is a good certificate and regular upon its face. It entitled the instrument to record. What appellant has in view, is, that in Case No. 6901 the trial court found that, notwithstanding this certificate of acknowledgment, as a matter of fact the notary public did not in fact take the acknowledgment of the parties. This alleged and afterward established defect was hidden and did not appear upon the instrument. Under the Missouri rule it was not only the duty of the recorder to record this instrument, which was fair upon its face, hut it (Avhen recorded) imparted notice to subsequent purchasers.

In Stevens v. Hampton, 46 Mo. l. c. 408, Judge Bliss, thus states the rule: “In vieiv, then, of the acknowledgment as affecting the right of record and the question of constructive notice, the following would seem to be a reasonable rule; that when the recorded instrument shows upon its face that the acknowledgment was taken by a party, or party in interest, -it is improperly recorded, and is no constructive notice; but when it is fair upon its face it is the duty of the register to receive and record it} and its record operates as notice notioithstanding there may be some hidden defect.” The italics are ours.

To like effect the rule is stated in 1 Cyc. p. 530, whereat it is said: “But where an instrument bearing a certificate of acknowledgment or proof which is regular upon its face is presented to the recording office, it becomes his duty to record it, and the record thereof will operate as constructive notice, notwithstanding there be a hidden defect in the acknowledgment.” The cases hearing upon the rule are collated by the learned author, and among them is Stevens v. Hampton, 46 Mo. 404, supra. In 1 C. J. 773, the same rule is announced, and a further collation of authorities given.

The rule is a sensible one. The recorder of deeds cannot hold inquiry as to defects not apparent upon the face of the instrument. It follows that the recording of the deed of trust from Kirby and wife to Taylor was notice to the world. The contention of appellant must he ruled against him. He not only bought with notice of the prior deed of trust, hut he bought after the foreclosure of Kirby’s interest, and after the sale to plaintiffs herein, and after plaintiff’s deed was of record. He was not a purchaser without notice, nor was the trustee from whom he bought.

VIII. The foregoing cover the substantial conten tions of appellant, as we have been able to sort them from a mass of irrelevant matter. From it all, the judgment below was well founded in law, and most certainly (from the stand point of good morals) for the right party. The conduct of Kirby and wife has not been such as to appeal to a court.

The judgment is affirmed.

Blair} P. J., and Bond, J., concur; Woodson, J., absent.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    THE STATE ex rel. PUBLIC SERVICE COMMISSION v. MISSOURI SOUTHERN RAILROAD COMPANY, Appellant.
    Division One,
    July 9, 1919.
    1. RAILROAD: Mandamus: Compelled Operation. A railroad company in possession of its road may be compelled by mandamus to operate its road in accordance with the positive requirements of its charter, and mandamus is the proper remedy to compel a railroad to perform a definite duty to the public.
    2. -: Abandonment of Spur Track: Without Permission. Since the enactment of the Public Service Commission Act of 1913 a railroad company, engaged in operating a spur or branch line, cannot determine for itself the question- of its right to abandon such line, but it must apply to the Public Service Commission for leave to abandon, and may be compelled by mandamus to continue operating such spurs or branches until the Commission has acted and its order has become final.
    3. -: -: -: Decrease in Freight Rates. And notwithstanding the Public Service Commission refused to permit the railroad company to charge increased freight rates asked for over the spur tracks it was operating in submission to the Commission, it cannot, without the permission of the Commission, abandon the operation of such tracks on the ground that they cannot be operated profitably at the rates permitted, but its duty is to apply to the Commision for such permission or for such adjustment of the rates over its entire line as 'will not work a hardship.
    4. -: -: Operated at Loss: Confiscation. That an order of the Public Service Commission or a judgment of court concerning a particular facility or a portion of the line of a railroad company may result in some financial loss does not necessarily bring it in to conflict with the provisions of the Constitution relating to due process of law and equal protection of the laws.
    5. -:-: Confiscation: Raised in Mandamus. In a mandamus brought by the Public Service Commission against a railroad company to compel it to operate certain spur tracks which it has abandoned without permission, the question of whether the order to operate, if obeyed, may result in financial loss to the company and therefore be in conflict with the Constitution, has no place.

      Appeal from Jefferson Circuit Counrt. — Ron. E. M. Dearing, Judge.
    . Affirmed,.

      J. B. Daniel for appellant.
    (1) The trams in question are not railroads or parts of the railroad of appellant within the meaning of the Public Service Act or any other Missouri statute. Palm v. New Haven & Hartford Railroad Co., 17 N.' Y. Supp. 471. '(2) Neither the Public Service Commission nor the courts have power to require appellant to furnish transportation not included in the exercise of its franchise. Palm v. Railroad Co., supra; Northern Pacific Railway v. Teratone, 142 U. S. 492; Elliott on Railroads (2 Ed.), sec. 457; People ex rel. Yan Dyke v. Colorado Central Railway, 42 Fed. 638; State ex rel. United Railways Co. v. Public Service Commission, 270 Mo. 429. (3) Mandamus is a discretionary writ, and, if the law would warrant its issue in any case to compel a railroad company to perform an act not included in the exercise of its franchise, the granting of the writ in this case was a gross abuse of the discretion of the court. State ex rel. Caster v. Kansas Postal Telegraph-Cable Co., 150 Pac. Rep. 549; State ex rel. Lyons v. Bank, 174 Mo. App. 593; State ex' rel. Crow v. Bridge Co., 206 Mo. 74; Merril on Mandamus, sec. 62; State ex rel. Railroad Co., 199 Mo. App. 671. (4) The judgment rendered herein confiscates the property of appellant in violation of Section 1 of Article 14 of the Constitution of the United States and in violation of Section 20 of Article 2 of the Constitution of Missouri.

      A. Z. Patterson, General Counsel, and J. D. Lindsay, Assistant Counsel, for Public Service Commission.
    (1) The railroad company’s conduct in assuming the functions of a chartered common carrier in the operation of its branch lines or tracks fixes its responsibility and obligations, and determines its duty to obey the laws applicable to chartered common carriers. Terminal Taxicab Co. v. District of Columbia, 241 IT. S. 252; Diamond v. Northern Pac. Eailroad Co., 6 Mont. 580; 33 Cyc. 651. (2) A company will be held to be “operating” a railroad within the meaning of regulatory statutes if it runs trains on a track for any purpose. Webb v. South. Mo. Ey. Co., 92 Mo. App. 53. (3) The Public Service Act has conferred upon the Public Service Commission the power to determine whether a railroad branch line or track, long established and operating, should be abandoned. State ex rel. Caster v. Kansas Postal Tel. Co., 150 Pac. 544, P. IT. E. 1915E, p. 222; Articles 2 and 3, Mo. P. S. C. Law. (4) Though appellant’s operation of its branch lines and spur tracks was conducted at a loss, it should have applied to the Public Service Commission for permission to discontinue such operation, and it was unlawful to cas operation un-til such permission had been granted. State ex rel. Caster v. Kansas Postal Tel. Co., supra.
   BLAIR, P. J.

Upon entry of the order considered in Missouri Southern Railroad v. Public Service Commission, a companion case, appellant attempted to abandon the operation of the spur tracks to which the Commission’s order applied. Complaint was made, and the Commission ordered its counsel to institute such legal proceedings as might be effective to compel a continuance of the carriage of freight over the spurs. Counsel thereupon instituted this proceeding by mandamus, and, upon the filing of the return, relator filed its motion for judgment, which was sustained and a peremptory writ awarded. This appeal followed.

The return makes numerous formal admissions and then admits appellant’s ownership and operation of its main line, and “that for several years prior to July 23, 1917, respondent [appellant here] maintained and operated two lateral spur tracks, known respectively as Industrial Spur Tracks Nos. 1 and 2,” giving their lengths, “on which spur tracks respondent has, tip to July 23, 1917, supplied cars to shippers at various points along said industrial spur tracks for the shipment of lumber, ties and other commodities in carload lots, other than live stock and perishable freight, and that respondent- offered said service, so long as furnished, as aforesaid, to the public generally, on equal terms;” admits that in May, 1916, it filed ■with the Commission tariffs applying to the spur tracks, and that “ these tariffs provide that all carload traffic, except live stock and perishable freight, will be switched between main line stations and loading yards on such spur tracks at a charge of $7.50 per car;” admits that on July 23, 1917, it abandoned all freight service on the spur tracks. The return then avers that the spurs were constructed in 1900 by an incorporated saw-mill company, owning timber near the spurs, and operating saw and planing mills at Leeper, and were constructed to transport that company’s timber to appellant’s railroad; that the saw-mill company had no ties, switches, track fastenings and bolts in said” spur until it completed' its work, and then sold the “rails, ties, switches, track fastenings and bolts in said” spur tracks to appellant; that thereafter appellant agreed with certain owners of timber in the vicinity of the spurs “to place cars for shipment, in carload lots, of freight other than live stock and perishable freight and to move the same when loaded to its railroad for five dollars per car; that thereafter, for the accomodation of all persons who might desire such service, respondent [appellant here] published tariffs showing that while it operated said industrial spur tracks it would extend the contract aforesaid to all persons so desiring such service;” that thereafter the spur tracks, as tonnage failed near their extremities, were in part abandoned and taken up, and they were gradually reduced to their present length; that in 1914 appellant concluded the exhaustion of timber had progressed so far that further operation of the spurs would, he abandoned; whereupon certain .persons agreed with appellant that if it would repair the spurs for their then length and operate them for two years, these persons would furnish their timber for transportation over the spurs and pay 'appellant $7.50 per car transported; that appellant accepted the contract “on the condition that the same was approved by relator;” thereafter appellant “filed with relator said contract and prayed the approval of relator thereof; that respondent [appellant] was advised by relator that tariffs in conformity therewith would be filed by relator, when offered . . . if not objected to;” that appellant repaired the spurs at great expense, and filed tariffs as alleged in the application for the writ; that thereafter J. M. Mooney, a party to the contract above mentioned, filed with relator a complaint praying that appellant be required to “operate said industrial spur tracks as a part of its main line” and to he prohibited from collecting charges therefor in excess of those applicable to “any other part of the railroad;” that a hearing on this complaint was had, and the Commission found appellant had expended $5049.30 for repairs of the spurs; that for one year of operation on the spurs appellant had collected (switching charge) $2910; that the spurs contain five and eight per cent grades; that relator refused to pass upon the question whether appellant had a right to abandon the spurs, and found that the relation of common carrier existed between appellant and the public with respect to the spurs, and held that “as long as that relation exists” appellant will he “required to treat the industrial- spurs the same as other parts of its line in the application of freight charges upon carload traffic other than live stock and perishable freight, and will he prohibited from charging the switching charges for the movement of freight on said spur; . . . that this order tokk effect upon July 23, 1917, and on that date appellant” elected to abandon the operation of said industrial spur tracks rather than suffer relator to confiscate its property hy the order aforesaid; and did abandon and refuse to operate the spurs.

It is then averred that in November, 1915, relator made an order prescribing rates for appellant’s railroad and that an appeal from that order is pending-; that under the rates in force appellant was not receiving adequate compensation; that the order of July 23, 1917, denying the right to enforce the $7.50 switching charge, further reduced appellant’s revenue $2000 per year, “and the commission in that case refused to grant to it higher rates or any other revenue from any other source, and the continued operation of Industrial Tracks 1 and 2 under said order would constitute a confiscation of respondent’s property to the extent of $2000 per year; wherefore, it says the Public Service Commission is estopped to complain that it ceased the operation of said trams, and the respondent [appellant] on that account had a right to abandon the operation of said industrial tracks;” that in its answer to Mooney’s complaint, appellant pleaded “that any reduction of its revenue, not compensated in some way by an increase elsewhere, would operate as a confiscation of the property” of appellant, in v-iolation of Section one of the Fourteenth Amendment to the Federal Constitution and of Section 30 of Article 22, of the State Constitution, and appellant “now pleads the provision aforesaid” of the Constitutions “in bar of the right of relator to the writ of mandamus prayed for in this action.” The return then avers relator’s authority to require appellant to operate the spurs is given solely by Section 110 of the Act of 1913, which requires a hearing, and no hearing has been had; that if Section 64 of the same act authorizes this proceeding,' which relator denies, still the writ should be denied because the spurs were built without a grant from the State, the operation thereof was voluntary, and appellant had the right to abandon them for good reason or no reason; that appellant never had charter authority to build or acquire the spurs, and that while its action in acquiring and operating said industrial spur tracks may have been and were unlawful and without authority, and the State may compel” appellant to cease such ultra vires operatiou, it and relator are without authority to compel a continuance of such activities.

The contentions in the brief are that (1) the spurs are neither railroads nor parts of appellant’s railroad within the meaning of the law; (2) neither the Public Service Commission nor the courts have power to compel appellant to furnish transportation -not included in the exercise of its franchise;” (3) mandamus is a discretionary writ” . . . and the granting of this writ in this case was a gross abuse of the discretion of the court; and (4) the judgment rendered confiscates appellant’s property and thereby violates both the State and Federal constitutions.

I. The question whether the spur tracks fall within the regulatory power of the Commission is decided in Missouri Southern Railroad. Company v. Public Service Commission, page 484, a companion case.

II. ££It is settled that a railroad company in possession of its road may be compelled by mandamus to operate its road in accordance with the positive re-requirements of its charter.” [Elliott on Railroads (2 Ed.), sec. 458.] It is also the law that mandamus is the proper remedy to compel a railroad to perform a definite duty to the public. [Northern Pacific R. R. Co. v. Dustin, 142 U. S. 492; Railroad Co. v. Hall, 91 U. S. 343.]

Let it be conceded that under the general law in force prior to the adoption of the Public Service Commission Act in 1913 the facts in this case would not have warranted .the writ issued by the trial court, and that under the then law the rule in People v. Railroad, 42 Fed. 638, cited by appellant, would have applied. This case presents a different question, i. e. can a railroad since the passage of that act, engaged in operating ‘a spur or branch line, determine for itself the question of its right to abandon such line and act upon such determination, or must it apply to the Public Service Commission for leave? If it must so apply, can it be required to continue operating such line until the Commission has acted and its order has become final?

Section. 64 of the Act of 1913 (Laws 1913, p. 600) makes it the duty of the Commission, whenever a carrier is doing or about to do anything in violation of law or an order of the Commission, or is omitting or about to omit to do anything required by law or order of the Commission, to direct its counsel to proceed in the courts by injunction or mandamus to correct or prevent the evil. Section 2 (Laws 1913, pp. 557, 558) defines a railroad as every railroad (except street railroads) “by whatever power operated for public use in the conveyance of persons or property for compensation, with all bridges, ferries, tunnels,. equipment, switches, spurs, tracks, stations, real estate and terminal facilities of every kind used, operated, controlled or owned by or in connection with any' such railroad. (Italics ours.) The term “rate” is defined as including, among other things, “switching charge.” [Laws 1913, p. 560.] The jurisdiction of the Commission extends to all “railroads” within the State and “to the person or corporation owning, leasing, operating or- controlling” them. [Laws 1913, p. 565.] The term service “is used in its broadest and most inclusive sense and includes . . . the plant, equipment, apparatus, appliances, property and facilities employed ... in performing any service.” [Laws 1913, p. 560.] The Commission is expressly vested with “the powers and duties in this act specified, and also all powers necessary or proper to enable it to carry out fully and effectually all the purposes of this act.” [Sec. 3, p 561.] Section 26 provides that Article 2 of the act shall apply to the transportation of passengers and property . . . within this State and to any common carrier performing snch service. Section 27 provides that every carrier transporting persons or freight “shall furnish, with respect thereto, such service and facilities as shall he safe and adequate and in all respects just and reasonable,” and prohibits excessive charges therefor. Section,29 requires the carrier to file with the Commission full schedule of all rates and gives the Commission supervisory powers over the form, posting and filing of tariffs. Section 31 provides that no change shall be made in any “rate, fare or charge, or. joint rate, fare, or charge” on file, except upon notice, unless otherwise ordered by the Commission. Under Section 35 no carrier is permitted to transport persons or property until it has filed and published tariffs, nor can it charge any rate other than those filed and published. Section 43 provides that “the Commission shall have general supervision of all . . . railroads . . . and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines and property, owned, leased, controlled or operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all the provisions of the law, orders and decisions of the Commission and charter requirements.” Sections 44 and 45 empower the Commission to require annual reports of detailed information concerning the carrier’s affairs and to investigate accidents. Section 46 provides that the Commission may investigate any act or omission of carriers, and shall investigate any act or omission violative of law or an order of the Commission. These things the Commission may do of its own motion or on the complaint of an aggrieved person. Section 47 authorizes' the Commission to regulate fares and the “regulations or practices” of carriers and “determine the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and services thereafter to be in force, to be observed and to be used in such transportation of persons and property, and so fix and prescribe the same . . . ; and thereafter it shall be the duty of” the carrier to observe these .orders. The Commission is empowered to require carriers to form a continuous line where feasible and establish joint rates and fares, and to operate through cars over connected lines. Section 48 provides that any new rate or practice affecting rates may be stayed by the Commission. Under Section 49 the Commission may order repairs, improvements, changes and additions. Further (Sec. 51) the Commission may require additional trains or equipment. Railroads (Sec. 53) cannot be constructed or extended without a certificate from the Commission. Supervision over the issuance and sale of stocks and sale or transfer of franchises and reorganization is given the Commission. All the powers of the Commission (Sec. 106) are enforcible in the courts by proper action brought by the counsel of the Commission.

In State ex rel. v. Postal Telegraph Co., 96 Kan. 298, the Supreme Court of Kansas had before it a case involving the principle determinative of this case. That was a proceeding by mandamus to compel respondent to re-establish its telegraph office at Syracuse, abandoned because it proved unprofitable. Under a Public Utilities Commission Act substantially like our act so far as concerns relevant provisions, the Kansas Supreme Court held the company could not abandon the Syracuse office without applying to the Public Unitilities Commission for authority to do so.

In this State, as in that, the act provides a complete system for the regulation and control of public service corporations. [State ex inf. v. Gas Co., 254 Mo. l. c. 534.] The act adds to the powers expressly given to the Commission all others necessary to the full and effectual exercise 'of those powers. All rates, fares, facilities, service and equipment and changes therein fall within the authority of the Commission. Adequate service and facilities are expressly required to be furnished. Questions relative to these things are to be determined by the Commission. Appellant was operating spur tracks which are included in terms in the act. Can appellant abandon this service without applying to the Commission for leave to do so? If so, any carrier can abandon any service without such leave, and, doubtless, change fares and take off equipment, whenever it comes to the conclusion that the facts justify such action. If this course be lawful, the Commission will become little more than a figurehead so far as carriers are concerned, and its powers can be ignored or invoked as the carrier may desire. In this case the carrier was operating in submission to the Commission and under rates on file. A rate was changed. Instead of applying to the Commission for an increase elsewhere or for leave, to abandon the service, the carrier said, in effect, that it would not submit to the change, but would take up the track. It may be it is entitled to an order permitting it to do so. It should have applied to the Commission for the leave. Unless the power of the Commission to pass on this question is conceded, then it is apparent the exercise of some of its express powers is conditioned upon the consent of the carrier. The express power of the Commission over facilities, equipment and construction and changes therein and over the operation of trains (Secs. 49, 51, Laws 1913, pp. 588, 590) is of no avail if appellant’s contention is sound. As was said by the Kansas Supreme Court: “If these utility corporations may abandon this particular service without the consent of the Commission, may they not take off their passenger trains, take up and abandon unprofitable branch lines, change the fares and rates of transportation for passengers and freight, or raise the charge for telegraph messages without the consent of the Commission? These questions answer themselves. To yield approval to the contention of defendants is to concede that the State’s program for the regulation and control of public service corporations is ineffective; that the public utilities act has been enacted in vain.” [State ex rel. v. Postal Tel. Co., supra.] The case is in point on facts and law, and we think the conclusion drawn is sound. Appellant should have taken before the Commission the question of its right to abad on the spur. If the finding of the Commission was unfavorable, a review thereof could have been had in the courts in the usual way.

III. There is no valid constitutional objection to the judgment. The general scheme of rates and compensation was not involved. That an order of a Commission or a court concerning a particular facility may result m some financial loss does not necessarily bring it into conflict with the Constitution. [Atlantic Coast Line v. Commission, 206 U. S. 1.] Further, this question is not in this case. It might better be presented in a proper proceeding for leave to abandon the spurs.

Other questions raised are decided in Missouri Southern Railroad v. Pub. Serv. Commission, page 484, a companion case.

The judgment is affirmed. Graves, J., concurs; Bond, J., concurs in the result; Woodson, J., absent.


text:
    NINA THREADGILL, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS.
    Division One,
    July 9, 1919.
    1. TESTIMONY: Competency: Abandoned Objection. An objection to the competency of a witness as an expert, for whom the court stated'a reason why he was" competent, to which no objection was made, after which the witness testifies without further objection, must be considered as having been abandoned.

      2. -: Harmless Conclusion. Where plaintiff had testified that as her automobile turned east to cross the railway tracks she saw a north-bound street car “coming at a rapid rate of speed and at a distance of seven or eight feet from the machine,” no harm was done by the statement of a witness for defendant who testified that the street car was not more than eight or ten feet distant when the automobile turned across the track and he “saw they could not help but get hit when they turned across there.”
    3. -: General Objection. A mere objection to certain testimony and a mere motion to strike it out, both in the most general terms, no reason being assigned for either the objection or the motion, will not save for review on appeal the court’s ruling overruling the motion.
    4. AUTOMOBILE: Highest Care Required of All Drivers: Negligence Imputed to Owner. The negligence of a seventeen-year-old son of plaintiff, who was the driver of the automobile owned by her and in which she was riding, is imputable to her, and the law imposes upon the driver, and consequently upon her, the duty of exercising the highest degree of care for the safety, not only of pedestrians and other travelers on the public street, but for herself as well; and if she is injured as the result of the collision of her automobile with a street car, she cannot recover unless her driver was at the time exercising the highest degree of care.
    5. -: -: Statute: Contributory Negligence. The statute (Par. 9, sec. 12, p. 330, Laws 1911) requiring any person owning, operating or controlling an automobile running on or across public roads, streets or other public highways, to use the highest decree of care that a very careful person would use under like circumstances, to prevent injury to persons on such highways, and making an owner or driver failing to use such care liable for damages to any person injured, requires such driver or owner to exercise the highest degree of care to avoid collisions with street cars and other automobiles and thereby to avoid injuring himself, as well as pedestrians and travelers on the street. It supplants the common-law rule which requires such driver or owner to be in the exercise of only reasonable or ordinary care for his own safety, and makes his failure to exercise the highest degree of care contributory negligence. [Disapproving Advance Transfer Co. v. Railroad, 195 S. W. (Mo. App.) 1. c. 568, and Hopkins v. Sweeney Automobile School Co., 196 S. W. (Mo. App.) 772.]
    Appeal from St. Louis City Circuit Court. — Eon. Leo 8. Rassieur, Judge.
    Appibmed.

      R. P. and C. B. Williams for appellant.
    (1) The trial court erred in instructing the jury that the driver of the automobile was required to exercise the highest degree of care which a very careful person would exercise under the same or similar circumstances' at the time and place mentioned in "the evidence before plaintiff could recover. Advance Transfer Co. v. Chicago-Pac. Bailroad Co., 195 S. W. (Mo. App.) 566; Hopkins v. Sweeney Automobile Co., 196' S. W. (Mo. App.) 772; Nichols v. Kelley, 159 Mo. App. 20; Jackson v. Southwestern Bailroad Co., 189 S. W. (Mo.) 381. (2) It was error for the trial court, over the objection of the plaintiff, to permit a witness for the defendant to testify what should have been done and what should not have been done at the time of the accident to bring the driver within the rule of proper conduct. (3) The court erred in permitting a witness for the defendant, over the objection of the plaintiff, to testify that he knew the machine was going to be hit when the driver turned across the street.

      T. E. Francis, S. P. McChesney and Chauncey H. Clarice for respondent.
    (1) The court did not err in instructing the jury that it was the duty of the operator of the automobile to exercise the highest degree of care which a very careful person would exercise under the same or similar circumstances, since the duty to exercise such care was enjoined upon him by statute.. Laws 1911, pp. 326, 327, 330. England v. Southwest Missouri Bailway Co., 180 S. W. 34. (2) Appellant’s second point, that the court erred in admitting evidence concerning what a careful chauffeur would have done, on the ground that such testimony was not a proper subject of expert testimony, cannot be considered by this court for the reason that no such objection was made in the trial court. Breen v. United Bys. Co., 204 S. W. 522; Kinlen v. Bailroad, 216 Mo. 173; Williams v. Williams, 259 Mo. 250; De Maet v. Fidelity Storage Co., 231 Mo. 620; Torreyson v. United Railways Co., 246 Mo. 696. The only objections interposed below were, (a) that' the witness was not qualified as an expert, and (b) that all the facts necessary for an expert opinion were not hypothesized. (3) Appellant’s third point, that the court erred in permitting a witness to testify that he knew the machine was going to be hit when the driver turned across the street, on the ground that such testimony was a statement of a conclusion, cannot be considered by this court for the reason that no such objection was made in the trial court. Authorities supra; City of Springfield v. Owen, 262 Mo. 104.
   GRAVES, J.

Action for personal injuries received whilst riding in an automobile, which ran into a street car operated by the defendant. The petition charges both common law and ordinance negligence. Several ordinances are plead, and the violation thereof assigned as negligence. A recitation of all the alleged negligence will serve no good purpose, as the plaintiff saw fit to abandon all except two theories of recovery, as shown by her requested instructions. Nor under the assignments of error here is it necessary to set out in detail the diverse defenses urged in the answer. Plaintiff’s theories of a recovery are found in her requested instructions numbered 1 and 2, which read:

“1. The court instructs the jury that it is admitted that on or about the tenth day of January, 1915, there was in full force and effect in the City of St. Louis, the following ordinance: ‘3. Whenever any car is about to pass another car going in the opposite direction near a point where it is permissible to passengers) to alight from or to board a car, said car shall proceed at a rate of speed not over three miles an hour, and the motorman, driver or person in control shall ring a warning gong or bell.’

“Now if you believe and find from tbe evidence that at and prior -to tbe time of the collision in question the driver of the automobile in question knew of the existence of said ordinance and the provisions thereof and if the jury further believe and find from the evidence that on the said tenth day of January, 1915, the automobile in which plaintiff was riding was approaching or' about to approach the crossing at Union and Vernon avenues going east with the intention of passing over defendant’s double tracks and proceeding into Vernon avenue and that while said automobile was so approaching or about to approach said crossing and before the same had proceeded fo a place of danger at said crossing, if you so find defendant’s said street car in charge of its motorman was also approaching said crossing north on Union Avenue near Vernon Avenue and at such time said street car was about to pass or was proceeding in passing another street car going in the opposite direction on the said Union Avenue and near said Vernon Avenue and near a point where it is permissible to passengers to alight from or board a street car, if you so find, then it became and was the duty of the motorman in charge of defendant’s said car going north on said Union Avenue to proceed in passing said street car going in the opposite direction at a rate of speed of not over three miles an hour, and to ring a warning gong or bell; and if you believe and find from the evidence that at such time and place said motorman in charge of said northbound street car ran said car at a rate of speed over three miles an hour, and at such time and place failed to ring a warning gong or bell, then the said motorman was guilty of negligence; and if you so believe and further believe from the evidence that said motorman at said time and place had run his oar at a rate of speed of not over three miles an hour, or that said motorman at said time and place had rung a warning gong or bell, said collision would have been averted; and if you further believe and find from the evidence that such negligence, if any, was the direct cause of the said collision and injury, if any, to plaintiff, then your verdict must be for the plaintiff, provided you further believe and find from the evidence that before and at the time of said collision plaintiff exercised care and caution for her own safety.

“2. The court instructs the jury that if you believe and find from the evidence that on or about the tenth day of January, 1915, Union Avenue in the City of St. Louis at its intersection with Vernon Avenue was a public crossing and a place much used for travel by automobiles and other vehicles, and that on said date one of defendant’s street cars going north on Union Avenue collided with an automobile in which plaintiff was riding while said automobile was being driven across the double tracks of defendant on Union Avenue to enter Vernon Avenue going east, and that plaintiff was injured in said collision; and if the jury further believe and find from'the evidence that while the machine in which plaintiff was riding was approaching the said crossing at Union and Vernon avenues, and before said machine had reached a place of danger at said crossing, if you so find, the defendant’s said street car in charge of its motorman was also approaching said crossing going north, and if you further believe and find from the evidence that the said motorman at the said time in so approaching said corner failed to ring any warning gong or bell and failed to exercise ordinary care to have his said car under control so that the same could be stopped on the. first appearance of danger to vehicles passing over said crossing, and that such failure so to do under the circumstances, if you so find, was negligence, and that such negligence, if any, was the direct cause of the said collision and injury, if any, to plaintiff, then your verdict must be for the plaintiff, provided you believe and find from the evidence that before and at the time of said collision plaintiff was in the exercise of ordinary care and caution for her own safety.”

The court refused both these instructions as asked, and modified both of them by adding to. the end of each some additional matter. To the end of Instruction No. 1 the court added the following: “And providéd further» you find and believe from the evidence that plaintiff’s son, in driving said automobile was acting for plaintiff and under her direction and control', that then before you find your verdict in her favor, you further find and believe from the evidence that her said son, in driving said automobile over and upon the public streets at the places mentioned in the evidence, was exercising the highest degree of care which a very careful person would exercise under the same or similar circumstances.”

There was also a slight interlienation in this Instruction No. 1, made by the court, but no point is made thereon in the assignment of error, and this interlineation thereby becomes immaterial.

To Instruction No. 2, supra, the court added the following: “And provided further, you find and believe from the evidence that plaintiff’s son, in driving said automobile was acting for plaintiff and under her direction and control, that then before you find your verdict in her favor, you further find and believe from the evidence that her said son, in driving said automobile over and upon the public streets at the places mentioned in the evidence, was exercising the highest degree of care which a very careful person would exercise under the same or similar circumstances.”

The court gave the instruction as thus" modified.

Upon a trial before the jury the verdict and judgment were for defendant and the plaintiff has appealed.

There are but three assignments of error. From the brief we quote thus:

“Now comes the appellant and assigns the following errors:

“(1) The trial court erred in instructing the jury that the plaintiff could not recover unless the driver of said machine, at the time of the injury, exercised the highest degree of care.

“(2) The court erred in permitting the witness B. Pi Williams to give his opinion and conclusion that the machine could not help but get hit when he saw the driver turn across the street.

“ (3) The court erred, in permitting the witness Lehmann to testify what the duty of the driver of the machine was at the time of and before the injury, and to testify what things the said driver was required to do in order to make himself a careful chauffeur.”

Further details of facts, as the same may become necessary, are left to the opinion.

I. Leaving the worst for the last, we shall take the assignments of error in inverse order. The respondent has printed, in an additional abstract of the record, the evidence in full. The third assigunaent of error goes to the following state of facts in the record. Whilst the witness Lehmann was on the witness stand the following occurred:

“Q. You were in the courtroom, I believe, when young Threadgill testified? A. Sir?
“Q. You have been a chauffeur, haven’t you? A. Yes, sir.
“Q. I will ask you if, from the way he testified that he approached that track, if that is according to the way a careful chauffeur would approach a track under those conditions?
“Mr. Peery: I object to that.
“The Court: Objection sustained.
“Mr. McChesney: I will ask you, Mr. Lehmann, as a chauffeur, when you drive an automobile, how would you approach a crossing there, assuming that there was a car there, for the sake of argument?
“Mr. Hamilton: I object to the question; he has not qualified as an expert on that.
“The Court: He said he was a chauffeur.
“Mr. Hamilton: I object to it for the reason that it is not competent unless he takes into consideration all the facts connected with this accident. The question now is simply how would a careful chauffeur cross the track in front of this carl
“To which ruling of the court the plaintiff, by counsel, then and there duly excepted.
Mr. McOhesney: Read the question to him, Mr. Buck.
The Court: You may state what a careful chauffeur would do in making the crossing there. A. Like this case ?
“Q. Under these circumstances, under the same circumstances? A. A chauffeur that had to drive from the west side of Union going south and wants to turn to East Yernon has to strike three corners, and before his turning, has to throw out his hand, slowing, up his car, and make sure that his way is clear, not leave it to anybody else.
“Mr. McOhesney: That is, assuming, M.r. Lehmann, as he testified, that there was another car there.
“Q. As he testified? A. Yes, sir.
“Mr. McOhesney: That is all.
“Mr. Peery: That is all.”

Young Threadgill was the driver of his mother’s car at the time of the collision, and had testified in the case in the presence of the witness Lehmann.

It will be noted that the question propounded by Mr. McOhesney, and to which the objection was lodged and the exception saved, was abandoned. The court indicated by his ruling that Lehmann had qualified as an expert and therefore could express an opinion. The evidence shows that he had so qualified. After the objection and ruling the counsel, McOhesney, asked that the question be read, but it was not.

It appears that the court then took a hand in the game. The court framed a question for the witness to answer as an expert, and to this question and the answer thereto, there was neither objection nor exception by counsel from the plaintiff. There is no reviewable error here.

II. Mr. B. P. Williams, a business man of the city of St. Louis, was an eye witness to the accident, and was placed on the stand by the defendant. In the examination in chief the witness had said there were least two automobiles coming down the street going to the south. He said there was a touring car, which was followed immediately by a Ford car with the top up. Plaintiff was in this Ford car and was driven by her seventeen-year-old son. The witness testified that this Ford car turned suddenly toward the east across the track upon which was coming the north-bound street car of the defendant. He had fixed the distance of the coming street car at not more than eight to ten feet from the Ford car, when the turn across the track was made, and had said that the Ford car had been following immediately behind a touring car. This was in his evidence in chief. When counsel for the plaintiff took the witness for cross-examination, he was (on such cross-examination) asked the following questions and gave the following answers:

“Q. The first time your attention was attracted to it was when you heard the crash? A. The first time my attention was attracted to the automobile?
“Q. Yes. A. No, sir; it was not. I was looking right at the automobile when it happened, and I saw they could not help but get hit when they turned across there.
“Mr. Peery: I object to that testimony and ask
that it be stricken out.
“The Court: Motion overruled.
“To which action of the court the plaintiff then and there excepted.”

The foregoing is the objection and exception referred to in the point made. The evidence given by the plaintiff herself.was to the effect that as they turned to enter Vernon Avenue going east she discovered the north-bound street car “coming at a rapid rate of speed, and at a distance of about seven or eight feet from the machine.” The difference between her testimony and that of the witness Williams lies in the fact she says their machine was following a south-bound street car, and Williams says it was following a touring automobile, and that he saw no south-hound street car at the time. They agree on the distance of about eight feet. It was evident from the detailed facts that a collision was imminent, and there was, to say the least, no harm done by the expression, of the witness, when he says: “I saw they could not help but get hit when they turned across.”

But in addition (and fatal to the point) no reason is assigned for the objection or for the motion to strike out. Both the objection and the motion are in the most general terms. No grounds are assigned in either the objection or the motion. The point cannot be thus saved for appellate review. [Springfield v. Owen, 262 Mo. l. c. 104; Williams v. Williams, 259 Mo. l. c. 250.]

III. The debatable assignment of error is assignment number one, supra. In this ease the automobile was owned by plaintiff and was being driven by her seventeen-year-old son. Plaintiff’s husband was a doctor, and had treated a child for Mr. and Mrs. Cross. After the operation the doctor sug ° gested that the son would drive them home in the car, rather than have them take a street car. The doctor told his wife that she might go along and watch the child, as it had not come from under the anesthetic as yet. The evidence shows that the car was owned by the plaintiff, and not by the doctor. The son, the driver, was therefore driving plaintiff’s car, and the negligence of her driver is imputable to her.

As stated the court modified the instructions for plaintiff by adding thereto a clause which placed upon her driver the duty of exercising the highest degree of care in the running of the machine. This the appellant assigns as error. Respondent urges that such degree of care is required by the state statute, and that the court committed no error in so wording the instructions. Paragraph 9 of Section 12, Laws 1911, page 330, read:

“Any persons owning, operating or controlling an automobile running on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel. Any owner, operator or person in control of an automobile, failing, to use such degree of care, shall be liable to damages, to a person or property injured by failure of the owner, operator or persons in control of an automobile, to use such degree of care, and in case of .the death of the injured party, then damages for such injury or death may be recovered, as now provided or may hereafter be provided by law, unless the injury or death is caused by the negligence of the injured or deceased person, contributing thereto.”

It would seem that this statute fixes upon the driver of an automobile the duty to exercise “the highest degree of care, that a very careful person would use, under like or similar circumstances.” The Springfield Court of Appeals in England v. Railroad Co., 180 S. W. l. c. 34, has so ruled.

On the other hand the Kansas City Court of Appeals in an opinion by Brand, J., in case of Advance Transfer Co. v. Railroad, 195 S. W. l. c. 568, has taken the opposite view. In that case it is said: “It seems to us that this statute cannot but mean that the rule of ‘the highest degree of care’ is to be applied only to persons operating automobiles in looking out for the safety of others, and that it does not change the common-law rule that a driver is only required to exercise ‘ordinary care’ for his own safety. Plainly the statute was enacted to pro'tect persons on the highways from injury by automobiles, death-dealing machines having-great potential power for danger. [See the case of Joseph I. Hopkins v. Sweeney Automobile School Co., 196 S. W. 772, decided by this court, but not yet officially reported.] We are aware of the fact that the Springfield Court of Appeals in the case of England v. Southwestern Missouri Railroad Co., 180 S. W. l. c. 34, has construed this statute contrary to the view we have taken of it, but in that case the court had already held that, applying the common-law rule of ‘reasonable care,’ plaintiff was guilty of contributory negligence, and by way of argument, only, the court held that, if plaintiff was guilty of contributory negligence under the common-law rule, he must be under the statutory rule, and cites the statute under discussion. ’ ’

To like effect is Hopkins v. Sweeney Automobile School Co., 196 S. W. l. c. 774, where the Transfer Company case, supra, is cited and approved, as also the Hopkins case is approved in the Transfer Company case. Both cases were handed down at the same time, and hence the cross references.

What these two cases really hold is, that as to the driver of an automobile who is injured, or whose machine is injured, or damaged, only the rule of ordinary care is applicable. They say that the statute requiring the highest degree of care is one applicable to persons traveling on or over the streets or highways. That as to such persons traveling on or over such highways he owes the highest degree of care, but as to himself, his property, or those with him, only ordinary care is required.

We cannot take this view of this statute. We think that it contemplates a rule of conduct for automobile drivers upon “public roads, streets, avenues, alleys, highways or places much used for travel.” That rule of conduct is to use “the highest degree of care.”

Let us see just to what the rule established by the Kansas City Court of Appeals leads. A is driving an automobile, exercising only ordinary care, and he collides with an automobile driven by B, and kills B; then according to the rule of that court A is liable, and properly so. But the rule does not stop here. It goes further and says that if in the collision A (who is only exercising ordinary care) chanced to be injured, instead of B, then such fact would not preclude A from recovering from B. In other words, the failure of A to exercise the highest degree of care would not be such contributory negligence as Avould preclude his recovery. In other words, B who did the injury would be guilty of negligence because he was not exercising the highest degree of care, but A would not be guilty of contributory negligence if he failed to exercise the highest degree of care, but did exercise ordinary care. To get .at their rule differently. Both A and B, drivers of automobiles, meet and have a collision. Both are exercising only ordinary care. B chances to be lucky and A unlucky. A is injured. Under the rule of the Kansas City Court of Appeals A can recover, because B is negligent in not using the highest degree of care, and A is not negligent because (for his own protection) he has used ordinary care. We concede that the common-law rule only requires a person to exercise ordinary care for his own protection, and when such care is used there is no contributory negligence. But as Nortoni, J., in Nicholas v. Kelley, 159 Mo. App. l. c. 24, said: “This statute prescribes the obligation of high care as to all persons owning, operating or controlling an automobile running on public roads, streets, avenues, alleys, highways or places much used for travel. ” -

The person driving a motor vehicle has a rule of conduct prescribed for him by this statute. That rule of conduct is the use of the “highest degree of care.” A failure to reach the standard prescribed by the law is negligence, and if the negligence contributed to his injury he cannot recover.

doing now to the instant case. The street railway company was entitled under this law to have the plaintiff and her driver use the highest degree of care, to the end that its property and its servants might not be injured by a failure to use such degree of care. Within the meaning of the law the street railway was a person in the street, and entitled to the same protection under the statute as a person or another automobile driver would have been. Had plaintiff’s car, whilst being run in violation of this statute (that is being run without the exercise of the highest degree of care), struck and injured the street car, there can be no doubt under paragraph 9 of sec. 12, act of 1911, plaintiff would be liable in damages. The statute makes liability for damage to person or property. Not only so, but had the conductor or motorman on the street car been injured, then there would be no doubt of their right of action against plaintiff. This but demonstrates the fact that as to the street car and its occupants the plaintiff and her driver, in approaching them owed them the duty of exercising the highest degree of care, and the failure to exercise such degree of care would be negligence. It would be a singular doctrine to hold that as to others, the drivers must use the highest degree of care, but that they cannot be held to be guilty of contributory negligence if they fail to exercise such care.

As said before, this statute prescribes a rule of conduct. If a violation of the statute occasions injury to others, the person violating it is liable in damages. If on the other hand the violation of the statute occasions injury to the person violating it, such person cannot recover for injury to himself, which injury was contributed to by his own wrongful violation of law. His failure to use the highest degree of care is contributory negligence. The amendments to the instructions were proper. They but presented the idea of contributory negligence. They fixed the standard of duty as fixed by the law. The rule of the Kansas City Court of Appeals, in the cases cited is wrong.

The foregoing covers all the assignments of error made by appellants. Neither assignment being good, it follows that the judgment should be affirmed.

It is so ordered.

Blair, P. J., and Bond, J., concur; Woodson, J., absent.


text:
    THE STATE ex rel. G. A. McBRIDE, Appellant, v. PAUL BYRD et al.
    Division One,
    July 9, 1919.
    1. DRAINAGE DISTRICT: Suit for Taxes Pending an Appeal. The pendency of an appeal from the judgment of the county court organizing a drainage district does not make premature a suit for taxes subsequently instituted. The appeal does not affect the benefits assessed, which are the basis of the tax suit. Under the statute (Sec. 5592, R. S. 1909) on an appeal to the circuit court only two questions can be considered, namely, compensation for property appropriated and damages to property prejudicially affected by the improvement.
    2. -: Estimates of Costs. If the record shows that the viewers reported separate estimates of the costs of location and construction, and apportioned the same to each tract in proportion to benefits or damages received, and that the county court, with the parties before it, found as a fact that such required estimates and apportionment had been made, there is no basis for a claim on an appeal from the circuit court that the estimates were not made.
    Appeal from Livingston Circuit Court. — Hon. Fred Lamb, Judge.
    Reversed and remanded (with directions).

      W. T. Rutherford, Forrest M. Gill and Paul D. Kitt for appellant.
    (1) An estimate of the cost, location and construction . of the improvement was made by the viewers, as is shown by the report of the viewers set out in the abstraet of the record. (2) The incorporation of Drainage District No. 13 is preliminary and is not a final decree adjudicating anyone’s rights from which an appeal lies; it simply organizes an entity with which to further proceed to effect reclamation. No landowner is injured by the incorporation. In re Drainage District; Buschling v. Ackley, 270 Mo. 174. (3) The judgment assessing the benefits to respondents’ land became final when the report of the viewers was confirmed by the county court. The only exceptions to the report of the viewers are on the claim for compensation for damages and not to benefits. And, on appeal, the only question presented is that of damages. Sec. 5592, R. S. 1909; Drainage District v. Wabash Railroad, 216 Mo. 709.

      Frank Sheets and S. L. Sheets for respondents.
    (1) The statute requires an estimate of the cost of location and construction of the improvement; and an apportionment of the same to each tract. No estimate was ever made so far as any record thereof can be found, and the county court acquired no jurisdiction of the proceedings. Hamilton on Special Assessments, sec. 524; Morgan Creek Drainage Commrs. v. Hawley, 240 111. 465. (2) The judgment assessing benefits should be suspended until the value of the land taken for the ditch, and the damages to the remainder are ascertained. Tarkio Drainage Dist. v. Richardson, 237 Mo. 75; Morgan Creek Drainage Dist. v. Hawley, 255 111. 34.
   BLAIR, P. J.

This and the case of State ex rel. v. Sheetz, ante page 429, are companion cases. Most of the questions raised in this case are decided in that. The judgment in this case was for defendant.

I. Defendant in this case, in 1910, had appealed to the circuit court from the judgment of the county court. That appeal was not shown to have been pending when this suit was tried in 1915. It is contended this suit for taxes was premature because of the appeal aild Ümt this justifies the judgment of the trial court in this case. Under the statute then in force (Sec. 5592, E. S. 1909)- defendant’s appeal, even if pending, could, take to the circuit court but two questions: (1) compensation for property appropriated and (2) damages for “property prejudicially affected by the improvement.” It was expressly provided that the progress of the work should neither be stayed nor prevented and that the “subsequent proceedings in the circuit court shall affect only the rights and interest of the appellant in property located in such drainage district.” The appeal did not affect the benefits assessed or their collection. [Drainage Dist. v. Railroad, 216 Mo. l. c. 715 et seq.] The case cited by defendant (Tarkio Drainage Dist. v. Richardson, 237 Mo. l. c. 75) was decided on different facts and under a wholly different statute (Secs. 8251 et seq., E. S. 1899; Secs. 5496. et seq., E. S. 1909) usually termed the “Circuit Court Act.”

II. Section 5584, Eevised Statutes 1909, provided that the viewers “shall make separate estimates of the cost of location and construction, an'd apportion the same to each tract in proportion to the benefits or damages that may result to each.” It is said this was not done. The trouble with this contention is that the record shows the viewers reported the required estimates and that the county court, with the parties before it, found as a fact that they had done so. There is no basis for this complaint.

III. For the reasons given in the preceding paragraphs and in the companion case referred to, this judgment is reversed and the cause remanded with directions to enter judgment for plaintiff in accordance with the prayer of the petition.

Graves, J., concurs; Bond, J., concurs, in the result; Woodson, J., absent.