author: WILLIAMS, J.

text:
    THE STATE ex rel. MONETT SPECIAL ROAD DISTRICT v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    June 14, 1919.
    1. TAXATION: Uniformity: Road District in Two Counties. A tax of fifty cents upon each one-hundred-dollar valuation levied by a road district partly in one county and partly in another, does not violate the constitutional rule that all taxes “shall be. uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” It is not to be presumed that inequality will arise because of the fact that property in one portion of the district is to be assessed by the assessor of one county and that in another portion by the assessor of the other county.
    2. -:-: Under Act of 1917: Not Germane to Issue. Whether a portion of a road district lying in one county may at some future time have to pay a larger road tax than the portion lying in the other county, owing to the fact that hy the Act of 1917 county courts may levy a road tax of not more than twenty nor less than ten cents on the hundred-dollars valuation, is a question not germane to the question of the validity of a uniform tax levied upon all taxable property in the district.
    Mandamus.
    Alternative writ made peremptory.

      T. D. Steele and Geo. J. Grayston for appellant.
    (1) The tax levied to pay the interest and discharge the principal of the bonds in question was levied by the Special Road District and operate alike upon all persons and property within the territory of the power which levied the tax and is, therefore, not lacking in uniformity. State ex rel. Moberly Special Road District v. Burton, 266 Mo. 711. Section 3, Article 10, of the Constitution, is designed only to. prevent favoritism or discrimination in the levying of taxes, and the tax in question is not open to such objection. Elting v. Hickman et ah, 172 Mo. 257; St. Louis v. Bowler, 94 Mo. 634; 37 Cyc. 737. (2) In the absence of evidence to the contrary, the court will presume that assessors comply with the law by assessing property at its actual value. State *ex rel. Gottlieb v. Telegraph Company, 165 Mo. 502.

      Frank W. McAllister, Attorney-General, Shrader P. Howell and Thomas J. Cole,. Assistant Attorneys-General, for respondent.
    . ‘(1) These bonds, issued in pursuance of the provisions of an Act of March 18, 1911, Laws 1911, pp. 371 and 372, by a road district extended under the provisions of Sec. 10610, R. S. 1909, are invalid and void for the reason that such act and section result in the violation of Section 3 of Article 10 of the Constitution. Sec. 10481, R. S. 1909, as amended, Laws 1913, 667; Laws 1917, sec. 36, p. 457; Raymore Special Road District v. Huber, 212 Mo. 551; State ex rel. v. Gordon, 197 Mo. 55; Carthage Road District v. Ross, 270 Mo. 82. (2) Where the ratio of assessment differs in two counties in which parts of a road district are located, the tax for road purposes levied against the property in such district would result in a violation of Sec. 3, Art. 10, of the Constitution. Knowlton v. Supervisors of Rock County, 9 Wis. 421; Woodbridge v. Detroit, 8 Mich. 301; State v. Karr, 64 Neb. 514; State v. Savage, 65 Neb. 744; Cooley’s Constitutional Limitations (7 Ed.), pp. 722-727; 37 Cyc. 742. (3) Whether or not a legislative enactment impinges upon a constitutional provision is to be determined not alone by what has been done thereunder, but by what may under its authority be done. Sterrett v. Young, 82 Pac. 946; Board of Education v. Aldredge, 13 Okla. 208; Stuart v. Palmer, 74 N. Y. 183; Batch v. Des Moines, 63 Iowa, 722.
   WILLIAMS, J.

This is an original proceeding which seeks by mandamus to compel the State Auditor to register road bonds, totaling $50,000, issued by the relator.

There is no dispute as to the facts, neither is there any controversy as to the form of the pleadings. The sole question presented is a constitutional one and only such facts as will throw light upon this one issue need be here stated.

The relator district,,as originally organized in 1906, under Article 10, Chapter 151, Revised Statutes 1909, included only the municipal township of Monett, a tract of land four miles square, and all situated in Barry County; the north line of the district being a portion of the north boundary line of Barry County. In 1913, under proceedings had in conformity with the requirements of Section 10610, Revised Statutes 1909, the limits were extended northward into Lawrence County to include an adjoining tract, three miles east-and-west and four miles north-and-south.

On .April 18,1916, a special election was held in said district under the provisions of the Laws of 1911, p. 371, to authorize the bond issue now in question. All statutory provisions relating to the subject were complied with and the bond issue was authorized by the necessary vote. The proper authorities of the road district ordered the issuance of the bonds and “for the purpose of providing a sufficient fund for the payment of the principal and interest of said bonds there was levied upon all the taxable property within” said special road district “a direct annual tax of fifty cents upon each $100 valuation thereof, twenty-five, cents of which levy was made for the purpose of paying the interest upon said bonds, and twenty-five cents of which levy was made for the payment of the principal of said bonds.” Other necessary steps were taken to provide for the collection of said tax.

The admitted facts, disclosed by the pleadings, show that both the amount of bonded indebtedness authorized and the tax levied to pay for same were within the limits provided by the Act of 1911, and no question is raised on this feature of the case.

The war conditions then prevailing prevented the district from marketing said bonds, but later, on February 5, 1919, and after the authorities of said' district had made new orders in the matter, the bonds were issued and offered to the State Auditor for registration.

That portion of respondent’s return raising the constitutional question is as follows:

“Because Section 10610, of Article 6, Chapter 102, Revised Statutes 1909, under the terms of which the boundary lines of said relator district as originally organized were extended so as- to include land' lying and situate in an adjoining county, and the provisions of an act of the Forty-sixth General Assembly of the State of Missouri, entitled, ‘an act authorizing special road districts to issue bonds and providing for the payment thereof, with an emergency clause,’ approved March 18, 1911, as amended by an act of tfie Forty-ninth General Assembly, approved April 9, 1917, and under which the said bonds in the sum of fifty thousand dollars were voted, both and each of which said acts are in violation of Section 3 of Article 10 of the Constitution of the State of Missouri, in that, the aforesaid sections and acts, and Section 36 of an act of the Forty-ninth General Assembly of Missouri, approved April 9, 1917, and found at page 457 of the Session Laws of 1917, authorize and result in the levying of a different rate of tax and the collection of a different amount of taxes for road purposes upon that part of such special road district lying and situate in Barry County from that rate levied and the amount of taxes collected for road purposes on that part of said special road district lying and situate in Lawrence County;
“Because that portion of the special district lying and situate in the two respective counties named in relator’s petition and alternative writ would be assessed by different assessing officers of different counties and at a different ratio or basis of valuation, which would necessarily result in the violation of the uniformity provision of Section 3 of Article 10 of the Constitution of the State of Missouri.”

I. Section 3 of Article 10 of the Constitution is as follows: “Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of authority levying the tax, and all taxes shall be-levied and collected by general laws,” (Italics ours).

Respondent contends that the italicized portion of the above section has been violated by this bond issue. We are unable to agree with this contention. The facts disclosed upon the present record show that the tax levied by the proper officers of the special road district to pay the principal and interest of these bonds complied in every respect with the above constitutional provision. An annual tax of fifty cents upon each one hundred dollars’ valuation was levied upon all the taxable property within said district.

Neither does it appear from this record that any inequality would he brought about by reason of the fact that property in one portion of the district would be assessed by the Assessor of Barry County while the property in the remaining portion of the district would be assessed by the Assessor of Lawrence County. The law that provides for the assessment of property for taxation in Barry County is the same law which provides for like assessment in Lawrence County. The presumption is that both assessors will follow the law and do their duty. [State ex rel. v. Western Union Tel. Co., 165 Mo. 502, l. c. 516.]

Since the above mentioned tax is the only tax that is in any manner involved in this proceeding it would appear that a determination of that question should dispose of the case. The respondent, however, while not seriously contending that the rule above announced is not correct, yet by his argument appears to earnestly •insist that the invalidity of this bond issue springs from a. source entirely different from that discussed above. The question to which reference is here made will be discussed in the following’ paragraph.

II. Here the respondent contends (as we understand him) that said bond issue is invalid because •Section 10610, Revised Statutes 1909 (the statute which authorized the special road district to extend its limits to include ^an<^ two counties), is unconstitutional, in that it violates or results in violating said Section 3, of Article 10 of the Constitution.

It is not contended that Section 10610, supra, standing alone, violates the above mentioned constitutional provision (and we can well see how this is so when the section in no manner deals with any phase of taxation; but respondent contends that when said Section 10610, and the Act of 1911 (Laws 1911, pp. 371 and 372, being the law authorizing special road districts to issue bonds such as we have in the present suit), and the Act of 1917 (Laws 1917, p. 457), are all read together they present a situation which upon the happening of certain other contingencies might result in a violation of the above mentioned constitutional provision.

The Act of 1917, to which reference is made, provides that the county courts in counties having a population of less than two hundred and fifty thousand shall levy as a road tax upon all property made taxable by law a tax of not more than twenty cents nor less than ten cents on the hundred-dollar valuation. It is argued that under this act that portion of the land of this road district lying in Barry County might be required to pay a road tax of only ten cents while the land of the district lying in Lawrence County might have to pay a road tax of twenty cents.

The above question is no doubt an interesting one, but as we see it, it lies entirely without the scope of the present suit. The question might properly be discussed in a case involving the validity of a tax levied under the Act of 1917, but the point is not germane to the question of the validity of a uniform tax levied upon all the taxable property of the district, under the Act of 1911 (Laws 1911, p. 371), as was the tax involved in the present case, and the point therefore cannot in any manner affect the validity of the present bond issue.

III. State ex rel. v. Gordon, 197 Mo. 55, and Ray-more Special Road District v. Huber, 212 Mo. 551, cited and relied upon by respondent, are not in point upon the issues presented in this present suit. Those eases were dealing with the question of whether the statutes concerning special road districts could be applied in forming special road districts in counties which had adopted township organization.

Section 3 of Article 10 of the Constitution is not mentioned in either case. What is said in those cases about taxes was said arguendo in an effort to disclose the legislative intent concerning the application of the statute authorizing the organization of special road districts. The question of the validity of a tax to support a bond issue under the Laws of 1911, p. 371, was not discussed, because tbe Act of 1911 was not' in existence when the above cases were written.

In the Raymore Special Road District case, written by Graves, J., who also wrote the case of State ex rel. v. Gordon, we note the following language:

“We are not prepared to say that a valid law may not be passed and made applicable to counties under both systems of our road law discussed in State ex rel. v. Gordon, Supra, nor are we prepared to say that the first thirteen sections of this law is not such an act. However, that is not the real issue here, and we reserve our opinion thereon until such opinion is required by a concrete case. ” [Id. 1. c.. 558.] And again: “It may be that a special road district for the improvement of a public road by special assessment could be created under the act, which district would have the power to collect and expend such revenue, independent of township organization laws, but we leave that question to a casé wherein it is a live issue.” (Italics ours) [Id. 1. c. 559.]

It would therefore appear that the only question analagous to any issue underlying the validity of the tax involved in the present case was expressly reserved and not determined in those cases'. Those cases do not discuss the proposition discussed in paragraph one of this opinion, which .question is determinative of this case.

For the reasons expressed in paragraph one above we are of the opinion that the bond issue is a valid olie and that they are entitled to registration.

It therefore follows that the alternative writ should be made peremptory. It is so ordered.

Walker, Faris, Blair and Graves, JJ., concur; Bond, G. J., concurs in result; Woodson, J., not sitting.


source: Caselaw Access Project

author: BLAIR, J. GRAVES, J. WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. MILES BULGER, Petitioner, v. ALLEN C. SOUTHERN, Judge of Circuit Court of Jackson County at Kansas City, and BERT W. WELCH.
    In Banc,
    June 14, 1919.
    1. ELECTION CONTESTS: Recount By Commissioners in Cities. Sections 6143 and 5922, Revised Statutes 1909, when read together, as they must be, provide for a recount of ballots in an election contest, by the election commissioners in Kansas City, St. Louis or “any other city hereafter having registration of voters.” ' ■ „
    2. -: Time for Institution: After Notice: Jurisdiction. Since the statute provides that an election contest “shall he determined at the first term” of the court authorized to hear it “that shall be held fifteen days after the official counting of the votes, and service of notice of contest ” given the opposite party within twenty days after the votes shall have been officially counted, any division of the Circuit Court of Jackson County whose regular term begins fifteen days after said notice is served or is due has jurisdiction .of the contested election case; that is, the contestant has twenty days in which to serve his notice, and a circuit court whose regular term is to begin fifteen days after such service has jurisdiction of the case.
    3. COMPUTATION OP TIME: Exclusion of Sunday. Where the statute requires that “the time within which an act is to be done shall he computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded,” the last day if it he Sunday is not to he included in computing the time, but is - to he excluded from the computation, and the time named ends on the following Monday, and not on the preceding'Saturday.
    4. ELECTION CONTEST: Notice: Constructive Service Before Expiration of Time for Personal Service. The statute provided that no election of a county officer shall he contested “unless notice of such contest be given the opposite party within twenty days after the votes shall have been officially counted” by delivering a copy to such opposite party, or leaving it at his usual place of abode with some member of his family over the age of fifteen years, or “if neither such contestee nor his family can be found in the county,” by posting “a copy in the office of the clerk of the court wherein the contest is to be heard.” The twentieth day aff;er the official count was completed was Sunday, and neither the contestee nor a member of his family being found in the county the notice was posted in the office of the clerk on Saturday, the 19th day. Held, that the contestee was entitled to personal service up to and including Monday, the 21st day, and a return made on Saturday the 19th day was premature and illegal, and constituted no basis for constructive service, and there was no service of the notice, personal or constructive.

      Held, by WOODSON, J., dissenting, with whom BOND, C. J., concurs, that the posting of the notice in the clerk’s office was not premature, nor was the sheriff required to retain the writ until Monday the 21st day in order that he might make further effort to personally serve contestee or some member of his family, but the constructive service by posting on the 19th day was sufficient. — s
    5. -: -: -: Waiver of Service: Appearance. An election contest is a special and statutory proceeding, not according to the course of the common law, and notice according to the statute is essential to jurisdiction; and where the statute specifically provides that “no election of any county officer shall be contested unless notice of such contest shall be given the opposite party within twenty days after the votes shall have been officially counted,” an appearance solely to challenge the jurisdiction for lack of service of notice gives no jurisdiction of the person.
    6. -: -: —-: -: Waiver: Appearance for Other Purposes. Held, by BLAIR, J., with whom PARIS and WILLIAMS, JJ., concur, that, while in an ordinary action an appearance coupling other grounds with an attack on the court’s jurisdiction of the person ordinarily constitutes waiver of objection to service, the rule does not apply, in all respects, to an election contest; and that where there was no sufficient service of notice of the contest, an appearance by the contestee by a motion in which he directly charged a lack of service of the notice, and coupled with that charge (a) a challenge of the legal sufficiency of the notice, (b) an attack on the service because not made in time for the regular term of a division of the court in which it is claimed the case should have been brought and (c) a charge that the court had no power to order a recount of the ballots, did not amount to a waiver of a lack of service, but the motion as a whole showing an attack on the jurisdiction for want of service, it will not by these other things be expanded into a waiver. Held, also, that the intent of the movent is of consequence upon the question of waiver, and the meaning of words, used in a motion filed as a special appearance, will not be selected which will transform it into a general appearance.
    7. -: -: Waiver: Jurisdiction. Held, hy GRAVES, J., with whom WALKER, J., concurs, that where there is no service of notice in an election contest, the court does not obtain jurisdiction of the subject-matter (the contest), and hence the question of waiver of service, or waiver of jurisdiction of the person of contestee by his appearance, is not in the case.
    Prohibition.
    Preliminary rule made absolute.

      H. S. Julian, T. A. J. Mastín and A. L. Cooper for appellant.
    (1) Election contest proceedings are everywhere regarded and treated as special statutory proceedings, and are not civil suits, and the statute in reference to contests must be strictly construed. There is no implication in its favor and resort cannot be had to the Code of Civil Procedure. State ex rel. v. Spencer, 166 Mo. 279; State ex rel. v. Hough, 193 Mo. 643; Castello v. Court, 28 Mo. 277; Bowen v. Hixon, 45 Mo. 349. (2) Where a right depends upon giving a notice in a given time, and the notice is not given in the required time, it is jurisdictional, and unless strictly complied with, the court is without authority to proceed. Bowen v. Hixon, 45 Mo. 344; 15 Cyc. 400; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Mathewson v. Railroad, 219 Mo. 542 to 549; Chandler v. Railroad, 251 Mo. 592, 600. (3) The notice of contest constitutes both a petition and a writ. Castello v. Court, 28 Mo. 277; State ex rel. v. Klein, 116 Mo. 259. (4) If it was a writ, the sheriff had twenty days in which to serve it personally upon the contestee, or by leaving a copy at his usual place of abode with some member of his family over fifteen years of age, and had no right to resort to constructive service by posting it up in the clerk’s office, until the twenty days had expired.. And, if he resorted to constructive service at two o’clock p. m. November 30,1918, it was premature and the constructive service did not bring the qontestee into court. Lumber Company v. McCabe, 220 Mo. 167; Van Natta y. Real Estate Company, 221 Mo. 377; Tooker v. Leake, 146 Mo. 419; Cummings v. Brown, 181 Mo. 711. (5) Sec. 5928, R. S. 1909, is mandatory that this contest, if brought at all, should have been brought at Independence, where the regular term of court opened December 2, 1918. State ex rel. v. Evans, 184 Mo. 632; Montgomery v. Dormer, 181 Mo. 5; Adcock v. Lecompt, 66 Mo. 40. (6) There is no authority given in Article 6 of Chapter 42, or anywhere else in the statutes, to the court to make an order upon the board of election commissioners. (7) Sections 5939, 5940, 5941, 5942 and 5943 show that the General Assembly has acceded to the demands of the Constitution in placing safeguards around the secrecy of the ballot, so far as the Clerk of the county court is concerned, but it has been derelict in that regard so far as the board of election commissioners is concerned. State ex rel. v. Dillon, 87 Mo. 487; State ex rel. v. Spencer, 164 Mo. 23; Ex parte Arnold, 128 Md. 256; State ex rel. v. Prances, 88 Mo. 557; State ex rel. v. Board of 'St. Louis Public Schools, 112 Mo. 213.

      Watson, Gage & Watson for respondents.
    (1) Under the various statutes there can be no question about the power and duty of the court in an election contest to command the election commissioners to open the ballot boxes. (2) The official count was completed on the 11th day of November. The contestant had twenty days from that date within which to serve his notice of contest. The notice was filed on the 27th day of November, and posted November 30th. The first day of the term at Independence began on the 2d day of December. There were not fifteen days intervening. But the notice was filed and served within twenty days. The notice of contest was, therefore, filed less than fifteen days before the December Term, and hence could not be returnable at that term. Ramsey v. Huck, 267 Mo. 339; State ex rel. v Hough, 193 Mo. 647. The language of the statute is specific that it shall be tried at the first .term held fifteen days after the official count and service of notice of contest. The service of notice of contest was had within the twenty days, and this contest is brought to the first term of the Circuit Court of Jackson County held fifteen days after the filing of the notice of contest. (3) The court will take judicial notice of the fací that December 1st came on Sunday, and under Sec. 8057, R. S. 1909, Sunday was excluded, and the last day for service was the day previous, or Saturday, November 30th, the day upon which this notice was posted.. State ex rel. v. McElhinney, 199 Mo. 80. The only question, then is, whether the sheriff, having held this notice from November 27th up to and including two o’clock, p. m. of the last day upon which service could be had, made a premature return by posting up this notice in the office of the clerk. The officer certifies that he had made diligent search for and failed to find Miles Bulger in Jackson County, from the 27th day of November up to and including two o’clock, p. m. November 30th, the last day for service, and that he also made diligent search for and failed to find any member of his family over the age of fifteen years, in Jackson County, from Npvember 27th up to and including November 30th, at two o’clock, p. m. The remarkable contention is made in this case that the sheriff should have held the writ the full twenty days in order to get personal service on Bulger before posting the same in the office of the clerk of the circuit court. In other words, that he must give full twenty days’ time in which to serve Bulger personally before he could resort to constructive service: Such a contention absolutely nullifies this statute. It is clear from all the authorities, “that'when an act is to be done within a given number of days from the date or day of the date or act done, the day of the date is excluded. Otherwise, an act to be done in one day must be done on the same day, and as there is no fraction of a day, such a stipulation must create an obligátion to do it instanter.” Inhabitants v. Inhabitants, 8 Cush. 374. It is a well settled rule in this State, and wherever the common-law rule prevails, that fractions of a day are not counted in the service of process or pleadings, or other legal documents. Kimm v. Osgood, 19 Mo. 60; Shaffer v. Detie, 191 Mo. 387; Ball v. Mander, 19 How. Pr. (N. Y.) 468; In re Puglisi, 230 Fed. 189; Portland Bank v. Maine Bank, 11 Mass. 205; Freeman on Judgments, sec. 370; Bruce v. Vogel, 38 Mo. 104; United States v. Lumber Co., 142 Fed. 432; National Bank v. Burkhardt, 100 U. S. 689. (4) A failure to serve the notice of an election contest for county office within the time prescribed by statute, and defect in the manner of service are waived by a general appearance of the contestee. It has been decided, that in a writ of prohibition the sufficiency of the petition cannot be challenged. State ex rel. v. Cave, 272 Mo. 653; State ex rel. v. Klein, 116 Mo: 268; Newcomb v. Railroad Co.-, 182 Mo. 707; Peter v. Railroad, 59 Mo. 408; Tower v. Moore, 52 Mo. 118; Pry v. Railroad, 73 Mo. 127; Orear v. Clough, 52 Mo. 55; Hill v. Barton, 194 Mo. App. 325.
   BLAIR, J.

Relator seeks to prohibit the Circuit Court of Jackson County from proceeding further in an election contest. November 5, 1918,. relator and respondent Welch were opposing candidates for Presiding Judge of the County Court of Jackson County. The official count was completed and, as announced on November 11th, showed the election of relator by several thousand votes. November 27th Welch filed in the circuit clerk’s office at Kansas. City a notice of contest, which was delivered to the sheriff for service on the same day. 'The sheriff made return that he had “made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, up to and including two o’clock p. m. of November 30, 1918, and made diligent- search for and failed to find any member of the family of said Miles Bulger, over the age of fifteen years, at his usual place of abode in Jackson County, Missouri, up to and including two o’clock p. m. of November 30, 1918,” and on the same day, at the same hour, the sheriff posted a copy of the notice in the office of the circuit clerk at Kansas City. On December 20,-1918, Welch filed an application for an order to open the -ballot boxes. About December 30, 1918, relator filed a motion which recited that the, appearance “is for the purpose of this . motion only.” The first four grounds directly' charged a lack of service of the notice of contest. The fifth charged that the court was without jurisdiction to hear and determine the contest “for the réason that the pretended1 notice of contest given by said contestant is based upon alleged objections to the qualifications of voters, and the names of none of said voters are stated in ‘said notice, and the alleged objections are not specified.” The sixth ground was that the court had no jurisdiction, because the term at Kansas City was not the first term held in Jackson County fifteen days after the official count; that the contest should have been filed at Independence. The other grounds were that the notice was (7) not legally sufficient, and (8) had not been so filed that any contest was pending. This motion was withdrawn, and another filed January 6, 1919. The first four and the -sixth grounds were the same as in the first motion. The fifth ground was as follows: “Said court is without jurisdiction to make said order for the reason that it is not empowered so to do in Article 6 of Chapter 43, Revised Statutes 1909.” The court overruled this motion and a like motion to quash, for like reasons, a notice to take deposition. On January 10, 1919, the court sustained the application of Welsh. Relator, on the same day, applied here, and a preliminary rule in prohibition was issued.

I. It is argued there is no act regulating the course of the election commissioners in making a recount -and, therefore1, no such recount, can be had in Kansas City. Section 6143, Revised Statutes 1909, contains the fol-following: “Provided, that if any contest of the election of any officer voted for at such election . . . shall he pending . . .

the ballots shall not be destroyed until such contest . . . be finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened and counted, and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest.” This section applies to Kansas City. Section 5922, Revised Statutes 1909, provides that “the powers and duties herein given to and imposed upon the clerks of the several counties shall be éxercised in reference to St. Louis and Kansas City, and to any other city hereafter having registration of voters, by the board of election commissioners of such city.” This section includes all cities within the class at the time and all which might thereafter come into that class. It is applicable to contested elections. [State ex rel. v. Klein, 116 Mo. l. c. 265, et seq.] It is true the article relating to contests has been said to be a code unto itself so far as concerns procedure in an election contest, but this does not argue that the usual rules of construction do not apply in determining whether particular provisions of other articles of the same chapter are, in effect, parts

of the article relating to contests.

II. A term of court opened at Independence on December 2, 1918. It is contended the contest should have been filed at Independence and that the Kansas City division had no jurisdiction. Section 5928, Revised Statutes 1909, reads as follows: “Every court ' v authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading; and the contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice of contest, unless the same shall be continued by consent, or for good cause shown.”

Section 5924, Revised Statutes 1909, provides that no election of county officers shall be contested unless notice of such contest shall be given the opposite party within ■ twenty days after the votes shall have been officially counted.

Prior to 1879 (Sec. 57, p. 67, G-. S. 1865) the clause “and service of notice of contest” did not appear in the statute. The cases of Castello v. Court, 28 Mo. 259, and Adcock v. Lecompt, 66 Mo. l. c. 42, 43, upon which relator relies, were decided under the old statute. Under that statute the contest was triable at the first term held “fifteen days after the official counting of the votes.” ' It seems to have been held that this provision applied whether or not there would be left twenty days for. service. Then came the amendment inserting the clause quoted. Than those of the amendment, words could not well be more apt to change the former rule. The triability of the contest at a particular term of court was made to depend upon two things, i. e. that the term began fifteen days (1) after the official count, and (2) after the service of notice pf contest. The question in Montgomery v. Dormer, 181 Mo. l. c. 14, and State ex rel. v. Evans, 184 Mo. l. c. 640, 641, was whether an adjourned term filled the statutory description of a “term” of court. Those decisions are not applicable to this case.

III. There was no service of the notice of contest. The statute (Sec. 5924, R. S. 1909) provides that “no election of any . . . county . . . officers shall be contested unless notice of such contest be given ° to the opposite party within twenty days after the votes shall have been officially counted.” The notice must be served “by delivering a copy thereof to the contestee, or by leaving such copy at his usual place of abode, with some member of his family over the age of fifteen years; or if neither such contestee nor his family can be found in the county, and service cannot be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof in. the office of the clerk of the court wherein the contest is to be heard.” The official count was completed and the result announced November 11, 1918. The statute (Sec. 8057, R. S. 1909) prescribes the applicable rule for computing time as follows: “Fourth, the time within which an act is to be done shall be computed by excluding the first day_ and including the last, - if the last day be Sunday it shall be excluded.” December 1, 1918, fell-on Sunday. Had it been any other day of the week it would have been the last day for service under the statute. Being Sunday the statute requires it to be excluded. It is at this point a difference of opinion arises. Respondent contends that when it is excluded, Saturday, November 30th, became the last day for service. Respondent thus seeks to exclude Sunday, December 1st, from the time for service. This loses sight of the language and purpose of the statute. What the statute lays down is a rule for computing the time within which an act is to be done. The words “Sunday shall be excluded” means it shall be excluded from the computation, not from the time within which the act shall be done. Excluding Sunday, December 1, 1918, from the computation leaves Monday, December 2nd, as the last day upon which service could have been made. The construction contended for by respondent was given -this statute by this court at the January term, 1870. [Patrick v. Faulke, 45 Mo. 312.] At the March term, 1870 (Bank v. Williams, 46 Mo. l. c. 19), as is pointed out in Jordan v. Railroad, 92 Mo. App. l. c. 85, the Patrick case was.“virtually overruled.” In Keys v. Keys, 217 Mo. l. c. 65, in an opinion by Graves, J., this view of the Court of Appeals is approved and abundant other authorities cited. In Walker v. Sundermeyer, 175 S. W. l. c. 187, in an opinion by Roy, C., Keys v. Keys, was approved and followed. There are-other decisions in point announcing the same rule. The statute is not fairly susceptible of any other construction. State ex rel. v. McElhinney, 199 Mo. l. c. 80, is relied upon by respondent. It is to be observed that the court was not deciding the point now in issue. The Statement there made of the rule did not affect the decision in that case. The fact that Sunday was excluded answered thé argument the court was examining, and no occasion arose to discriminate between the rule now contended for by respondent and that announced in the cases already cited.

Applying the settled rule, the last day for personal service in the contest proceeding- was Monday, December 2, 1918. It is admitted the notice was posted at 2 p. m. Saturday, November 30th. No effort to secure personal service was made after that time. If thé officer could, two and a half days before the expiration of the time therefor, abandon all effort to secure personal service, the requirement therefor would tend to become merely perfunctory. The service of notice of contest is like the service of petition and summons. The return was premature and illegal (Lumber Co. v. McCabe, 220 Mo. l. c. 167,. et seq., and cases cited) and constituted no basis for constructive service. There was no service, -personal or constructive.

Waiver IV. It is urged relator appeared in the contest proceeding and thereby waived the lack of service. It is Uled that an election contest is a special and statutory proceeding, not according to the course of the common law. From an early date it was held in such cases that notice in accordance with the statute was essential to jurisdiction. [Castello v. Court, 28 Mo. l. c. 275, 276; In re Wilson v. Lucas, 43 Mo. l. c. 293, 294; Bowen v. Hixon, 45 Mo. l. c. 344, 345; Ramsey v. Huck, 267 Mo. l. c. 338, 339, and cases cited; State ex rel. v. Robinson, 270 Mo. l. c. 222, 223, and authorities cited.] The statute (Section 5924, R. S. 1909) specifically provides that “no election of . . . any county officer shall he contested unless notice of such contest shall he given the opposite party within twenty days after the votes shall have been officially counted-.” This court has repeatedly held this provision is peremptory, as shown by the eases cited above. In State ex rel. Newell v. Cave, 272 Mo. 653, it was held the contestee had waived'lack of service of notice by serving and filing and amending his counter, notice and moving to strike out parts of the notice, all before he challenged the jurisdiction for want of service, and that this waiver conferred jurisdiction. The dissenting opinion points out that this is a new rule in this State as applied to election contests for officers falling within Section 5924, Revised Statutes 1909. In an ordinary action an appearance solely to challenge jurisdiction for lack of service gives no jurisdiction of the person. [Huff v. Shephard, 58 Mo. l. c. 245, 246.] Whether, in such an action, an appearance is general or special is one of intent (Woodard v. Milling Co., 142 N. C. l. c. 102) and the intent is to be determined from the facts at the time. [Fisher v. Crowley, 57 W. Va. l. c. 323.] .

The first motion filed by the contestee (relator here) was not based solely upon the ground that a copy of the notice of contest had not been delivered or posted in proper time. The fifth and seventh grounds challenged the legal sufficiency of the notice. The sixth ground charged, in effect, that the term of court at Kansas City .was one into which no notice could bring the contestee, and the eight ground was that no notice had been so filed that any contest was pending. The amended motion' contained a ground to the effect that the court had no jurisdiction under the article on contested elections.

In an ordinary action combining other grounds, in the first instance, with an attack on the jurisdiction of the person, ordinarily constitutes a waiver of objections to service. [State ex rel. v. Grimm, 239 Mo. l. c. 171, et seq., and cases cited; Iddle v. Hamler Co., 132 La. l. c. 478; City Natl. Bank v. Walker, 130 La. l. c. 811; Crowell v. Galloway, 3 Neb. 215; Fitzgerald v. Fitzgerald, 137 U. S. 98; Crawford v. Foster, 84 Fed. l. c. 941; Kaw Life Assn. v. Lemke, 40 Kan. l. c. 145, and cases cited; Elliott’s Appellate Procedure, par. 678.]

Y. Is the same rule applicable, in all respects, to an election contest? Waiving any argument which depends upon the principle announced in State ex rel. v. Robinson, supra, and the cases preceding it, the writer nevertheless thinks the question put should answered in the negative. In the first place, there is a distinction between the Newell case and this. There the jurisdiction was never questioned until long after contestee had filed his counter notice and amended counter notice and had invoked affirmative action of the court as well as moved to strike out parts of the notice on non-jurisdictional grounds.

In this case the statute provides for a summary disposition of the proceeding and explicitly excludes formal pleadings.

(a) The first four grounds clearly constituted no waiver, (b) The attack upon the legal sufficiency of the notice waived nothing unless we are to overrule a contrary holding acquiesced in by the Legislature for sixty years. Judge Lackland discussed the meaning of the statute in an identical case-, on the same' question of waiver, in his return in Gastello v. dou,rt, 28 Mo. 1. c. 265. That construction of the statute was approved in the opinion. The comment he made on the effect of counter notice need not be considered since Section 5921 is not, in that respect, like the section then under consideration. With respect to the effect of the motion in that case, Judge Lackland said it was “the object of the statute to give the notice a double operation, that , is, to bring the party into court and to set forth and advise the court of the grounds of contest; that the notice required by the statute seemed designed to stand in lieu of and perform the functions of a writ and petition in an ordinary suit; and it would seem to be just as unreasonable to say that the contestee could not appear in court and object to the notice upon the ground that it is insufficient in law as to say that a defendant could not appear in court and demur to a petition in an ordinary suit.” By this the learned judge, and, by adopting it, this "court, evidently meant (as the context shows) that a contestee in a -contest for a county office was entitled to he served within statutory time with a legally sufficient notice and that service of one not legally sufficient was not service at all; that a challenge to the jurisdiction over the person could, under the statute, he made for want of any timely service and for want of timely service of a legally valid notice; that to assail the legal sufficiency of the paper served was to assail the service itself. He concluded that such an attack waived nothing, and this court approved'that construction of the statute, (c) The sixth ground, is construed hy counsel to he an attack on the service because no notice was served in time for the Independence term. It is open to this construction and the intent of the movent is of consequence upon the question of waiver. [Harkness v. Hyde, 98 U. S. l. c. 479; Woodard v. Milling Co., supra.] This ground of the motion, in view of the rule, ought not to be held to constitute waiver. The same may be said of the eighth ground, (d) The charge that the court had no power to make the order under the contest statute might have meant more things than one. The motion as a whole shows an attack on the jurisdiction for want of service. If there was no service it was true as charged, that the court had no jurisdiction- to do anything. It does not accord with the great weight of authority to select a meaning for words used in a motion, filed as a special appearance, which will transform it into a general appearance, especially in case the words are fairly open to a construction ^harmonizing with the explicit declaration that a special appearance is intended.

VI. The preliminary rule is made absolute.

Faris and Williams, JJ., concur; Graves, J., concurs in separate opinion; Walker, J., concurs in paragraphs 1, 2 and 3, and in the opinion of Graves, J.; Woodson, J.; dissents in an opinion in which Bond, G. J., concurs.

GRAVES, J.

(concurring.) — I concur fully in paragraphs one, two and three of the opinion, and in tire result. Paragraph three properly holds that there was no service of the notice. This ruling takes from the case all questions of waiver of service. Absent a valid service of notice, the court acquired no jurisdiction of the contest, 1. e. the subject-matter, and this cannot be waived. In contests provided for by Section 5924, Revised Statutes 1909,'a properly-served notice is a prerequisite to jurisdiction, both as to subject-matter and person. The cohtestee cannot waive jurisdiction over the subject-matter. The very wording of the statute withholds jurisdiction of the court over the contest, until this notice is properly given. It says “no election of any county officer shall he contested unless notice of such contest shall he given the opposite party within hventy days after the votes shall have heen officially counted” a clear condition precedent to a contest at all.

We have contested election proceedings wherein the circuit courts are given jurisdiction, which have not this prerequisite of jurisdiction required by Section 5924, supra. The contests involved under Section 5957 and 5965, Revised Statutes 1909, are examples. In these cases the contestant files his petition in court as in an ordinary action, and this act invokes the jurisdiction of the court over the subject-matter. These statutes provide for bringing in the contestee by summons, as in ordinary actions. So that in these cases the court acquires the jurisdiction of the subject-matter (the contest) by the filing of the petition. In such case the usual rule of waiver as to jurisdiction over the person applies.

This, however, has no application to these summary proceedings under Section 5924, supra, where as a prerequisite of any kind of jurisdiction there must be a properly served notice. Such has been the universal ruling of this court from Castello v. St. Louis Circuit Court, 28 Mo. 259, up to and including State ex rel. v. Robinson, 270 Mo. 212. The case of State ex rel. v. Cave, 272 Mo. 653, is an innovation. However, our individual views are fully expressed in.State ex rel. v. Cave, 272 Mo. l. c. 663 et seq., and in State ex rel. v. Robinson, snpra, and we can add but little to what is there said.

So, whilst I think my learned brother has written well on the question of waiver, I do not think it is in this ease at all. For these reasons, I concur as above stated.

Walker, J., concurs in these views.

WOODSON, J.

(dissenting.) — This is an original proceeding instituted in this courP against the respondent, seeking to prohibit him from proceeding with the trial of the case of Bert W. Welch v. Miles Bulger, wherein the former is contesting the latter’s election as-Presiding Judge of the County Court of Jackson County. A temporary writ was issued by this court, and in due time the respondent made return thereto.

The facts of the- case are undisputed, and are stated by counsel for respondent in substantially the following language:

Miles Bulger, and Bert W. Welch, respondent, were opposing candidates at the November (1918) election for the office of Presiding Judge of the County Court of Jackson County, Missouri. Said election was held on the fifth day of November, 1918, and on the 11th day of that month the Board of Election Commissioners of Kansas City, Missouri, completed the official count and made the announcement, of the votes cast at the election, and upon the face of the returns said Miles Bulger ■ was elected and a certificate of election was duly issued to him. On November 27th, the respondent, Bert W. Welch, filed in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, a notice of election contest and two copies thereof, as required by the rules of the court, and caused the same to be delivered on November 27th, to O. H. Gentry, Jr., Sheriff of Jackson County, Missouri, for service upon the said Miles Bulger. Thereafter, the said sheriff retained said papers until the 30th day of November, 1918, at the hour of two o’clock p. m., when he posted the same in the office of the Clerk of the Circuit Court of Jackson County, Missouri, where suit was pending. The contest was returnable to the January term of said court which began January 13,1919.

The return shows that the sheriff made diligent search for and failed to find the said Miles Bulger in Jackson County, Missouri, and he made diligent search for and failed to find any member of his family over the age of fifteen years at his usual place of abode in said county, or in said county; and thereupon served the within notice on November 30, 1918, at two o’clock p. m. by posting up a copy thereof in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City.

On or about December 20, 1918, contestant filed an application in said circuit court held at Kansas City, asking for an order opening the ballot boxes as provided by statute. On or about January 3, 1913, contestee appeared in said court and filed his motion to quash this application. Thereafter said Bulger filed an amended motion to quash contestant’s application to open the ballot boxes.

The grounds upon which the motion to quash was , based were: First, that the said court was without jurisdiction to hear and determine said contest, for the reason that Welch did not give Bulger notice of the alleged contest within twenty days after the official count of the votes cast at said election; second, that said notice of contest was not served fifteen days before the first term of the circuit court held fifteen days after the official count of said votes; third,'that said contest was not instituted at Independence, where the term of court.began December 2,1918; fourth, that posting notice in the office of the Clerk of the Circuit Court of Jackson County, Missouri, at Kansas City, at two o ’clock p. m. November 30, 1918, was constructive service, and that the writ was prematurely returned; that the sheriff should have held it for the full time directed by law — that is to say, twenty days.

On December 17, 1918, contestant served a notice upon the contestee that he would make an application to the circuit court, in the Assignment Division thereof, over which the respondent Southern presided* for an order upon the Board of Election Commissioners to open the ballot boxes.

On December 30, 1918, the petitioner appeared' specially and filed a motion to quash said order, which motion was, by leave of the.court, on January 6, 1912, withdrawn and another motion filed, setting up that said court was without jurisdiction to hear and determine said contest, because the contestant did not give the contestee twenty days’ notice, as required by law.

Second. That said court was without jurisdiction to hear and determine said contest for the reason that no notice of said contest was legally served upon contestee by said contestant or upon any member of his family, at his usual place of abode, over the age of fifteen years, or with anyone else.

Third. That the pretended constructive service by posting up a copy of the notice in the clerk’s office at two o’clock p. m., November 30, 1918, was-prematurely done by the sheriff, and that he was without authority to post said notice, and that said pretended constructive service was null and void and did not bring the contestee into court.

Fourth. That said court was without jurisdiction to make the order requested by contestant upon the Board of Election Commissioners, because no power was given under Article 6 of Chapter 43 of the Revised Statutes of Missouri of 1909, to make such an order.

Fifth. That the said court was without jurisdiction to hear and determine said contest because the first term of the Jackson County Circuit Court held after said'election, was begun at Independence, Missouri, on December 2, 1918; and that if contestant desired to institute a contest, he should have filed it at Independence, Missouri, instead of at Kansas City.

Contestant also served notice upon contestee that he would take depositions in said cause, and the contestee filed a motion in said court to quash said notice, restating the same grounds, except that applying to the Board of Election Commissioners.

On the 8th day of January, 1919, the court overruled contestee’s motion to quash the order to open the ballot boxes, and on January 10th he overruled contestee’s motion to quash the notice to take depositions; and on January 10th,, respondent issued his order to the Board of Election Commissioners to open the ballot boxes, which the petitioner challenges on the ground that there is no authority given by the statutes of Missouri to issue- such order to said board.

I. Counsel for relator insist that the circuit court acquired no jurisdiction over the subject-matter or the person of the relator for the reason that he was not served with the notice of the contest within twenty days after the completion of the count and announcement of the official votes cast at the election.

The record shows that the official count of the votes cast was completed and announced on November 11, 1918, and that on the 27th day of that month the notice was placed in the hands of the sheriff for service, which he held until two o’clock p. m., Saturday, November 30, 1918, when he posted up a copy of the same in the office of the Clerk of the,Circuit Court of Jackson County, as provided for by statute.

The statute under which this contest was instituted is Section 5924, Revised Statutes 1909, and insofar as is here material, reads as i follows:

“The several circuit courts shall have jurisdiction in cases of contested elections for county and municipal offices, . . . but no election of any . . . county, municipal or township officers shall be contested • unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted. . . . The notice shall specify the grounds upon which the contestant intends.to rely, .and if objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein, and the notice shall be served fifteen days before the term of court at which the election shall be contested, by delivering a copy thereof to the contestee, . . . or if neither such contestee nor his family can be found in the county, and service cannot therefore be had as aforesaid, it shall be a sufficient service of such notice for the contestant to post up a copy thereof in the office of the clerk of the court where the contest is to be heard.”

The official count of the votes cast was completed November 11, 1918, and, therefore, under the provisions of the statute just quoted, the notice of contest ordinarily could have been served personally upon the contestee on or before December 1, 1918, for the reason the twenty days mentioned in the statute would have expired on that day; but under the facts of this case, December 1st, 1918, fell upon Sunday, and under Section 8057, Revised Statutes 1909, that day must he excluded, for the reason that it provides: “Fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded.” So according to this statute, had the contestee been personally served on Saturday, November 30, 1918, it would have been in due time; but the return of the plaintiff shows that he was not personally served upon that May, or upon any other, but was constructively served on Saturday, November 30,1918, at two o’clock p. m. by posting a copy of the notice in the office of the Clerk of the ' Circuit Court of Jackson County. The sufficiency of this service is challenged by the relator for the reason that the sheriff made his return prematurely, that is, at two o’clock, p. m., November 30, 1918, when he should have held it until the last minute of the last hour of that day, and should have exhausted all of that time in search for the contestee. We are cited to the following cases by counsel: Lumber Co. v. McCabe, 220 Mo. l. c. 167; Van Natta v. Real Estate Co., 221 Mo. l. c. 377; Tooker v. Leake, 146 Mo. 419; Cummings v. Brown, 181 Mo. 711.

These authorities do not support the proposition contended for by counsel for relator; nor is their challenge of the sufficiency of the service well grounded, for the reason that the law does not recognize fractions of a day in the service of process. [Kimm v. Osgood, 19 Mo. l. c. 60; Shaffer v. Detie, 191 Mo. l. c. 287; Columbia Turnpike Road v. Haywood, 10 Wend. 422; In re Puglisi, 230 Fed. 189; Cosgriff v. Board of Election Commissioners, 91 Pac. 99; Portland Bank v. Maine Bank, 11 Mass. l. c. 205; 2 Freeman on Judgments, Section 370; Bruce v. Vogel, 38 Mo. l. c. 104; United States v. Lumber Co., 142 Fed. 432; National Bank v. Burkhardt, 100 U. S. 689; Follet v. Hall, 16 Ohio, 111; Tilton v. Sterling Coal & Coke Co., 28 Utah, 173; Smith v. Commissioners, 10 Colo. 28; Long’s Appeal, 23 Pa. 297; Linhart v. State, 33 Tex. Cr. R. 507; Fhbien v. Grabow, 134 Mo. App. l. c. 196; Central Coal & Coke Co. v. Graham, 196 S. W. l. c. 943; Ladany v. Assad, 91 Conn. 316; Rice v. Beavers & Co., 71 Mo. 659; Hamilton v. State, 101 Tenn. 417; Hattiesburg Grocery Co. v. Tompkins, 71 So. 866; Lang v. Phillips, 27 Ala. l. c. 314; Dierssen v. Ins. Co., 204 Ill. App. 240; Warren v. Slade, 23 Mich. 1; Wood on Limitations (2 Ed.), p. 119; Wiggin v. Peters, 1 Metc. 129.]

According to the law as announced in the foregoing authorities, the posting up of the notice of contest in the clerk’s office at two o’clock p. m., November 30, 1918, which was also within the twenty days, was sufficient service of the notice; and this point should therefore be decided against the relator.

II. It is next insisted by counsel for relator that the contest proceedings were not instituted in the proper court, nor at the proper time of the court at which they should have been instituted. This insistence is based upon the provisions of Section 5928, Revised Statutes 1909. The parts here material are as follows:

“Every court authorized to determine contested elections, shall hear , and determine the same in a summary manner, without any formal pleading, and the contest shall be determined at the. first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice or contest, unless the same shall be continued by consent or for good cause shown. ’ ’

This court will take judicial notice of the fact, that the first term of the Circuit Court of Jackson County, which, under the law, could have been held after the official count of the votes cast at the November election of 1918, which was November the 5th of that year, would be at Independence on December 2, 1918. Upon these facts, it is contended by counsel that since the official count was completed and announced on November the 11th, 1918, and the first term of the Circuit Court of Jackson County thereafter began on December 2nd, following, the contest proceedings should have been brought in that court, and to that term thereof, for the reason that said term began fifteen days after November 11th, the day the official count of the votes cast was completed. In other words, their position is that the proceedings should have been brought to the December term, 1918, of the Circuit Court of Jackson County at Independence, notwithstanding the fact that at that time the twenty days within which the notice of contest was, by Section 5924, Revised Statutes 1909, required to be served upon the contestee would not then have expired; but in order to obviate this conflict between the two statutes, it is insisted that they should be so construed as to require the twenty days mentioned in Section 5924 and the fifteen days mentioned in Section 5928 to run concurrently, or that the fifteen days should curtail the twenty days to such a number as to leave only fifteen days time after the count of the votes in which to institute the contest proceedings at the first term of the court thereafter to be held December 2, 1918. To illustrate: As explained in paragraph one of this opinion, the twenty days, on account of the last day thereof being Sunday, expired on November 30, 1918, which left only one day existing between that day and December 2nd, the first day of the December term; consequently, it is contended, that since the proceedings had to be instituted at the December term, 1918, the contestant had only from November 11th to November 17th in which to give the notice of the contest, which is only six days, instead of twenty as required by said Section 5924.

In passing, according to this construction, I desire to ask what disposition is made of December 1, 1918? I am unable to see where it has been counted under either theory of counsel for relator, but, fearing I have not correctly stated counsel’s position regarding the proposition just mentioned, I will state it in their own language; it is as follows:

‘ ‘ So that the rule is iron-clad, that the contest must be brought at the first term of the circuit court held in the county, and the notice must be served fifteen days before that term begins; and if that cuts in on the twenty days’ notice, the contestant has got to act accordingly and shorten his time. In this case he had only from November 11th to November 17th in which to give the notice.”

This construction placed upon Section 5928 not only conflicts with Section 5924 as to giving the twenty days notice of the contest, but violates the letter and spirit Of Section 5928 itself, the very statute they are construing.

That section provides that the court shall hear and determine the .proceeding in a summary manner and to determine the same at the first term of such court that shall, be held fifteen days after the official counting of the votes, and service of the notice of 'the contest. (Italics ours).

Counsel have ignored the italicized words in placing their construction upon the statute. That should not be done, for it is a well known canon of statutory construction, that all the parts of a statute and all of its words should be given a meaning when it is possible to so do without violating the clear intention of the Legislature, as gathered from the entire act; that rule also requires the court when construing statutes in pari materia to place that construction upon each which will harmonize all of their provisions with each other, and thereby give full force and effect to both. [Cape Girardeau-Jackson Interurban Railway Co. v. Light & Development Co., 277 Mo. 579, and cases cited.]

By thus reading and construing the two statutes together, it seems clear that what the Legislature meant was, that the 'court in trying the cause shall determine the same at the first term of the court which should be held fifteen days after the expiration of the twenty days allowed for serving the notice of contest, which, of course, under the provisions of Section 5924, would have to begin the next day after the official count had been completed, which in the instant case was November 11th, as before stated. So if this is what the Legislature meant, the proceedings could only have been instituted at a term of the circuit court which had begun not earlier than fifteen days after November 30th, which was the date upon which the twenty days’ notice expired, as held in paragraph one of this opinion. This construction is also in keeping with the language of said Section 5928, for the reason that it provides tha’t the contest shallbe determined at the first term of the ‘‘ court that shall be held fifteen days after the official counting of the votes, and service of notice of contest.” Not simply after the expiration of fifteen days after the official count is completed, but at the first term after the expiration of both the fifteen and twenty days have elapsed. Had the Legislature’used the words “and after the expiration of the twenty days notice required to be given of the contest” instead of those previously italicized, there could have been no shadow of doubt as to the meaning of the Legislature, for in that case the statute would then have read as follows: The court shall hear and determine the contest “in a summary manner, without formal pleading; and the contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes, and after the expiration of the twenty days’ notice required to he given of the contest.” These italicized words have precisely the same meaning as thus used as those previously italicized have as used in the statute.

This construction of those statutes also utilizes the 1st day of December, 1918, beforementioned, as one of the days in computing the time in which the suit shall have been instituted, while under the construction given to them by counsel for relator that day is entirely ignored.

If I am correct, and this is the meaning of the statutes, then the proceedings could not have been instituted and determined at the December term, 1918, of the circuit court, sitting at Independence, but should have been brought to the first term of the Circuit Court of Jackson County, which was held, after the expiration of said fifteen and twenty days, the one attached to the other, or in other words, brought to the first term of that court which should have been held not earlier than thirty-five days after the completion of the official count of the votes cast, which was, as previously stated, on November 11, 1918; and since the record shows that the proceedings were brought to the January term, 1919, of the Circuit Court of Jackson County, sitting at Kansas City, and that it was the first term after the expiration of said thirty-five days, we hold that the proceedings were, properly brought at that time and in that court.

Before passing to the next proposition presented for determination, it may not be amiss to notice f»he contrast between the strictness with which counsel for respondent deal with the twenty days’ notice of the contest required to be given by Section 5924, Revised' Statutes 1909, discussed in paragraph one of this opinion, and the looseness with which they are computed in construing’ Section 5928, in this paragraph of the opinion. In the former it is insisted that the contestee was entitled to the entire twenty days’ notice, “the last minute of the last hour,” while here they repudiate their former position, and say that only six days of the twenty must be counted.

We confess that the language of this statute does not clearly designate to what particular term of court the contest proceedings shall be brought, or the exact time when they shall be instituted, but when we consider the fact that the statutes are dealing with county, municipal, school and township elections, and that they are held at different times of the year, and the further fact that no one can tell the exact date when the official count of the votes cast will be completed or announced, it readily occurs to me why the Legislature could not definitely designate the court or the term thereof when the proceedings should be instituted, especially when the various terms of the various circuit courts of the various counties are two or three times more numerous than are counties in the State.

The further fact that the Legislature was evidently trying to fix a reasonable time in which the parties might prepare their notices of contests, which also serve as the pleadings in the case, prepare their cases for trial, and compel a speedy trial thereof on account of the public interest being involved, also caused the Legislature to use rather flexible language in trying to cover all such cases, instead of fixed terms which might not be held for months after the vote had been cast, and counted.

In the light of all the facts the Legislature was dealing with, if we carefully read the language of these, statutes, there will be but little diffculty encountered, in ascertaining when and where all such contests should be brought, as previously shown.

Recount of Ballots. Recount of Ballots. III. Counsel for relator finally insist that there is no law in this State authorizing the circuit court to order the Board of Election Commissioners to open the ballot boxes, count the votes or compare them with the list of votes. This' insistence is untenable:

Section 3 of Article- 8 of the Constitution provides that: “In all cases of contested elections, the ballots cast may be counted, compared with the list of voters and examined under such safeguard and regulation as may be prescribed by law.”

Counsel for the relator contend that the Legislature has complied with this mandate of the Constitution by enacting Sections 5939, 5940,. 5941, 5942 and 5943, Revised Statutes 1909, and thereby authorizing the Clerk of the County Court, under the order of the circuit court, to examine, -count and compare the ballots cast under the safeguards prescribed therein, but deny, that the Legislature has authorized the board of election commissioners to so act, under such an order of the circuit court. Counsel have overlooked certain statutes bearing up'on this question. Section 6091, Revised Statutes 1909, as amended by Section 1, page 244, Laws 1911, creates a board of election commissioners for cities of the State having one hundred thousand inhabitants or over, prescribes their qualifications and manner of their appointment, and provides for the registration of the votes and elections to be held in such cities. This section requires the commissioners to secure and open an office and preserve the property thereof; also upon the appointment of the commissioners the county clerk of the county in which any such city is situated, or other custodians of said property, shall, upon demand, turn over to the board of election commissioners all registry books, poll books, tally sheets and ballot boxes heretofore used and all other books, forms, blanks, stationery and property of every description in his hands- in any way relating to registration or elections, or the holding of elections, within said city. It also provides that all duties now vested in and required of the hoard of election commissioners in said cities shall rest in and be required of the board of election commissioners herein provided for.

Prior statutes had created similar boárds for such cities, and conferred the same powers and imposed the same duties upon them that the Act of 1911 has imposed upon the present board of election commissioners, and that is why the last clause of said Section 1 of the Act of 1911 provided that the powers conferred and duties imposed upon such boards should rest in and be required of the boards mentioned in the Act of 1911.

Section 5922, Revised Statutes 1909, found in Chapter 43, Article .5, headed “Ballots, Voting and Returns,” provides that the powers and duties given and imposed by that article upon the clerks of county courts of the several counties of the State shall be exercised in reference to the City of St. Louis and Kansas City, and to any other city hereafter having a registration of votes, by the board of election commissioners of such city.

Section 5939, Revised Statutes 1909, in express terms provides that the circuit court shall have power to order the Clerk of the County Court in which the contest is held, commanding him to open, count and compare the ballots with the list of voters, and examine the ballots in his office which were cast at the election in question, etc. .

And Section 6143, Revised Statutes 1909, provides that the board of election commissioners shall proclaim the results of election, and that they shall be the custodian of the ballot boxes, ballots, books, etc., and that they shall keep said boxes locked up -securely for a period of' twelve months, and at the end of said twelve months after said election, said ballots may be destroyed; provided, that if any election contest or prosecution of election officer shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest shall be finally determined, “and in all cases of contested elections, the parties contesting the same shall have the right to have such ballots opened and counted and to have all errors of the judges in counting or refusing to count such ballots corrected by the court at the time of such contest.”

Under the foregoing- statutory provisions there can be no question but that the Board of Election Commissioners of Kansas City possess the same power and have the same duties imposed upon them'regarding elections and election contests that the various clerks of the county courts throughout the State have; and when we read Section 5939, which imposes upon the clerks of the county courts the duty to open and compare the ballots, in connection with Section 5922, which imposes the same duty upon the Board of Election Commissioners of Kansas City, and with Section 6143, which expressly gives the contestant the right to have the ballot boxes opened and the ballots counted, compared, etc., there can be no reasonable doubt but that the Legislature intended that the Board of Election Commissioners of Kansas City should, in an election contest, open, count and compare the ballots under the order of the circuit court in the same manner and under safeguards that the Clerk of the County Court might do in any other county of the State, under like conditions.

Entertaining these views, we are of the opinion that our preliminary writ of prohibition was improvidently issued. I therefore dissent.

Bond, C. J., concurs herein.


author: BOND, C. J. PER CURIAM:

text:
    EDWARD J. SCOTT and JOHN R. SCOTT, Appellants, v. GEORGE E. W. LUEHRMANN and EDWARD H. LUEHRMANN.
    In Banc,
    June 14, 1919.
    1. ACTION: Right to Recover: Dismissal. Where plaintiffs’ petition states a cause of action and its allegations are sustained by the evidence they are entitled to recover, and’ it is error to dismiss their bill, unless some one of the affirmative defenses pleaded is sustained by a preponderance of the evidence and is sufficient in law to prevent a recovery.

      2. -: -: Scope of Pleadings. It is elementary that courts of equity are powerless to administer redress beyond the legitimate scope of the pleadings.
    3. CORPORATION: Suit by Plaintiffs on Assigned Judgment: Contribution: Scope of Pleadings. After plaintiffs had obtained judgment for debt against a corporation, and to enforce it they had brought suit against its stockholders to whom had been issued full paid-up stock for which they had not paid, a number of stockholders entered into an agreement to put a sum of money in- the hands of a trust company as trustee, to be held for the purpose of defending the suit and discharging any judgments that might be rendered, and a committee of the body thus formed purchased plaintiffs’ judgment and took an assignment of it in blank after the present suit, stating nulla Iona returns on two executions against the company and asking for judgment against two stockholders, was brought, the purpose of the agreement being to enforce contribution from other stockholders who had refused to join in the arrangement. No substitution of parties was made after the assignment of the judgment, and the cause proceeded in the name of the original plaintiffs. Held, that the assignment, under the circumstances, did not preclude the original plaintiffs from prosecuting the suit to enforce the judgment; and, whatever may be the equities between plaintiffs ‘and defendants who have acquired a beneficial ownership of the judgment, to compel an accounting and contribution among themselves, as no such matters were presented by the pleadings, they must necessarily be excluded by the court in its decree.
    4.. -: Unpaid Stock: Creditor’s Knowledge. No creditor of a corporation who knows when he becomes such that its shares of stock have been issued to its subscribers without payment of money or money’s worth can enforce his claim, upon default of payment by the corporation, against such, stockholders to the extent of their indebtedness for such stock; but where the testimoney -as to the creditor’s knowledge is conflicting and does not ' .preponderate against him, the rule is no defense to his claim.
    5. -: -: Imputed Knowledge: Purchase of Stock After Credit Given. The purchase of the corporation’s bonds carrying a bonus of common stock, made after the company had made the contract out of which the purchaser’s claim arises, does not impute to such purchaser knowledge that the stock previously issued to subscribers had not been paid for in money or money’s worth, nor does it tend to negative his reliance upon the presumption that the corporation had bee'n legally organized and its stock paid for at the time of his prior contract with it.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.

      Reversed and remanded.

      Kinealy & Kinealy for appellants.
    ' (1) A creditor who has obtained a judgment against a corporation and a return of execution nulla bona may then proceed against the holders of unpaid stock. 10 Cyc. 725, 731; Shickle v. Watts, 94 Mo. 419; Meyer v. Min. & Mill. Co., 192 Mo. 162. (2) The judgment against the corporation is conclusive on the stockholder. Nichols v. Stevens, 123 Mo. 96; Johnson v. StebbinsThompson Realty Co., 177 Mo. 581. (3) If the holder of the stock be an assignee thereof and took it with notice that it had been paid up in property, then he takes it subject to the right of a creditor to have the value of the property investigated, and if such value be not equal to the amount of the capital stock, then the holder of the stock is liable to the creditor. Meyer v. Min. & Mill. Co., 192 Mo. 162. (4) To defend, by Avay of estoppel, against the claim of the creditor, it must be shown that he had actual knowledge that the stock was not fully paid. Rogers v. Stag Min. Co., 185 Mo. App. 659; Construction Co. v. Western, 153 Mo. App. 185. (5) The. mere fact that the creditor may also be a stockholder does not prevent him from pursuing his remedy as a creditor. Schaefer v. Brewing Co., 4 Mo. App. 115; Guerney v. Moore, 131 Mo. 650; Meyer v. Min. & Mill. Co., 192 Mo. 162. (6) Under our procedure the courts- can only consider controversies as concrete cases made by -the pleadings. State ex rel. v. Muench, 217 Mo. 124; Moormeister v. Hannibal, 180 Mo. App. 717. (7) If the stockholder, Avhen sued by a creditor, admits that he is such stockholder, he can file a cross-bill bringing in all other stockholders for contribution. Hatch v. Dana, 101 U. S. 205; Young v. Farwell, 139 111. 326; Martin v. Southern Salena Land Co., 94 Ya. 28; Brundage v. Monumental Co., 12 Ore. 322. (8) A defendant’s defenses and positions in a' case must be consistent. Dickey v. Porter, 203 Mo. 1; Bell v. Campbell, 123 Mo. 2; BroAvn v. Emmerson, 155 Mo. App. 459; Shelby v. Sheppard, 145 Mo. App. 470. (9) It was defendants’ duty in their answer to set forth their contention as to the construction or legal effect of Underwriting Agreement, which they did. Reilly v. Cullen, 159 Mo. 322; Anderson v. Gaines, 156 Mo. 664; Estes v. Shoe Co., 155 Mo. 577. (10) Defendants are bound by the allegations of their answer. Oglesby v. Mo. Pac. Ry. Co., 150 Mo. 137; Knoop v. Kelsey, 102 Mo. 291; Weil v. Posten, 77 Mo. 284; Bruce v. Sims, 34 Mo. 246. (11) An assignment of a judgment to one not a party thereto does not extinguish the judgment. Not even where the assignee'is a surety for the judgment debtor. 23 Cyc. 1475; Bardon v. Savage, 1 Mo. 560; Bradley v. Heffernan, 156 Mo. 653; Prather v. Hairgrove, 214 Mo. 142; Thompson v. Longan, 42 Mo. App. 146; Marshall v. Meyer, 96 Mo. App. 643; Yan Hoose v. Machinery, 169 Mo. App. 54. (12) The liability of stockholders to corporate creditors does not make the stockholders sureties for each other. Guerney v. Moore, 131 Mo. 650. (13) The assignee of the subject-matter ot a pending suit gets all the rights of his assignor. R. S. 1909, sec. 1924; United Shoe Mach. Co. v. Ramlose, 210 Mo. 63.1; Hendricks v. Callaway, 211 Mo. 536; Van .Syckel v. Beam, 110 Mo. 589; Craig v. Zimmerman, 87 Mo. 475; Langford v. Varner, 65 Mo. App. 370; Bank v. Stanley, 46 Mo. App. 441; Craig’s Appeal, 92 Mo. 396. (14) The judgment against the delinquent stockholder should be for the amount due on his stock with interest from institution of suit. Millisack v. Moore, 76 Mo. App. 528.

      jHenry Kortjohn, Jr. for respondents.
    (1) Stockholders who have knowledge and participate in the issuance of stock upon payment of less than its par value cannot afterwards complain of the transaction' either in their own behalf as stockholders or creditors. Richard Halón Millinery Co. v.-Miss. Valley Trust Co., 251 Mo. 587; Meyer v. Mining & Milling Co., 192 Mo. 162, 191; Woolfolk v. January, 131 Mo. 620; Berry v. Rood, 168 Mo. 333; Coleman v. Hagey, 252 Mo. 146;' Biggs v. Westen, 248 Mo. 345. (2) A creditor of a corporation, who becomes such with knowledge that its stock was neither paid nor to be paid, but was issued merely as a bonus for the subscription and payment of other stock, cannot enforce his claim against the corporation by compelling its shareholders to pay to the corporation, its trustee or other representative, any portion of the stock so donated. Meyer v. Mining & Milling Co., 192 Mo. 162; Trust Company v. McMillan,. 188 .Mo. 567; Shields v. Hobart, 172 Mo.~ 491; Berry v. Rood, 168 ,Mo. 316; Woolfolk v. January, 131 Mo: 637; Bonet Construction Co. v. Central Amusement Co., 153 Mo. App. 195. (3) The defendants in their answer set forth all of the facts and their belief that under the facts they were not stockholders, and, further, by way of cross-bill, that if the court found them to be stockholders it issue summons for the other stockholders who were not before the court, and the defendants prayed the court that all in the same status be forced to contribution. There was no special demurrer or motion of any sort filed against this pleading before the trial. Any inconsistency in the pleading, if there be such, is therefore waived. Hendricks v. Galloway, 211 Mo. 536; State ex rel. Bristol v. Walbridge, 69 Mo. 657. (4) This is an equity proceeding, and if under the law contribution ought to be had among the stockholders a court of equity will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties. Real Estate Savings Institution v. Collonius, 63 Mo. 295. (5) All of the persons who subscribed for second mortgage bonds and received bonus stock, the way the present plaintiffs and the defendants did, are in the same status. As to these persons the judgment of the original plaintiffs is satisfied, although never satisfied of record. If there be no claim on account of the purchase of the judgment, it is only through the doctrine of contribution, which doctrine is the result of general equity, based on the ground of equality of burden and. benefit. Yan Petton v. Richardson, 68 Mo. 379. (6) The defendant’s amended answer pleads equitable set off, and asks for recoupment against the assignees of the judgment, who are now the real parties plaintiff, represented by the nominal plaintiffs. This is a proper counterclaim in equity. Grand Lodge of Masons v. Knox, 20 Mo. 435, 436; Trust and Banking Co. v. Dierks Lumber Co., 133 Mo. App. 39. (7) After the assignment of the judgment by plaintiffs and the payment to them of $77,761.36 by the fellows stockholders of these defendants, the judgment creditor was satisfied, and as to him the judgment was paid. If the defendants, fellow stockholders as assignees, had any legal right thereafter to continue the cause of action, it was only for contribution against these defendants. This, even if they chose to continue it in the original plaintiff’s name. Trust & Banking Co. v. Dierks Lumber Co., 133 Mo. App. 39. (8) Under our statute, it is the assignee who may have his name substituted as plaintiff. The original plaintiff has no further interest in the suit. The assignee is the plaintiff after assignment, whether he has his name substituted or not and any equity against him may be set up. R. S. 1909, sec. 1924; R. S. 1899, sec. 764.
   BOND, C. J.

The petition alleges that plaintiffs recovered judgment against the Parkview Realty & Improvement Company on July 8, 1912, for $117,303.35. This judgment was the consummation of litigation between said parties, heard twice on appeal in this court (241 Mo. 112; 255 Mo. 76).

The petition further states that returns nulla bona were made on two executions under said judgment; that the corporate defendant in said judgment is wholly insolvent, except the amount due to it from subscribers to its stock who have obtained the same without payment therefor The plan of the incorporation of the company is then set out, showing that it gave to each purchaser of its bonds a certain proportion of common stock as a bonus; that its whole capitalization was based upon the taking over of said real estate; heavily incumbered, at a fictitious valuation over and above what was paid for it by the purchasing agents; that this device of the corporation was carried out by the issuance of $5,500,000, par value, of shares paid for by real estate mortgaged for $3,500,000; that said mortgage represented the funds used in the acquisition Oof the land and the extinguishment of all prior incumbrances thereon.

The petition further alleges that the defendants in this case were allotted shares of stock for which they owed the corporation, in the aggregate, $52,500, and for which they paid nothing. Plaintiffs prayed for an accounting by defendants and the application of this amount to the payment of their judgment and costs.

Defendants answered by a general denial and that plaintiffs had knowledge of the method of capitalization of the corporation; that plaintiffs themselves had purchased a'bond of said corporation and knew its capital stock had not been paid in money; that plaintiffs had brought six suits to enforce their judgment, when one would have been sufficient, and had not made necessary parties to the present action; that .if defendants are held liable by the court, then others similarly situated are liable and should be made parties; that plaintiffs have no longer any personal interest in said suit, but are representing a committee or syndicate who have agreed to pay plaintiffs a part or all of their judgment and costs; that if defendants are held liable, then all the persons so agreeing with plaintiffs should be held liable also and brought into prorate.

The reply was a general denial.

Upon a hearing the trial court, sitting as a chancellor, dismissed plaintiffs’ bill, from which they have duly appealed..

I. The substance of the allegations of plaintiffs’ petition were sustained by the evidence adduced on the hearing. The petition stated a cause of action, hence plaintiffs are entitled to recover unless some one (or more) of the affirmative defenses set up in the answer is sustained by the preponderance of the evidence, and is also sufficient in law to prevent a recovery.

After the obtention of their judgment, the plaintiffs began suits, similar to the present, to enforce it against the stockholders of the defendant corporation, who were indebted for stock allotted to them. Thereupon a number of stockholders entered into an agreement to put $160,000 in the hands of the Mercantile Trust Company as trustee, to be held for the purpose of defending the suits instituted by plaintiffs and discharging any judgments that might be recovered. A committee of the body thus formed purchased the judgment which plaintiffs sued on and took an assignment in blank of the same, on December 16, 1914. No substitution of parties was made and the cause proceeded in the name of the original plaintiffs. [E. S. 1909, see. 1924.]

In speaking of this assignment Mr. Collins, after having produced the assignment and the agreement under which the money was put in the hands of the trustee for the purposes expressed therein, said: “Part of the money deposited was paid over to the Scotts in consideration of the assignment of the judgment for the benefit of the parties who subscribed to this contract. After this agreement was executed, a committee consisting of Mr. Wright, Mr. Skinner and Mr. Carter, bought from the plaintiffs their judgment and got an assignment of it. There never was any intention and it was never contemplated in any way that there was a satisfaction of the judgment, because the very purpose of the agreement was to give these parties who had provided the fund the right to enforce contribution from the others who had refused to come in.”

This assignment of the judgment (after -the bringing of the present suit, to other stockholders of the defendant corporation who were subject to suit by any creditor of the insolvent corporation), was brought home to the actual knowledge of the defendants in this action, who did not, however, by appropriate pleadings in the way of counterclaim or cross-bill, bring in any other stockholders whom they could require to contribute; neither did they pray for the substitution of the purchasers of the assigned judgment, to the end that there might be an equitable accounting and contribution on the part of such purchasers in the payment of this established indebtedness against the corporation. [Hatch v. Dana, 101 U. S. 205.] In this state of the pleadings the only question, therefore, is whether or not the assignment of the judgment in the circumstances shown on the trial, precluded the original plaintiffs from further prosecution of this 'action. Under our statute it did not. Hence, whatever may. be the equities inter sese between defendants and the plaintiffs who have acquired the beneficial ownership of the judgment sued on as to any accounting or contributing among themselves, no such matters were brought within the cognizance of the court on the present trial and were not dealt with or attempted to be adjudged. Having been left out of the pleadings, they were necessarily excluded from the view of the court in rendering its decree. [Wilson v. Wilson, 255 Mo. l. c. 537, 538, et cases cited.]

Defendants, however, invoke the rule of law that no creditor of a corporation who knows whén he becomes such, that its shares of stock have been issued to the subscribers therefor -without payment of money or money’s worth, can enforce his claim (upon default of payment by the corporation) against such shareholders to the extent of their indebtedness for the stock issued to them. There is no question as to the correctness of this equitable principle. [Biggs v. Westen, 248 Mo. 345.] However, as to this charge of knowledge, the testimony of the Scotts was, in effect, that they knew nothing whatever of the plan of the capitalization of the defendant corporation. One of them, among other things, said: “I made no inquiry as to the ability of the company to pay for the work under the contract, because I knew the company was composed of the Lincoln Trust Company group, and that Mr. Pitzman, was handling the job, and that was to me sufficient guaranty that it was all right.”

The witness relied on by defendants to bring home knowledge to plaintiffs was Mr. Pitzman, who advertised the bid for grading work and who received plaintiffs ’ hid, to whom the contract was let on February 12, 1902. This witness said: “I don’t know whether the plaintiffs asked me anything with reference to the manner in which the Parkview Company had been organized and the way its capital stock was paid up, but I make it a rule as a general thing to.tell every contractor who bids whether the parties letting the work are responsible or not and how they are organized. I think I did this in this instance. It is many years ago, but as far as I recollect, I did tell Ed Scott. I think I told him how the company was organized. I will not say positively that I remember saying anything to him about that.” He stated further that he told Mr. Scott that the property had been bought at a high price and that he had before him on his table one of the agreements for the subscriptions for the second mortgage bonds when Mr. Scott came into the office, adding further: “I explained to him that I did not think that there would be any doubt about the money being ready for the grading contract, because of the responsibility of the parties that signed the second mortgage bonds subscriptions. I cannot tell whether I showed him that paper or not.”

The contrary tendency of the statements of these witnesses presented, at mflst, an issue of fact, as to which we do not find a preponderance in favor of the affirmative defense of knowledge on the part of plaintiffs of tEe scheme of capitalization devised by the corporation.

Neither does the purchase of one of the company’s bonds carrying a bonus of common stock, impute knowledge to the Scotts, for the evidence is clear that this was made after the corporation had made the grading contract creating an indebtedness on its part to the Scotts. In that event the Scotts would not be prejudiced in the enforcement of any indebtedness accruing under their prior contract; for such subsequent knowledge does not tend to negative their reliance upon the presumption that the corporation was legally organized and its shares of stock had been issued for money or money’s worth at the time of its prior contract Avith them. [Rogers v. Mining Co., 185 Mo. App. l. c. 675; Guerney v. Moore, 131 Mo. l. c. 671; Coleman v. Hagey, 252 Mo. l. c. 146; Trust Co. v. McMillan, 188 Mo. l. c. 567.]

It is an elementary rule that courts of equity are powerless to administer redress beyond the legitimate scope of the pleadings of the parties. [Newham v. Kenton, 79 Mo. 382; ‘Whiting v. Land & Sheep Co., 265 Mo. l. c. 382 et cases cited.] In the present case the defendants wholly failed, either by allegations in their pleadings, or in any other mode, to invoke or secure redress as against the beneficial owners of the judgment or any other stockholders occupying a similar status with the defendants. Upon the issue joined and the proof adduced at the hearing, the decree of the trial court dismissing plaintiffs’ suit was manifestly erroneous.

It is therefore reversed and the cause remanded for further proceedihgs not inconsistent with this opinion. It is so ordered.

PER CURIAM:

The foregoing opinion of Bond, C. J., in Division is adopted as the opinion of Court in Banc.

All concur (Faris, J., in result) except Graves, J., who dissents.