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    O’CONNOR v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    October 17, 1906.
    1. CONSTITUTIONAL STATUTE: Attorney’s Lien Act: Title. The provisions of the Attorney’s Lien act (Laws 1901, p. 46) providing for an attorney’s lien upon his client’s cause of action or counterclaim, and stating the nature and character of the contract which the attorney is authorized to enter into with the client and made the basis of the lien, and providing for notice and other incidents for making the lien effective, and providing that a defendant who ignores such notice and lien and settles with the client without the attorney’s consent, shall be liable to the attorney for his interest in the litigation, according to the contract, are clearly in harmony with the subject as expressed in the title, which is: “An act to prevent frauds between attorneys, clients and defendants; making agreements between- attorney and client a lien upon the cause of action.”

      2. -: -: -: Clearly Expressed. An act should not be declared unconstitutional on the ground that the title does not sufficiently clearly express the subject-matter of the act, unless the title is so expressed as to clearly violate the command of the Constitution.
    3. -: -: Special Law. Said act is not class legislation simply because it gives a lien to attorneys-at-law only. It applies to a class of persons engaged in a particular profession; it does not undertake to select any particular person in that class;
    4. -: -: Due Process of Law. Neither does said act deprive a defendant or any one else of his rights without due process of law, and it is not in that respect in conflict with the Federal Constitution.
    5. -: -: Restrictive of Right to Contract. Said act does not deprive a defendant of any of his rights to contract. It does not deprive him of the right to make a settlement of a suit, but it requires him in making such settlement to take into consideration the fact that the attorney has a lien upon the cause of action, and if he ignores the lien he is liable in an action at law for the amount of the lien.
    6. ATTORNEY’S FEES: Lien Statute: Suit in What Court. The statute expressly provides for a separate cause of action by the attorney to recover the amount of his lien in a suit which has been settled by defendant with his client, without his consent, after notice of his contract of employment. The action is not one strictly for the enforcement of the lien, but one for the recovery of the amount of the lien by reason of the failure of the defendant, in settling with the client, to recognize the lien. The action, therefore, can be brought, as a separate one, and in a separate court from that in which the original suit was instituted.
    7. PRACTICE: Finding of Fact: No Exception. Where the bill of exceptions, or abstract of record in lieu thereof, discloses no objections or exceptions to the failure of the court to make a finding of facts, the trial court will not be convicted of error for failure to make such a finding.
    8. -: -: No Dispute About Facts. Where appellant ad■mits in his brief that there was no dispute about the facts and that the proof established the allegations of the petition, there is no necessity for a finding of facts, and there remained nothing for the trial court to do except to declare the law governing the cause.
    Appeal from St. Louis City Circuit Court.— Hon. Jesse A. McDonaldJudge.

      Affirmed.

      George W. Easley with Boyle & Priest for appellant.
    (1) There is not a single word in the title that would direct the mind to- the question of making such a contract lawful. Nor is there anything in the title of the act indicating that notice in writing will create a lien, and above all there can be nothing evoked from the title to this act to show that it was the purpose of the Legislature to create a liability for making a- settlement without the written consent of the attorney. The title of this bill gives no indication that contracts of the character named were to be legalized, that notice in writing was to create a lien, or that a settlement made by the defendant was to create a liability therefor. No suggestion of either of these points can be found in the title to the act. If the constitutional provision is not a dead letter, all if its purposes are defeated by allowing this act to stand under this title. Cooley’s Const. Lim., 141; St. Louis v. Tiefel, 42 Mo. 590-^Dor-sey’s Appeal, 72 Pa. St. 192; In re Green, 14 Colo. 401; Brooks v. People, 14 Colo. 41B. (2) In considering this question the court must bear in mind that the first section of the act of February 25, 1901, has no bearing upon the question. It depends wholly upon the construction of the second section of the act. In construing the second .section it is important to determine at what time the lien attaches under that section, to what does it attach, and against whom may the lien be enforced. The language of the act which attempts to create the lien answers with a definiteness each of these questions. From the reading of the first section of the act it is evident that a passive or inchoate lien of the attorney arises from the commencement of the suit, and that it attaches and becomes a lien when the claim or demand has been reduced “to a verdict, report decision, or judgment in his client’s favor.” The inchoate lien embraces the client’s cause of action or counterclaim, and attaches, that is, becomes an active lien upon the claim when prosecuted to a verdict, report, decision, or judgment in his client’s favor. That section also with equal definiteness answers the other query as against whom the lien attaches, and against whom it may be enforced. The answer is that it exists and may be enforced against any one “in whosesoever hands they may come.” The lien is merely passive until called into active existence by being reduced to a sum certain by any of the aforesaid modes specified in the ■Attorney’s Lien act. Until there has been a verdict, report, decision, or judgment in favor of the attorney’s client, there is nothing tangible to which the lien can attach. Until then there is no judicial determination that there is a cause of action. After being affixed as designated by the statute, there is something tangible to which the lien can then attach. A cause- of action has been found to exist. To a mere cause of action it can never attach as a lien' capable of being enforced by the courts, until that cause of action has been judicially determined. The second section of the act has a two-fold purpose. It was intended to, and it does so far as the Legislature can do so, legalize contracts, which, in the absence of this statute and at common law, would be champertous. Second, it then provides for the existence- of a passive or inchoate lien upon the ■cause of action from the time of giving notice of the suit to the defendant. The true construction of the first section of the act is that the' lien when final judgment is entered relates bach to the commencement of the action, and as the defendant must have had notice of that action by the commencement of the suit, no notice of the claim of the lien is necessary under the first section of the statute, hut because there was no legal way by which the defendant could be notified of the employment of the attorney to prosecute the plaintiff’s case, the statute provided for notice of his employment, and after judgment that would relate back to the time of the service of the notice of his employment and be the creation or passing of the passive or inchoate lien from the time of the service of such notice. The final judgment, verdict, report or decision determining the fact that the plaintiff had a cause of action and reducing the monetary value of that cause of action to a fixed sum here is necessary to the creation of the attorney’s lien, under the second section of the statute as under the first. ' The lien upon the cause of action is given by the first section, and must be controlled by the terms of the first section, and under that section it is clear that the lien does not attach until there be a verdict, report, decision, or judgment in favor of the attorney’s client. Pending the time of the commencement of the suit as fixed by the first section, or the notice required by the second section, it is equally provided that no settlement between the parties can affect the rights of the parties, whether made before or after judgment, and when the final judgment pending the cause of action is made under the first section, it relates back to the commencement of the action, and any settlement between that time and the final judgment will not affect the relations between the parties. So under the second section any settlement made between the parties between the time of the giving of the notice and final judgment shall not affect the attorney’s lien. The lien referred to in the second section by the expression “attorney’s lien as aforesaid” is the same lien that is given by the first section, and the whole purpose of the provisions of the second section in relation to the lien was for the purpose of protecting the attorney’s rights between the time of his employment and giving to the defendant notice thereof and the commencement of the suit. After that the first section must control. As this record shows that the settlement was made after the commencement of the action and before final' judgment,,we are only concerned with the. construction of the second section of this act. We insist that there can be no enforcement of an'attorney’s lien until a final judgment has been rendered in favor of the attorney’s client. Up to that time there is nothing to which the lien can attach, and the rule seems settled that in cases in the condition of the one at bar, that is, where the lawyer takes employment on a contingent fee, his client may not settle the case so as to deprive him of his fee, and the only way he can urge the enforcement of his lien is to prosecute the original suit to final judgment, and enforce his lien against that judgment, in doing which he must establish the plaintiff’s right to recover on the state of facts existing at the time the case was first disposed of, independent of the question of fees. .Trigg v. Chambers, 56 Ga. 279; Coleman v. Ryan, 58 Ga. 132; Swift v. Register, 97 Ga. 446; Rogers v. Furse, 83 Ga. 115; Brown v. Railroad, 101 Ga. 80; O’Brien v. Railroad, 50 N. Y. Supp. 159; Johnson v. McCurry, 102 Ga. 471; Smelker v. Railroad (Wis.j, 81 N. W. 995; Railroad v. Givens, 13 Ky. L. R. 491; Nat. Ex. Co. v. Crane (N. Y.), 60 N. E>. 768. (3) The lien should have been enforced against the sum of money in the hands of the original plaintiff. Such is the direct provision of the act, that the lien shall be enforced against the proceeds thereof in whosesoever hands they may come. This record shows that they were in the original plaintiff’s hands, and the lien should be enforced against that fund. The St. Louis Court of Appeals, in Yonge v. Railroad, 109 Mo. App. 235, has very much misapprehended the New York statute, the Georgia and Wisconsin statutes, and construes them quite differently from what the courts of those States do, and finally plants itself upon the broad ground that the Legislature has chosen to give a right of action simply for making the settlement. Fair dealing requires that this act shall have the construction that we maintain; that it be construed so as to rid the Attorney’s Lien act of as many evils as possible; that it may not lead the members of the bar, as it 1ms, into tempation that robs them of professional pride and makes the practice of the law in such cases mere commercialism; which has organized many law bureaus for the purpose of looking up such claims and prosecuting them on the' percentage basis. This is apparent from the Yonge case, which is a fair sample of the kind. By this the lawyer loses professional pride, deprives himself of his desire to be an aid of the court in the correct administration of justice, and putting his personal interest in direct opposition to his professional duties, and leading him into every character of temptation. It seems the settled rule in this State that justices’ courts have only such jurisdiction as is conferred by statute. Rocheport v. Bank, 75 Mo. App. 332; R. S. 1899, secs. 695, 3835.

      John B. Dempsey for respondent.
    (1) There is nothing in the Constitution of the State of Missouri, nor in the Constitution of the United States, which prohibits the Legislature from enacting the statute in question. Its power to enact laws similar in terms, scope and purpose has been upheld by this and other appellate courts, as will appear in their .decisions sustaining our lien laws. Mechanic’s lien, sec. 4203, R. S. 1899; landlord’s lien on crops, sec. 4123, R. S. 1899; Henry & Coatsworth Co. v. Evans, 97 Mo. 47; Henning v. Stead, 138 Mo. 430; Bank v. Carswell, 126 Mo. 436; Davidson v. New Orleans, 96 U. S. 97. Legislation is not open to the charge of depriving one of his rights without due process of law, if it be general in its operation upon the subject to- which it relates. Dent v. West Virginia, 129' IT. S. 124. And this is true even when applied to a single class. Railroad v. Humes, 115 U. S. 512; Railroad v. Mackey, 127 U. S. 205. An act which relates to persons or things as a class is a general law; it is only when it deals with particular persons or things of a class that it is special. State ex rel. v. Tolle, 71 Mo. 650. If this act be held not “due process of law” because it deals only with attorneys and their clients, and the debtors of the latter, then all statutes governing the affairs of one class, of business now in force must be invalid. (2) The second section of the act gave the plaintiff a lien on the claim- and cause of action of his client, French, which could not, after notice, be defeated by any settlement of the claim or cause of action had between- French and the defendant without plaintiff’s consent. Yonge v. Railroad, 109 Mo. App. 235; Laws 1901, p. 46. And when a statute confers on one a lien or right of action against another, but omits to provide the manner in which it shall be enforced, the party having such lien may proceed to enforce same by the usual common law remedy; that is, by an action at law corresponding to trespass on the case. Sedgwick, Stat. & Const. Law (2 Ed.), p. 74; Young v. Renshaw, 102 Mo. App. 184. Hence, the suit was properly commenced before a justice of the peace, the sum involved being within his jurisdiction. Secs. 6517 and 6519, R. S. 1899. (3) The provisions of the second section of the act in question render the act different to the laws of New York, Wisconsin and Georgia relating to the subject of an attorney’s lien. Therefore, the cases cited from these States are inapplicable to a proper construction of the second section of the law in this State in question. Hence, plaintiff was not required to prosecute the suit of French v. defendant to final judgment, and then attach his lien to the judgment so obtained, as was held under tbe statutes in force in some of the above-mentioned States. Nor was he required to pursue the fund created by the settlement while in the hands of his client. Yonge v. Railroad, 109 Mo. App.. 235.
   FOX, J.

This cause is brought to this court by appeal from a judgment of the circuit court of St. Louis in favor of the-plaintiff and against the defendant for $41.66.

This action was commenced before a justice of the peace -of the city of St. Louis. The statement, filed by plaintiff before the justice, alleged that he was an attorney and counselor at law; that defendant was a corporation, operating a street railway, and that on or about the 30th day of June, 1902, one Emma French sustained injuries to her person while alighting from one of defendant’s cars, which she alleged to be due to the neglig'ence of defendant’s servants-in charge of said car, whereby she became the ‘ ‘ possessor of a subsisting claim and cause of action for $10,000 damages.” That, thereafter, on the 8th day of August, 1902, said Emma French entered into a written contract with this plaintiff, employing and instructing him to enter and prosecute an action in her favor for said $10,000 dam-ages against defendant-, and that Mrs. French agreed that plaintiff should receive for his services for entering and prosecuting said action one-third of all of any sum of money that should be recovered in said suit, or by or through any compromise of said suit, without regard to the time at which said compromise should be made. That on the 9th day of August, 1902, plaintiff entered an action at law in favor of said Mrs. French on her alleged cause of action. That, thereafter, on the 3rd day of November, 1902, plaintiff served notice in writing of said contract of employment by Mrs. French, and that said action had been instituted in the circuit court of St. Louis, Missouri, also showing the proportion of the recovery that plaintiff was to receive, either by suit or compromise of the same; and further alleged that, on the 25th day of November, 1902, Mrs. French and the defendant, herein, without the knowledge or consent of this plaintiff, compromised said action, and the said claim on which said action was based for the sum of $125, which sum was paid to Mrs. French by the defendant, and said Emma French then and there entered into a stipulation for the dismissal of said cause at her costs, which said stipulation defendant filed in said court, and the prosecution of said cause was dismissed, whereby plaintiff has been deprived of his fee; the insolvency of Emma French is alleged and judgment is prayed under the act of February 25, 1901. A suit was brought for the recovery of the sum of $41.66. The trial before the justice resulted in a judgment for $41.66 in favor of the plaintiff, from which judgment the defendant appealed by filing an affidavit and bond within the time required, and the cause was tried de novo in the circuit court on May 5, 1903.

There is no necessity for reproducing the evidence introduced at the trial of this cause in the circuit court, for appellant admits in its brief that the evidence preserved in the bill of exceptions substantially sustains the averments of the plaintiff’s statement of this case, and there are no disputed facts in the case.

Upon the submission of the cause to the court there was a finding and judgment for the plaintiff in the sum of $41.66. Motions for new trial and in arrest of judgment were timely filed and were by the court overruled. From this judgment defendant prosecuted its appeal to this court and the record is now before us for consideration.

OPINION.

It is apparent from the record in this canse that the trial court made the order granting the appeal to this court for the reason that defendant challenges the constitutionality of the act upon which this proceeding is predicated. The contentions of appellant upon this constitutional question may thus be briefly stated:

1. That the act of February 25, 1901, upon which this action is based, is unconstitutional and void because in contravention of article 4, section 28, of the Constitution of Missouri, which substantially provides that no act shall contain more than one subject, which shall be clearly expressed in the title.

2. It is insisted that said act of February 25,1901, is contrary to and violative of the provisions of article 2, section 30, of the Constitution of this State, which provides that no person shall be deprived of life, liberty or property without due process of law.

3. ' It is urged that this act is unconstitutional and void for the reason that it is in contravention of article 2, section 20, of the Constitution of Missouri, which substantially provides that “no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law; and that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and as such judicially determined, without regard to any legislative assertion that the use is public.”

4. It is contended by appellant that the act of February 25, 1901, is unconstitutional and void for the reason that it contravenes the provisions of section 1 of the fourteenth amendment of the Constitution of the United States.

This act of February 25, 1901, the constitutionality of which is challenged by appellant, was Senate Bill 9, head notes, ‘ ‘ Attorneys-at-Law: Lien Upon Cause of Action,” followed by the following title: “An Act to prevent frauds between attorneys, clients and defendants; making agreements between attorney and client a lien upon the cause of action.”

There is no subject that has more frequently had the attention of this court than the one in which acts of the General Assembly have been challenged for failure to conform its legislation to requirements of section 28, article 4, of the Constitution of this State, which substantially provides that no bill shall contain more than one subject, which shall be clearly expressed in its title. We deem it unnecessary, however, to review the numerous cases upon this subject, but shall be content with a brief reference to the rules to be deduced from the adjudications as to the objects and purposes sought by the framers of the Constitution in the enactment of such constitutional provisions.

It has been repeatedly stated by this court that the objects and purposes of this constitutional provision were to prevent incongruous, disconnected matters which had no relation to each other, from being joined in one bill; however, it has always been recognized that all matters that are germane to the principal subject and have a natural connection with it, might properly be incorporated in the same bill. In Ewing v. Hoblitzelle, 85 Mo. 64, it was ruled: “Where all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single, . . . . and, if it is sufficiently expressed in the title, the statute is valid.” This rule was approved by Judge Black, in State ex rel. Attorney-General v. Miller, 100 Mo. 439, citing, in support of such approval, City of St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; City of Hannibal v. County of Marion, 69 Mo. 571; and State ex rel. v. Mead, 71 Mo. 268, as substantially announcing the same rule as approved in Ewing v. Hoblitzelle, supra. To the same effect is State ex rel. v. Bronson, 115 Mo. 271, where it was ruled that this section of the Constitution should be reasonably and liberally construed and applied; due regard being had to its object and purpose. It was again announced in that case that if all the provisions of the bill have a natural relation and connection, then the subject was single, and this, too, though the bill contains many provisions. In Lynch v. Murphy, 119 Mo. 163, the rule announced in the foregoing cases was approved and followed.

It is insisted by appellant that this act embraces more than one subject and is therefore violative of the constitutional provisions now being discussed. "We are unable to give our assent to this contention. It is clear that the subject of this act was the making of agreements between attorney and client a lien upon the cause of action, and the purpose of it was to prevent frauds between attorneys, clients and defendants. The contention upon this proposition is thus stated in the brief by learned counsel for appellant:

“The Attorney’s Lien act embraces four separate’ and distinct subjects, to-wit:
“1. The subject of giving an attorney a lien upon his client’s cause of action or counterclaim, which lien attaches to a verdict, report, decision or judgment in his client’s favor.
“2. The object of making it ‘lawful for an attorney at law either before suit or action is brought, or after suit or action is brought, to contract with his client for legal services rendered or to be rendered by him for a certain portion or percentage of the proceeds of any settlement of his client’s claim or cause of action.’
“3. The subject or object of making notice in writing to the opposite party that such legalized contract has been made, which notice creates a lien upon the claim or cause of action and upon the proceeds of any settlement thereof.
“4. The subject of making defendant liable for in any manner settling any claim or suit after notice is served, without written consent of the attorney. ’ ’

To fully appreciate this proposition it is well to know what are the provisions of the act to which the contentions of appellant are directed. It provides:

“Section 1. The compensation of an attorney or counsellor for his services is governed' by agreement, express or implied, which is not restrained by law. From the commencement of an action or the services of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosesoever hands they may come; and cannot be (effected) [affected] by any settlement betwen the parties before or after judgment.
£ £ Sec. 2. In all suits in in equity and in all actions or proposed actions at law, whether arising ex contractu or ex delicto, it shall be lawful for an attorney at law either before suit or action is brought, or after suit or action is brought, to contract with his client for legal services rendered or to be rendered him for a certain portion or percentage of the proceeds of any settlement of his client’s claim or cause of action, either before the institution of suit or action, or at any stage .after the institution of suit or action, and upon notice in writing by the attorney who has made such agreement with his client, served upon the defendant or defendants, or proposed defendant or defendants, that he has snch an agreement with his client, stating therein the interest he has in such claim or cause of action, then said agreement shall operate from the date of the service(s) of said notice as a lien upon the claim or cause of action, and upon the proceeds of any settlement thereof for such attorney’s portion or percentage thereof, which the client may have against the defendant or defendants, or proposed defendant or defendants, and cannot be aifected by any settlement between the parties either before suit or action is brought, or before or after judgment therein; and any defendant or defendants, or proposed defendant or defendants, who shall, after notice served as herein provided, in any manner, settle any claim, suit, cause of action, or action at law with, such attorney’s client, before or after litigation instituted thereon, without first procuring the written consent of such attorney, shall be liable to such attorney for such attorney’s lien as aforesaid upon the proceeds of such settlement, as per the contract existing as herein above provided, between such attorney and his client.” [Laws 1901, p. 46.]

A careful analysis of the foregoing provisions makes it manifest that the matters therein contained have a legitimate connection and relation to each other, and are clearly germane to the subject expressed in the title, of making agreements between attorney and client a lien upon the cause of action. The first section provides for the attorney’s lien upon his client’s cause of action or counterclaim. That section is clearly in harmony with the subject as expressed in the title. Section two provides the nature and character of the contract which the attorney is authorized to enter into with his client in all suits in equity and in all actions or proposed actions at law, whether arising ex eonr tractu or ex delicto. This is clearly germane to the subject as expressed in the title, for the reason that it deals 'with the agreement between the attorney and the client, which is to be made a lien upon the cause of action. Then follows the provision which must be treated, as the incidents and means of accomplishing the purpose of the legislation, that is, the giving of the defendant notice of the agreement between the attorney and client, stating therein the interest the attorney has in such claim or cause of action, with the view that the defendant might regulate his dealing with the plaintiff, so far as adjusting or settling that cause of action, accordingly. Then follows the particular provision upon which the cause of action in the case at bar was predicated, that if any defendant or defendants, or proposed defendant or defendants, shall, after notice served as herein provided, in any manner settle any claim, suit, cause of action or action at law, with such attorney’s client, before or after litigation instituted therein, without first procuring the written consent of such attorney, he or they shall be liable to such attorney for such attorney’s lien as is provided by this act.

We think it is clear that all of the provisions of this act clearly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, and without the provision requiring defendants, after due service of notice, in lawsuits or contemplated lawsuits, from respecting the agreements between attorneys and clients, this legislation in behalf of the lawyers of this State would be of little avail in protecting them in respect to their lien upon the cause of action, as contemplated by this act.

It is also insisted that the title to this, act does not sufficiently clearly express the subject as to meet the requirements of the constitutional provisions. In discussing this provision of the Constitution applicable to this subject, this court, in State ex rel. v. Ranson, 73 Mo. 78, said that “the adjudicated cases, as well as the elementary writers, all concur that it was to prevent the vicious practice of conjoining, in the same bill, incongruous matters, and subjects having no legitimate connection or relation to each other, and in no way germane to the subject expressed in its title; that its object was to prevent surprise or fraud upon members of the Legislature, rather than embarrass legislation by making laws unnecessarily restrictive. [Cooley on Const. Lim., 174; City of St. Louis v. Tiefel, 42 Mo. 590.] Some of the adjudicated cases have construed this provision with some strictness, but in the majority of them the rule is otherwise. In the case of State v. Miller, 45 Mo. 497, this court uses this language: ‘The courts, in all the States where a like or similar provision exists, have given it a very liberal interpretation, and have endeavored to construe it so as not to limit or cripple legislative enactments any further than what was necessary by the absolute requirements of the law.’ Justice Cooley, in his work on Constitutional limitations, page 178, says: ‘There has been a general disposition to construe the constitutional provisions liberally, rather than embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purpose for which it was adopted.’ The Supreme Court of Louisiana, in commenting on argument of counsel, which demanded a strict construction of a constitutional clause like this, uses this language: ‘We think the argument invokes an interpretation of the constitutional clause too rigorous and technical. If in applying it we should follow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the Legislature without fulfilling’ the intention of the framers of the Constitution.’ [Succession of Lanzetti, 9 La. Ann. 333.1”

This court very clearly pointed out the rule which should be applied in the determination of the sufficiency of the expression, of the subject in the title of the bill in State ex rel. v. County Court, 128 Mo. 427; it was ruled that the mere generality on the title will not vitiate an act of the General Assembly unless the title is of such a nature as to compel a conviction, that it was designed to mislead as to the subject dealt with. It is clearly the province of the lawmaking power to decide upon the title of an act and at least some deference must be paid to their decision, and an act should not be declared unconstitutional for the reason that it fails to clearly express the subject by its title, unless it clearly violates that command of the Constitution. [Dogge v. State, 17 Neb. 140.]

Applying the rule announced in the foregoing cases to this proposition, we are of the opinion that the subject of the act was sufficiently expressed in its title, and that the provisions of it are germane to. the principal subject and have a natural connection with it, and we discover nothing, either in the title or in the provisions of the act, which were calculated to surprise or operate a fraud upon any of the members of the lawmaking power.

Nor is this act open to the charge of contravening other provisions of the Constitution indicated by appellant in its brief. It is clearly not class legislation, as insisted by learned counsel for appellant, on the ground that it simply applies to attorneys-at-law. The distinction between general and special laws has been very clearly drawn by numerous cases in this State. The rule upon this subject as announced by the Supreme Court of Pennsylvania in Wheeler v. Philadelphia, 77 Pa. St. 338, 348, has repeatedly met the approval of this court. It is there held “that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” And it was said by this court in State ex rel. Lionberger v. Tolle, 71 Mo. 645, that the classification spoken of by the Supreme Court of Pennsylvania does not depend upon numbers. [McAunich v. Railroad, 20 Iowa 338, and State ex rel. v. Parsons, 40 N. J. L. 1, 8.] This distinction was followed and approved in State ex inf. v. Washburn, 167 Mo. 680; Hamman v. Central Coal & Coke Co., 156 Mo. 232; Lynch v. Murphy, 119 Mo. 173; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. Miller, 100 Mo. 439; Ex parte Lucas, 160 Mo. 218; Ex parte Loving, 178 Mo. 194.

This act undertakes to cover a certain class of persons engaged in a particular profession. It does, not undertake to select any particular person in that class, but applies to all alike who fall within the class of attorneys-at-law.

The history of legislation in this State demonstrates that the lawmaking power found it essential for the purposes of legislation to divide both persons and business in separate classes, and it is now no longer an open question in the courts of this State that legislation applicable to a particular class is not violative of the constitutional provision which prohibits the enactment of special laws. That lawyers in this State belong to a particular class we think there can be no dispute, and we can see no reason, even though they be only lawyers, why legislation which deals in a general way with the affairs of that class, should be held unconstitutional. We have legislation in this State respecting other classes of persons, such as fellow-servants, mechanics, landlords, bankers, insurance laws and other legislation which have reference to only one line of trade or class of persons; yet, wherever-these laws have been in judgment before the courts of this State they have been held constitutional and valid. [Henry & Coatsworth Co. v. Evans, 97 Mo. 47; Hennig v. Staed, 138 Mo. 430.]

The object and purpose of this act, the validity of which is challenged by appellant, was to provide a lien in favor of attorneys-at-law upon the cause of action, and we have repeatedly recognized the justness, as well as the constitutionality, of the lien provided for the mechanic and the landlord on crops made by his tenant, and we are unwilling to say that a lien provided for the legal profession should be ignored and held unconstitutional. While the business of these classes may be essentially different, we are unable to assign any legal valid reason why a distinction should be made against the legal profession. This act in no way deprives the defendant or anyone else of his rights without due process of law, and in view of the full discussion of that subject and the settled rules that have been made construing that part of the Federal Constitution, we deem it unnecessary to further discuss that proposition. [Davidson v. New Orleans, 96 U. S. 97; Sheppard v. Steele, 43 N. Y. 52; State v. Addington, 77 Mo. 110; Dent v. West Virginia, 129 U. S. 124; Railroad v. Humes, 115 U. S. 512; Railroad v. Mackey, 127 U. S. 205.]

It is insisted by appellant that this act restricts or destroys the defendant’s right to contract. We are unable to give our assent to this insistence. The provisions of this act simply create a lien upon the cause of action in favor of the attorney-at-law, and requires the defendant, after due notice, which creates such lien in dealing with the party as to- such cause of action, that such lien shall be respected. If we are dealing with the owner of a horse, and have notice that there is a valid subsisting lien upon the horse, we would not contend for a moment that such lien could be ignored. So it is in respect to other property — in dealing with the owner of it, if we have notice of the existence of a lien, such lien cannot be ignored. Is there any difference, if a defendant has notice of the existence of a lien of an attorney upon a cause of action and the instances above cited? We think not. This law does not deprive a defendant of any of his rights. When the lien is created, in dealing with the plaintiff in respect to such cause of action he must act accordingly. It does not deprive him of the right to make a settlement, but in making such settlement it simply requires that he shall take into consideration the fact that the attorney-at-law has a lien upon the cause of action, and if such lien is ignored he will be required to account to him in an action at law for the amount of such lien.

This act is vigorously assailed by learned counsel for appellant on the ground that it tends to> lead to the commission of unprofessional acts on the part of attorneys. This may be true in some instances, but the profession of law, when practiced upon a high plane, is an honorable one, and by no means should an act of the General Assembly, presumably enacted for the benefit of the honorable practicing lawyers of the State, be declared invalid for the reason that instances may arise by reason of the law which enable some of the less reputable attorneys to do acts which are not commendable along professional lines. In our opinion this law is constitutional and valid.

This brings us to the consideration of the only remaining proposition urged by counsel for appellant, that is, that plaintiff was not entitled to recover under the facts in this case,

It is first insisted by appellant that this action is for the enforcement of the lien and that the justice of the peace had no jurisdiction. It will be observed that this action is not strictly to enforce the lien provided-by the statute, but is to recover the amount of such lien by reason of the failure of the defendant to recognize the lien in its settlement with the plaintiff. This cause of action is expressly provided for by the terms of the statute. This same proposition was involved in Yonge v. Railroad, 109 Mo. App. 235. Goode, J., speaking for the court in that case, thus very clearly and correctly stated the law applicable to it. He said: “The second proposition which the defendant invokes is that Yonge should have sought to proceed with the case of Mrs. Hagan against the Transit and United Railways companies, notwithstanding the settlement; should hav interposed, against the dismissal of that suit and carried it forward to a judgment for the amount of his demand. The statute in hand says in plain words that a defendant who settles with an attorney under the circumstances given, shall be liable to the attorney for that percentage of the proceeds which his contract with his client entitles him to receive. An express statutory liability of a legal character was thereby created, and as no particular or exclusive remedy was provided for its enforcement, it is enforceable by the usual common law remedy; that is, by an action at law corresponding to trespass on the case. [Sedgwick, Stat. and Const. Law (2 Ed.), p. 74, et seq., and the cases cited in the foot notes.] The construction contended for by the defendants is clearly inadmissible in view of the provision that if a settlement occurs before an action is begun on the claim, the defendant is nevertheless liable. Of course, in such an instance, the attorney cannot go on with the prosecution of a suit in the name of his client, because there will be no suit pending for him to carry forward. In that contingency, unquestionably, an independent action can be instituted in his own name; and we discern nothing in the language of the statute which discriminates that contingency from one like the present, for the purpose of compelling the adoption of different procedures in two cases. So far as the enforcement of this lien is concerned, it strikes us as resembling the statutory lien on crops, which a landlord may make effective by suing one who purchases the crops on demised premises from the tenant with knowledge of the landlord’s lien.” Referring to the purposes of the provisions of this act, the court during the course of the opinion stated that “they indicate a purpose on the part of the Legislature to prevent a defendant, actual or potential, in an action sounding either in contract or tort, from settling with the claimant so as to cut out the claimant’s attorney from a contingent compensation to which the attorney is entitled under a contract. We see no reason why Tonge was not within the protection of this statute. He had a contract with Mrs. Hagan which stated definitely what percentage of any sum collected under it, with or without suit, should be his. The defendants had notice of that contract and settled with Mrs. Hagan in disregard of it. According to the plain language of the statute, they could only make a settlement with her which would be binding on Yonge and exonerate them from liability to him, by first obtaining his written consent. The statute says, in effect, that if a settlement was made without his written consent, as it was, the companies are liable to him for his portion of the proceeds.”

In Young v. Renshaw, 102 Mo. App. 173, the St. Louis Court of Appeals very clearly pointed out the nature and character of the cause of action under the provisions of this statute. Bland, J., speaking for the court in that case, said: “Under the provision of the first section of the act, the lien of an attorney attaches when the suit is commenced or service of an answer containing a counterclaim is made. If the attorney and client enter into a contract that the former shall receive a,s compensation for his services, a percentage of the amount recovered or realized, and the attorney serves a written, notice on the defendant or proposed defendant, of the agreement between himself and client, the lien attaches to the matter or cause of action from the date of the service of such notice, although no suit has been commenced, and if the claim is settled by. the client with the defendant or proposed defendant, in disregard of the attorney’s rights, after the defendant has been served with such notice, he will be individually liable to the attorney, as per his contract with his client.”

The cause of action set forth in the statement before the justice of the peace brought it clearly within the provisions of the statute, and the amount sued for was within the jurisdiction of the justice and the justice had jurisdiction to try and determine the cause.

We deem it unnecessary to pursue this subject further. The cases of Young v. Renshaw and Yonge v. Railroad, by the St. Louis Court of Appeals, correctly announce the law as applicable to the lien of an attorney under the act upon which this proceeding is predicated, and they fully meet the approval of this court.

There is no merit in the insistence of appellant that the court erred in its refusal to make a finding of the facts in this cause. In the first place, the bill of exceptions, as shown in the abstract of record, discloses that there were no objections or exceptions preserved to the refusal of this request. Secondly, it is expressly admitted by counsel for appellant in their brief that there was no dispute about the facts; that the proof in this cause establishes the allegations as contained in the statement of the cause of action before the justice of the peace; that being true there was no necessity for a finding of the facts. Under the plain admission of counsel at the close of the evidence in this case there was nothing left except a question of law.

We shall not prolong this opinion to discuss the numerous instructions requested by the defendant and refused by the court. They have had our most careful consideration. There were nineteen instructions requested in this canse; clearly more than there was any necessity for; a practice which has repeatedly met the disapproval of this court. They were all refused with the exception of one, and in our opinion properly so.

We have indicated our views upon the propositions presented by the record in this cause, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    PITKIN, Appellant, v. FLAGG et al.
    Division Two,
    October 17, 1906.
    1. ORDER OF PUBLICATION: Duty of Court. It is not the duty of the court of its own motion to cause an order of publication to be made for defendants who have been returned not found. It is the duty of the plaintiff to ask for such order, and if he does not do so the cause should be dismissed for failure to prosecute.
    2. -: Judgment Against Those Served: No Exceptions. Where there were several persons joined as defendants and charged with a fraud, some of whom are served or notified and the others not, plaintiff cannot on appeal complain that, when his case was dismissed for failure to prosecute, the court did not permit him to take judgment against those served who had not answered, if he at the time saved no exception to the court’s action in that regard, and none to its refusal to order publication for the other defendants.
    3. FAILURE TO PROSECUTE: Dismissal. Where plaintiff shows no diligence to prosecute, his suit should be dismissed for failure to prosecute.
    Appeal from Scotland Circuit Court.— Hon. E. B. McKee, Judge.
    Affirmed.

      J. M. Jayne for appellant.
    (1) It is the duty of the trial court, when a summons has been issued and returned, and the return shows that part of the defendants have not been served, but the officer returns his summons non est, to make an order for publication notifying such defendants as required by law. R. S. 1899, sec. 577. (2) A non est return implies that the officer has made diligent effort to find defendants, and such a return is sufficient to satisfy the court that process cannot be served. State ex rel. v. Finn, 87 Mo. 310; (3) The trial court should have at least given appellant judgment against the defendants who had been personally served with process in du.e time, as this was the second term of court at which this cause was pending. R. S. 1899, sec. 584. (4) When there are several defendants, some of whom do not appear, and are neither notified nor summoned, the appellant may proceed against those wlm have been served, and is entitled to judgment against them at least. R. S. 1899, secs. 582, 583, 584. (5) An order of publication may be granted on unsworn statement of attorney. It is not necessary that there should be an affidavit that some or all of the defendants are nonresidents. If the court is satisfied, that is sufficient. Cruzen v. Stevens, 123 Mo. 337; Winningham v. True-blood, 149 Mo. 572.

      Mudd é Pettingill for respondents.
    (1) Section 583, Revised Statutes 1899, provides that plaintiff may proceed against those who are summoned and dismiss as to the others. Plaintiff did not offer to dismiss as to any defendant, but had he done so it would have been discretionary with the court and such discretion should not be exercised so as to produce injustice. Harris v. Terrell’s Exr., 38 Mo. 421; Keithley v. May, 29 Mo. 220. (2) The case had been in court for a considerable time. The predicament of the plaintiff on which he relied as a sufficient ground to have his case go over to a third term was the result of his own inaction, lack of diligence, and in all probability was designed. The refusal of the court to continue a cause is entitled to 'every intendment in its favor. King v. Pearce, 40 Mo. 222; Blair v. Railroad, 89 Mo. 395.
   GANTT, J.

The plaintiff began this action in the circuit court of Scotland county to set aside a sheriff’s deed. The petition was filed October 18, 1902.

The petition, in short, alleges that plaintiff by reason of being an heir at law of H. G. Pitkin, deceased, is entitled to an undivided one-eighth of all the property of which said H. G. Pitkin died seized. The petition sets forth a description of the real estate, all lying in Scotland county, Missouri. It is then alleged that the defendants, except Flagg, Roberts and Collins, are the other heirs at law of the said H. G. Pitkin, deceased. It is then averred that the defendants connived and conspired to cheat or defraud the plaintiff out of his interest in the said lands as an heir of the said IT. G. Pitkin, deceased, and had his interest in said real estate levied upon by virtue of a pretended execution without any notice to plaintiff, he being the head of the family, of his rights, and without allowing any exemptions from said executions, and that his interest in said lands was advertised for sale, and at said sale defendant W. J. Roberts bid in said lands and received a sheriff’s deed therefor; that said-deed was void and said sale was made by fraud between the defendants. It is then charged that afterwards, the said "W. J. Roberts brought a partition suit to divide said lands and plaintiff and his wife were not made parties thereto. It is then alleged that O. Jerome Flagg purchased a portion of said lands with full knowledge of all the aforesaid facts, whereupon plaintiff asks that the said sheriff’s deed1 be set aside and for naught held. Upon this petition there was no summons issued until the 31st day of December, 1902; on that date a summons was issued against all of the defendants named in the petition directed to the sheriff of Scotland county. At the time of filing his petition plaintiff also filed his Us pendens on the first day of January, 1903.

The sheriff of Scotland county made return of the writ by showing service on Rachel A. Pitkin, the mother of plaintiff and widow of H. Gr. Pitkin, Jesse L. San-bum and Henry Collins, and made a non est as to the rest of the defendants. At that date the circuit court of Scotland county had two regular terms each year, beginning on the first Monday of February and August. At the February term after the service of this writ the defendants Collins and Sanbum filed their answers to the plaintiff’s petition, and at the same term the defendant Rachel A. Pitkin moved the court to require plaintiff to give security for costs and thereupon the plaintiff filed a cost bond, which was approved by the court. At the said February term, at the request of defendant Rachel A. Pitkin, the court advised the plaintiff that unless the defendants were served with process or publication before the next term- of court, the cause would be dismissed for failure to prosecute unless cause should be shown why such service was not had. The cause was then continued to the August term. At the February term plaintiff asked for no orders of publication nor for any writs to Adair and Buchanan counties. At the next term, Mrs. Rachel A. Pitkin, one of the defendants, filed her motion to dismiss the cause on the ground that the plaintiff began his suit October 18, 1902, and filed his Us pendens involving the title to large tracts of real estate owned by the defendants, many of whom are non-residents and whose residences were well known to the plaintiff, and yet the plaintiff had failed and refused to procure service on one-half of the defendants herein, although he had been warned by the court, at the last term of the court, that his action would be dismissed at the present term of the court for further failure to obtain service on the defendants and prosecute his action with diligence. And for the further reason that plaintiff had failed to prosecute his action for the purpose of avoiding a trial at this term and to keep the real estate in his petition described incumbered by the lis pendens filed in the recorder’s office. Thereupon plaintiff filed a motion asking the court for an order for a writ of summons directed to Cora K. Cody and Byron H. Cody, and directed to the sheriff of Buchanan county, and for a further writ of summons against defendants Eva A. Ivie and W. H. Ivie and directed to the sheriff of Adair county, and for an order of publication against the other defendants that had not been served; thereupon the motion to dismiss the cause for failure to prosecute was taken up, considered and sustained over plaintiff’s objections and exceptions. Thereupon plaintiff filed a motion for new trial and to set aside the order dismissing the cause for failure to prosecute. The court announced to the plaintiff and his counsel that he would sustain said motion and grant him a new trial if plaintiff would go to trial at said August term, 1903, of the said court, to which plaintiff refused to consent. And thereupon plaintiff duly saved his objections to the action of the court and brings the matters to this court.

I. Plaintiff now insists that the action of the court in dismissing his cause for failure to prosecute the same should be reversed. His first proposition is that it was the duty of the trial court, under section 577, Revised Statutes 1899, to have made an order of publication as to the non-resident defendants upon the return of the sheriff that they cannot be found in Scotland county. Section 577 provides that when the sheriff makes return that the defendant cannot be found, the court, being first satisfied that process cannot be served, shall make an order of publication as required by section 575. In other words, plaintiff takes the position that it was the duty of the trial court, without any suggestion from him, to look into the return of the sheriff in this case and of its own motion award him an order of publication as to the non-resident defendants. The plaintiff cannot shirk his own duty in this manner. It is not the duty of the judge of the court to examine all the rolls and files in the office of the clerk to see what returns have been made and to make orders of publication without any suggestions from the attorney for the plaintiff. The plaintiff had used no diligence whatever in the first instance to bring the defendants into court. The non-residents were his own relatives, and as alleged in the motion of his mother, he knew of their residence when he filed his suit on the 18th of October, 1902. He did not allege in his petition that they were non-residents, neither did he file an affidavit as to their non-residence; had he done either he could have had an order of publication made by the clerk on the day that he filed the petition and there was ample time for it to have been published before the convening of the February term. There is no sort of merit in his proposition that it was the duty of the court to look after this service for him without his having taken the proper steps himself.

II. He now makes the point also that the trial court should have at least given him judgment against the two defendants who were served, his mother, and another, because they had not filed any answer. Section 583, Revised Statutes 1899, does provide that when there are several defendants, some of whom do not appear, and they are neither notified nor summoned, the plaintiff may proceed against those, if any, who do appear and are summoned or notified, and dismiss his petition as to the others. But it is to be noted in this case plaintiff did not offer to dismiss as to any defendant, but had he done so in this case, it being a bill in equity against all of the heirs, and it being apparent to the court that all of these heirs were necessary parties, it is very doubtful whether the court in the exercise of wise discretion would have permitted him to have dismissed as to all these non-residents and the defendants who had not been served. [Harris v. Terrell’s Exr., 38 Mo. 422; Keithley v. May, 29 Mo. 220.] But it is sufficient answer to all this that the plaintiff took no exceptions to the refusal of the court at the August term, 1903, to order additional writs of sum-moos for resident defendants and its refusal to grant an order of publication as to non-residents, nor did he except to the refusal of the court to enter judgment against Rachel A. and Horace G. Pitkin, and he is therefore in no position to avail himself of section 583.

III. ’Again, plaintiff invokes the decisions of this court that orders of publication may be granted without an affidavit as to non-residents if the court is satisfied that the defendants are non-residents. Granting all this the plaintiff made no effort to obtain an order of publication. He did not attempt to satisfy the court without an affidavit that the defendants were nonresidents. Not only did the plaintiff show no diligence whatever or good faith to bring in the non-resident defendants when he began his suit, and had four months in which to obtain service before the February term, he was evincing no purpose to prosecute this action with any diligence, and the defendant his mother went out of her way to have the court admonish him that he was showing no diligence in the prosecution of his action, and the court then and there at the February term admonished him that unless the defendants were served with process or publication before the August term, the cause would be dismissed for failure to prosecute it unless good cause should be shown to the contrary. With this admonition the defendant took no step, made no request for the order of publication, filed no affidavit, and asked for no alias summons to issue for the defendants living in Adair and Buchanan counties, and permitted the court to adjourn without taking any step whatever to expedite the trial of the cause. Six months then intervened, and when the court convened in August, it appeared that the plaintiff had done nothing, and thereupon the defendant Rachel A. Pit-kin filed her motion calling the court’s attention to the failure of the plaintiff to prosecute his suit and to the fact that he was keeping a lis pendens hanging-over all of these lands, and then for the first time the defendant began to demand writs and orders of publication, which necessarily would have delayed the case until the next February term of the court, and in the meantime the cloud on the title of the defendants would have still hung over them. No excuse or good cause whatever was shown why plaintiff had not obtained his process for the absent defendants, but was simply in another way attempting- to obtain a continuance of the cause.

It is not pretended that any officer of the court failed to do his duty when requested by the plaintiff. It is the policy of the law to grant litigants a speedy trial, and. if ever there was a case when it seems to us that the trial court was justified in dismissing an action because the plaintiff has shown no dilig-ence in his prosecution, it is this one.

We think the trial court was abundantly justified in dismissing- the case under the circumstances, and its judgment is affirmed.

Burgess, P. J., and Fox, J., concur.


author: FOX, J.

text:
    ROWEN v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant.
    Division Two,
    October 17, 1906.
    1. RAILROAD: Gates: Killing Stock. Although the gate constructed by the railroad at a farm crossing may not have conformed to the requirements of the statute, yet unless its negligence in that respect was the proximate cause of the killing of plaintiff's stock which got onto the track, it is not liable. To entitle plaintiff to recover in such case it must appear, not only that the railroad was negligent in failing to erect and maintain a gate auch as is required by the statute, but also that the Injury to his stock was the result of such failure.
    2. -: -: --: Left Open by Some One. Where the evidence clearly shows that the gate was left open by some one, without the consent or knowledge of the railroad, and because of that fact the stock got upon the track and were killed by passing trains, the railroad is not liable, whether the gate was constructed in the way the statute requires or not.
    Transferred from Kansas City Court of Appeals.
    Reversed.

      Kelso, Schooler S Kelso for appellant.
    (1) Instruction 1 for plaintiff is misleading, does not declare the law, and was not based upon the evidence. It proceeds entirely upon the theory that the company is liable unless it maintained a gate at the alleged farm crossing, fastened by a latch or hook. It entirely ignored the fact that although the gate (as the testimony showed) was hung on a cleat and fastened by being slid between two posts, yet was equally as secure as if fastened with hook or latch. In fact, this instruction, which was the only one given for plaintiff in relation to the gate, is not justified by the evidence in the case; it is too narrowit did not submit the issues made by the pleadings and the evidence, in that the evidence showed that the gate was open, and further tended to show that the gate was left open by plaintiff’s hired man. The instruction was silent as to these facts. Again, there was no evidence whatever to the effect that it was by reason of the defective fastenings upon the gate the stock escaped upon the track and were killed, but, upon the contrary, the entire evidence points to the fact that the gate was opened and left open by some person, and by reason of that fact the stock escaped through said gate upon the track of defendant and were killed. The instruction is a mere abstraction and not predicated upon the evidence and should not have been given. Pairgrieve v. Moberly, 29 Mo. App. 155; Zwisler v. Storts, 30 Mo. App. 175; Bradley v. Railroad, 138 Mo. 307. (2) Counsel for defendant do not contend that the gate in controversy was fastened with a hook or latch, but do insist that, under the law as construed and defined by both the Supreme Court and the Courts of Appeals in this State, it was not necessary and requisite that it should have been so hung on hinges or fastened with hook or latch in order to constitute it a lawful gate. Harrington v. Railroad, 71 Mo. 384; Pitterlihg v. Railroad, 79 Mo. 504; Ridenore v. Railroad, 81 Mo. 227; Binicker v. Railroad, 83 Mo. 660; Nicholson v. Railroad, 55 Mo. App. 593; Clardy v. Railroad, 73 Mo. 576; Kavanaugh v. Railroad, 163 Mo. 54. No other conclusion can possibly be reached than that the trial court erred in refusing defendant’s second instruction, unless the court adopts the theory of the plaintiff, that is, that the statute requiring railroad companies to fasten their gates with hooks and latches is mandatory — is penal, and no excuse can be shown as a defense. Such is not the law now, and never was in this State. The contrary has been repeatedly held. Harrington v. Railroad, 71 Mo. 384; Kavanaugh v. Railroad, 163 Mo. 54; Clardy v. Railroad, 73 Mo. 576; Binicker v. Railroad, 83 Mo. 660; -Kavanaugh, v. Railroad, 163 Mo.' 54. Negligence will not be imputed to defendant for failure to discover that the gate was opened during the night. Box v. Railroad, 58 Mo. App. 359; Vineyard v. Railroad, 80 Mo. 92; Binicker v. Railroad, 83 Mo. 663.

      Ling enfetter & Hudson for. respondent.
    (1) The late case of Kavanaugh v. Railroad, 163 Mo. 54, cited by appellant, merits some consideration. Respondent maintains that the Kavanaugh case is not decisive of the ease at bar. In that case the gate was placed in the fence as a. part of the panel thereof the same year the road was constructed and during the year the accident occurred, and it was not claimed by the plaintiff in that case that the gate was in any way defective, except that it was large and unwieldy, to which the land-owner made no objections at the time it was placed in the fence. The proximate cause of the injury in that case, as the court well said, was the fact that the gate was left open. In the case at bar the undisputed testimony is, that the gate was erected in the year 1886 or 1887, some ten or eleven years prior to the accident, and had never been repaired; that it was loosely constructed and old and dilapidated and rested on the ground at one end and was considerably sagged. Its defective condition was unquestionably the approximate cause of the injury. Charley Graham, witness for plaintiff, testified as follows: “Q. Now what do you say about a horse catching his foot in .the gate? Would he be able to- open it by pulling backward? A. I have opened the gate enough to believe that a horse could have opened it as easily as I can. Q. Explain how it could be opened by a horse? A. Well, if a horse got its foot fast in front of the brace and pulls backward it would fasten its foot in such a manner as to give it sufficient purchase to open it. ” A defective gate would be more likely to be opened by the horse, or be blown open by the wind, or left open by third parties, than one .in compliance with the law. The negligence of the defendant in not making a lawful gate was therefore the proximate cause of the injury. (2) No notice in this case was required, as its defective condition was co-existent with its construction, or at least its defective condition had continued a sufficient length of time to impute notice. Duncan v. Railroad, 91 Mo. 67; Kavanaugh v. Railroad, 161 Mo. '54.
   FOX, J.

This cause was certified to this court by the Kansas City Court of Appeals, for the reason that the conclusions reached and announced by a written opinion are in conflict with a decision by the St. Louis Court of Appeals in the case of Kavanaugh v. Railroad, 75 Mo. App. 78, which was also certified to this-court because one of the judges held that the ruling of the majority was in conflict with prior decisions of that court. This cause reached the Kansas City Court of Appeals by appeal on the part of the defendant from a judgment in the circuit court of Worth county in favor of plaintiff. The opinion announced by the Kansas City Court of Appeals was by Broaddus, J., in which the entire court concurred. It is apparent therefore that had it not been for the Kavanaugh case decided by the St. Louis Court of Appeals, which was afterwards certified to this court and decided by this court, 163 Mo. 54, the present controversy would in all probability have never reached this court. It is here and the record is before us for consideration.

OPINION.-

We have carefully examined the evidence in detail .as developed at the trial of this cause, and find that the statement of the controlling facts as made by the learned judge of the Kansas City Court of Appeals is substantially correct; therefore the solution of this controversy must be sought in the consideration of the correctness of the conclusions reached and announced by the Kansas City Court of Appeals upon the state of facts disclosed by the record. The opinion in full of Judge Broaddijs was as follows:

“The" finding of the jury and judgment thereon was for the plaintiff and defendant appealed.
“The suit is for the killing of plaintiff’s horses on defendant’s tracks, they having escaped from plaintiff’s enclosed premises through a gate at a farm crossing. There is no dispute as to those facts. It is shown by all the evidence that the track of defendant runs through plaintiff’s land and that the same is fenced; that at the point where the plaintiff’s horses escaped from his premises, the defendant had erected a gate for his use in crossing its track, as his farm was situated on both sides of said track; and that said gate was not a statutory gate, not being hung and fastened in the manner required by statute, but otherwise a,s to construction was a proper gate. The gate In controversy was not hung on hinges or fastened by hooks or latches, but was suspended at one end upon a cleat which was attached to two upright posts set up in the ground, and was secured by shoving the other end between two other upright posts. There is little or no controversy about the character of the gate except that some of the witnesses state that the gate was old and somewhat dilapidated — others, that it was substantially a good gate. The horses were killed during' the night of November 4, 1897. In the evening prior, about five o’clock, the gate was closed. When Corbett and other witnesses were informed that stock were on the track they went to the place about eleven or twelve o ’clock of the night mentioned, saw the stock that had been injured and found the gate wide open.
“The witnesses generally agree that the gate as constructed did not easily open and shut — and judging from a description of the gate such must have been the fact. The proper way to open said gate was to slide it back over the cleat until its weight was about equally divided on each side of the cleat and then it could be easily opened or shut. These undeniable facts conclusively show that the horses did not open the gate in the manner it was found by the witnesses. There was. an attempt to show that the gate was not closed on the evening preceding the killing of the stock, or that the gate was not securely fastened.
“The physical facts as well as the testimony of witnesses show that the gate was intentionally opened by some person, and left open.
“Certainly, the gate as constructed and hung was not such as the statute required. Under the statute in question, for failure upon the part of railroads to erect and maintain the required fences and gates they are liable for all damages ‘which shall be done by its agents, engines or cars to horses, etc., occasioned by the failure to construct and maintain fences’ (which also includes gates).
“The facts in this case are very much like those in Kavanaugh v. Railroad, 75 Mo. App. 78, except in that case the gate was secured by hook and staple, and the court came to the conclusion that the gates (there were two gates in that case) must have been opened by some person passing through during the night, and upheld the finding of the trial court, which was for the plaintiff.
“In the case of Morrison v. Railroad, 27 Mo. App. 418, the facts were greatly different. There it was shown that the gate was made of wire and boards and one of the posts had entirely rotted off, so that the gate was suspended by the wires and planks, and it had no latch or other fastenings. The only way it would open and shut was hy lifting up. the gate and post and placing it in position. ‘ This was so troublesome to persons passing through, that the result was that the gate, as a rule, stood open; and the plaintiff kept his horses up to avoid their escaping through this gate onto the railroad track. This gate had been in this condition for two or three months prior to the injury complained of. ’ Judge Philips, who delivered the opinion of the court, refers to the case of Ridenore v. Railroad, 81 Mo. 227, and distinguishing that one from the one he was considering, uses the following language: ‘But the chief difficulty, in my mind, is as to one element of fact in the case at bar, which distinguishes it, in a marked degree, from all others to which attention has been directed.’ He then states facts as given above. The case was for negligence under the statute for carelessly and negligently suffering the gate to be left out of repair. The court found that by reason of the defective condition of the gate, ‘it was habitually left open,’ ‘as a rule was left open.’
“In McMillan v. Railroad, 70 Mo. App. 568, the gate in controversy was hung on hinges and secured by a hook which fitted into a loop1 made by a wire twisted around the post. The fastening of the gate had a play of two or three inches up and down. The gate would fly open by force of the wind or other slight pressure. Judge Smith in delivering the opinion of the court showed the similarity of that case to that of Freet v. Railroad, 63 Mo. App. loc. cit. 554, and makes this significant statement: ‘Indeed, there is but one conclusion to be drawn from the evidence, and that is that the gate got open for want of sufficient fastening. ’
“In Freet v. Railroad, supra, Judge Smith also delivered the opinion of the court, and in commenting on the gate in question, said: ‘The gate was old and greatly out of repair. One of the posts and a hinge of the gate were loose. The appliances for fastening the gate were a hook and staple, but these could not be used on account of the condition of the post on each side of the gate. The defendant knew of the insecure condition of the gate. Its section man, who passed along every day, saw its condition of insecurity. He furnished a piece of wire which was used by him in fastening the gate.’ He concluded that the gate came open as a result of the insecure fastening.
“In Duncan v. Railroad, 91 Mo. 67, the evidence was similar to that in the case of Morrison v. Railroad, supra. The gate in question there had no kind of fastening at any time. Sometimes it was fastened with a rail or sticks, but neither would prevent it from being blown open by the wind. The natural inference was that it got open because it had no fastening.
“We can find but one cause in all the books parallel with the one at bar, and that is Kavanaugh v. Railroad, supra, which has been certified to the Supreme Court of the State because one of the judges held that the ruling of the majority-was in conflict with prior decisions of said court.
“We do not think the true rule has been laid down in that case, and it is not sustained upon either principle or precedent.
“It appears to us that the conclusion of the court therein is founded alone upon theory and not upon evidence, and as such has been condemned. [See Fitterling v. Railroad, 79 Mo. 509; Rothwell v. Railroad, 59 Iowa 192.]
“The concluson of the judge who delivered the opinion of the court that because the gate in question was a sliding gate; that it was securely fastened the evening preceding the night of the injury; and that it was opened and left opened by some person during the night, but that it would not have been so left open if it had not been the kind of gate described, but a statutory gate, we believe is founded upon theory only, and is not necessarily deducible from the facts of the case. The person who opened and left open the gate may or may not have closed it if it had been any other kind of gate.
“The additional facts that the crossing was used by persons in the neighborhood, and that section men and tramps were in the habit of going through the gate do not help the conclusion to any great extent. It was a mere theoretical possibility.
“In the case at bar the gate was found wide open just after the injury. The person who' took the trouble to open it to its fullest extent may have been more inclined to have shut it if it had been a statutory gate, but it is not a necessary inference that he or she would have done so. And this is all the case has to stand on.
‘ ‘ The gate in question had never previously to the injury complained of been found open, and there had been no complaint that it was insecure. It does not appear that the injury in this case was caused by the failure of the defendant to erect and maintain the required gate, but was the direct result of the wrongful act of some persons without defendant’s knowledge and consent, leaving the gate open, through which plaintiff’s horses escaped onto defendant’s track and were killed. [Ridenore v. Railroad, 81 Mo. 227.]
“It follows, therefore, that defendant’s first instruction which was a demurrer1 to plaintiff’s case, should have been given. The conclusion arrived at dispenses wdth the necessity of deciding whether the court committed error in overruling defendant’s motion for a continuance. The cause is reversed.

All concur.

“Certified to the Supreme Court.”

The Kavanaugh case, criticised in the foregoing opinion, was subsequently decided by this court and the conclusions reached by this court are in harmony with the views expressed by the Kansas City Court of Appeals.

Learned counsel for respondent insist that the proximate cause of accident was the defective gate and on account of the negligence of the defendant in failing to construct a gate in conformity to the statute plaintiff was entitled to recover, and the judgment should be affirmed.

To entitle plaintiff to recover in this action it must first appear that defendant was negligent in failing to erect and maintain á gate as-provided by the statute, and, secondly, that the injury to plaintiff’s stock was the result of such negligence. It may be that the gate did not conform to the requirements of the statute; yet unless such negligence was the proximate cause of the accident there can be no recovery.

There is an entire absence of evidence to show that plaintiff’s stock strayed upon defendant’s right of way by reason óf a defective gate, nor is there sufficient evidence to authorize the court or jury in making a fair and legitimate inference that such defective gate was the cause of the accident. But the reverse is indicated by the testimony of the witnesses, as well as the physical facts, that the gate was opened by some person and left open and by this means the accident occurred. As was said by this court in the Kavanaugh case: “So long as the gate remained shut and fastened, the gate was sufficient and plaintiffs’ cows were secure. But when the -gate was left open in manner as aforesaid, then it became wholly immaterial whether or1 not the gate was so constructed as to be ‘easily opened and shut,’ because, being left open, the method of its construction was not, and could not be-, the proximate cause of the injury; the opening was that cause. ’ ’

Upon the facts as disclosed by the record in this cause the conclusions reached by the Kansas City Court of Appeals were clearly correct. Entertaining the views as herein indicated, the judgment of the -circuit court should be reversed, and it is so ordered.

All concur.