author: BROWN, J. FEEEISS, J.

text:
    THE STATE ex rel. HARRY V. DEEMS et al. v. CHARLES W. HOLTCAMP, Judge of Probate, and AUGUSTUS ROSS, Administrator of Estate of ANNA DEEMS ROSS.
    In Banc,
    November 14, 1912.
    1. JURISDICTION: Things Essential. To acquire jurisdiction a court must (1) possess the power to determine the general class of cases to which the one it is attempting to adjudicate belongs; (2) when its judgment will affect title to particular property it is generally necessary that such property be situated within the territorial jurisdiction of the court; and (3) the court by its process or by their voluntary appearance must acquire jurisdiction over the persons whose rights will be affected by its judgment.
    2. --: Probate Courts: Sale of Lands. Probate courts by the Constitution are given express jurisdiction over the sale of lands by administrators.
    3. ADMINISTRATION: Sale of Real Estate: No Debts. Sections 147 and 148-, R. S. 1909, authorize a sale of incumbered real estate even though there be no general creditors. The probate court has the power to direct the sale of mortgaged real estate upon a finding that such sale will “promote the interest of the estate and not be prejudicial to creditors.” And by “estate” is meant heirs, devisees or legatees.

      4. -: -: Substitute for Partition: Fees and Commissions. But a sale of real estate “to promote the interest of the estate” is not intended to be a substitute for an action of partition, nor to afford an excuse for making fees or commissions of administrators.
    5. -: --: No Personal Estate. Where there is no personal estate, a sale of decedent’s incumbered land, “to promote the interest of the estate,” cannot be made, unless it becomes necessary to sell it in order to pay decedent’s debts.
    6. -: -: Unprobated Claim: Mortgage Debts.. To pay unprobated claims or debts due mortgagees, the administrator, in order to sell decedent’s real estate, must proceed under Secs. 150, 151 and 152, R. S. 1909, and give the notice required by Sec. 152. [FERRISS and KENNISH, JJ., dissenting.]
    7. -:-: Partition: Prohibition: Jurisdiction: Appeal. An administrator, though he be an heir of decedent, cannot have the incumbered land sold to prevent partition and to eat up the equities of redemption in fees and commissions. But the statutes (Secs. 147 and 148, R. S. 1909) authorize a sale of incumbered real estate, even though there 'be no general creditors, upen finding by the probate court that such sale will- “promote the interest of the estate and not be prejudicial to the creditors; ” and as any error in the propriety of such an order may be corrected on appeal, it should not be prohibited by a writ of prohibition from exercising its jurisdiction in the matter, if jurisdiction has been otherwise acquired.
    8. DUE PROCESS OF LAW: Notice. The Constitution ordains that no person shall be deprived of property without due process of law; and due process of law implies notice and an opportunity to be heard in defense of one’s rights; and an equity of redemption in incumbered real estate is property.
    9. ADMINISTRATION: Sale of Incumbered Real Estate: Notice: Jurisdiction. The probate court has no jurisdiction, under Secs. 147 and 148, R. S. 1909, without, notice to the heirs, to order the sale of incumbered real estate upon a finding -that such sale will “promote the interest of the estate and not be prejudicial to creditors;” and will be prohibited from attempting to order such a sale, when no notice has been given to the heirs.

      Held, by FERRISS, J., dissenting, with whom KENNISH, J., concurs, that Secs. 147 and 149, R. S. 1909, do not require any notice to the heirs, but authorize the probate court, upon a finding that the sale of incumbered real estate will promote the interest of the estate and not be prejudicial to creditors,1 to order said real estate to be sold, and the probate court has jurisdiction to order such a sale, without notice to heirs, and if it errs in its findings the error can be corrected on appeal, and no writ of prohibition should go to prohibit it from exercising that jurisdiction.

      Held, also, that it is apparent that the Legislature did not intend to restrict the power conferred by Secs. 147 and 148, R. S. 1909, and the cognate sections 142 and 148, upon probate courts to sell incumbered real estate, with the requirements for notice, appraisement, filing of accounts, etc., designated by Sec. 152 in case real estate is to be sold to pay debts, but intended to invest the probate court with power to order the sale of the equity of redemption in real estate, free from the restrictions as to notice, etc.
    10'. -:-- — : Character of Notice. Nor is it necessary to determine what kind of notice will be sufficient under Secs. 148 and 149, R. S. 1909, where no notice at all has been given.
    11. -: -:: Appearance:. Special. Where the law requires a qotice to the heirs and none is given, the probate court does not acquire jurisdiction over them by the fact that they appear and object to any order relating to the sale of the property, where they appear specially for the sole -purpose of objecting to the jurisdiction.
    Prohibition.
    Writ allowed.

      Hiram N. Moore and Richard F. Ralph for relators.
    (1) The petition of Augustus Ross, administrator, as filed in the probate court, is in such form that it is difficult to tell whether he asks the sale to pay indebtedness against the estate, or whether he seeks to obtain the sale by virtue of the provisions of Sec. 147, R. S. 1909. If the former, the court is clearly without jurisdiction to order the sale; first, for the reason that there are no debts proven against the estate, remaining unpaid; and second, because no notice has been given or publication had, as is required by statute. R. S. 1909, Secs. 150, 151, 152; Church v. Mc-Elhinney, 61 Mo.. 540; Valle v. Fleming, 19 Mo. 454; Hutchinson v. Shelley, 133 Mo. 400; Taverbangh v. Hawkins, 82 Mo. 183; Day v. Graham, 97 Mo. 402; Patee v. Mowrey, 59 Mo. 161. (2) If respondents rely upon section 147 to justify their action, the order of the court, authorizing the sale is nevertheless void. Section 147 provides that where a person dies leaving land encumbered by deed of trust or lien, or owning any equity of redemption, or leaving mortgaged or pledged personal property, and shall not have devised the same or provided for redemption thereof by will, the court shall have power “if in its judgment it will promote the interest of the estate and not be prejudi- ■ cial to creditors, ’ ’ to order the executor to redeem the same out of the personal assets of the estate, “or to order the sale of other real estate to redeem such land or personal property so encumbered.” The Legislature intended by this section to authorize the probate court, for the protection of the estate and creditors to order the sale of property that is clear when it becomes necessary to do so, in order to save some particular piece of property from being sacrificed. In other words, that if one particular piece of property is mortgaged and that mortgage is about to be foreclosed under, such conditions that the property would be sacrificed, then he may, in his discretion, provided the good of the estate or the protection of creditors demanded, order other property either encumbered or sold. Such intent is clear from the very wording of the statute. The statute first treats of mortgaged property,. and then for its protection under certain circumstances, authorizes the sale of other property. In this case there is no such other property as is contemplated by the statute. In other words, each and every piece comprising the entire estate of the deceased, is mortgaged and there is no other property that can be either sold or mortgaged in order to make redemption. A sale under such circumstances would simply mean the conversion of the assets of the estate from real estate holdings to cash, and the expenditure of that cash, by reason of which the administrator would be entitled to a large fee at the expense of the heirs. This property is computed to be worth from fifty to sixty thousand dollars. If converted into cash and disbursed by him, as is contemplated, his fee, at the regular per cent allowed administrators, would amount to from $2500 to $3000. The order of sale as made by the probate court is a sweeping order for the sale of the entire estate. The time to file claims against the estate has long since expired. No claim has been filed save that of Ross, which was disallowed. There are no debts against the estate and will be none, save and except that Ross prevails on his appeal to the circuit court; therefore it is apparent that the real purpose ®f the administrator in seeking the sale was not to redeem property, not to pay debts, but to provide a fund from which, in the event he did prevail in the circuit court, his claim could be satisfied. In addition thereto he would be entitled to a large fee, to which he is not now entitled, and would possibly discharge his individual liabilities on several notes, which otherwise might stand against him. Where, as in the case at bar, the entire assets of an estate are composed of several pieces of real estate, each and every one of which are incumbered, the administrator may sell, under proper order, such part or parts of the estate to pay debts or for the purpose of redemption, as may be necessary. For these purposes, and none other, may he sell the real estate. If, as in this case, the purpose is not to redeem or to pay debts, then such an order as was made by the probate court, of which we complain, was in excess of the court’s jurisdiction, and therefore a usurpation of power by the court, and any acts of the administrator thereunder would be illegal as well. The fact that the incumbrances on the several properties had matured, or were about to do so, would not devolve the duty upon the administrator to sell all the properties or any one of them for the sole purpose of preventing a sale or sales under the incumbrances, and consequent loss, maybe, to the heirs. This was a matter to be anticipated by the heirs themselves, and it was for them, and not for the administrator, to protect them against possible loss.

      Christian F. Schneider for respondents.
    (1) The sole and only question presented by the issues in this proceeding is, “Was the order of sale made by the probate court null and void; that is to say, does a proceeding to sell the equities of redemption, where the estate has no other property out of which to pay the incumbrances on the property.- require the proceedings necessary under Sec. 150, R. S. 1909? We respectfully represent that it does not) Garrett v. Bucknell, 64 Mo. 407. In that case a sale was made under section four (Wagn. Stat. 94), which is Sec. 147, R. S. 1909, and which is connected with and must be read with section 148, under which respondents claim said order of sale was made. But relators say the property is worth $50,000 to $60,000, and that the administrator expects to make his administrator’s fee on its-disbursements of $2500 and $3000, “and would possibly discharge his individual liabili-' ties on several notes, which might otherwise stand against him,” but which notes the record shows total only $10,500 exclusive of interest. Neither of these inconsistent contentions is correct. Two of - the five tracts have been foreclosed under the deeds of trust on them and only the.sum of $257.50 realized therefrom. This proves that a foreclosure sale under the deeds of trust would surely result in a sacrifice, and that it would be to the best interest of the. estate and all concerned therein to make a sale of the equities in which the purchasers would have time and could arrange for renewal loans without the depressing effects •of foreclosure advertisements going on. (2) Relators •contend that notices should have been served on the heirs, an order made and the matter then continued to the next term as. required when land is sold under section 150. This, under the exigencies of the case, was impracticable. The holders of the notes and deeds of trust were not obliged to wait. They could have foreclosed on advertising the sales for twenty days, long before the proceedings could have been had under Sec. 150, R. S. 1909. But the order was not made without notice to relators. They had actual notice and knowledge. Their motion to dismiss was filed July 11, 1911,. the day after the administrator’s petition was filed, and both the motion and the petition were continued by the court to the September Term, 1911, and they were in court, and on the day the order of sale was made the court inquired of relators if it were not a fact that there was imminent danger of the property being sacrificed and offering to hear testimony on that point, but that relators refused and stood on their motion to dismiss.
   BROWN, J.

— Relators petition for a writ of prohibition against the respondents on the ground that the probate court is proceeding without jurisdiction in the matter related below. The following facts appear from the petition and return thereto:

A-rrna Deems Ross died intestate, without issue, in the city of St. Louis, in April, 1909. At the time of her death she owned five parcels of real estate in that city, each one of which was incumbered by a deed of trust to secure certain promissory notes executed by her jointly with her husband.' In April, 1909, letters <of administration on her estate were granted to Augustus Ross, her husband. She left as collateral heirs the relators, Harry W. Deems and Laura V. Deems. Subsequently, August Ross presented a claim for about $3000 against tbe estate, which, after due hearing, was disallowed in October, 1911, and an appeal taken to the circuit court, where it is now pending. No other claims are shown to have existed against the estate. On June 30, 1911, the respondent judge, on a petition filed by the administrator, entered an order of record directing the administrator to take possession and manage said real estate; which order was made under the provisions of the Act of 1911, known as section 139a, Laws 1911, page 80, the same being* an amendment to Art. 6 of Oh. 2, R. S'. 1909, and which reads as follows:

“Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation, that the decedent died possessed of real estate in the State, and his heirs or legatees have failed to take charge of same, or the identity or whereabouts of such heirs or legatees are unknown, then the court or judge in vacation may on its or his own motion, or that of any party interested, direct the administrator or executor in charge of said estate, to take charge and manage the real estate, until such time as such heirs or legatees shall appear and petition the court to turn the management of said real estate over to them, or until the same shall escheat to the State as is provided by the ‘Escheat Act.’ ”

The administrator is in charge of the real estate under said order. On the 10th day of July, 1911, said administrator, while his claim for allowance was pending in the probate court, filed in said court a petition in which he alleged that all of said real estate was incumbered with deeds of trust as aforesaid, and also with liens for taxes, and that the holders of the deeds of trust were threatening to sell under same; that if the equities should be sold under favorable conditions they would bring an amount considerably larger than could be realized at sale under the deeds of trust; that Ms claim for $3004.28 was pending in said probate court, and that tbe personal assets were practically, valueless, the petition concluding with the following prayer:

“Inasmuch as there are no assets to redeem such real estate, the petitioner prays that the court shall make an order that all the right, title and interest of the decedent and her estate to such property, or so much thereof as the court shall determine, be sold at private or public sale, as the court in its judgment may determine.”

This petition was not accompamed by an account of the administration, nor by a list of debts due to and owing by deceased and remaining unpaid, nor was notice given to the heirs, relators herein, as required by Sec. 152, E. S. 1909.

Thereafter, on July 11, 1911, these relators appeared specially in the probate court and filed the following motion verified by affidavit:

“Now, at this day comes Harry W. Deems and Mrs. Laura Y. Deems, and, appearing for the purpose of this motion only give the court to be informed and understand that they are heirs at law of Anna Deems Eoss, deceased, and as such heirs, are entitled to distributive shares of the estate of said Anna Deems Eoss. That on Monday, January 10, 1911, one Augustus Eoss, administrator of the estate of Anna Deems Eoss, deceased, applied to this honorable court for an order to sell certain real estate in his petition described, and that such petition was not accompanied by a true account of said Augustus Boss’s administration nor accompanied by a list of debts due to and by the deceased and remaining unpaid, or an inventory of the remaining personal property, together with its appraised value, or of any other assets in Ms hands. That no notice has been given to the persons interested in said estate, and particularly this petitioner, of the filing of such petition, nor have they been given until the first day of the next term of this court to show cause why such an order should not he made, nor has any such notice been published for four weeks in any newspaper in the city of St. Louis, nor has such notice been published by ten hand bills placed in ten public places in said city.
“Wherefore, petitioners say that this court is without jurisdiction to hear and determine the petition of said Augustus Ross, filed as aforesaid, and pray that the same may be dismissed.”

This motion was continued by the court to the next September term, at which term the court stated to counsel for relators that evidence would be heard, if offered, as to the imminent danger of a sale under the deeds of trust; but no such evidence was offered, relators electing to stand on their plea to the jurisdiction. On October, 1911, the probate court, being of the opinion that the application was under Secs. 147 and 148, R. S. 1909, entered the following order:

“Now at this day, the court being fully advised of and concerning the petition of Augustus Ross, administrator of the estate of Anna D. Ross, deceased, for an order of sale of all the right, title and interest of said deceased of, in and to certain real estate in said petition described heretofore, to-wit, on the 15th day of September, 1911, submitted and taken under advisement and it appearing that said real estate is incumbered by certain deeds of trust and liens in said petition described, that said deceased died without having devised said real estate or providing for the redemption thereof by will or otherwise, and that there would not be sufficient assets in the hands of said administrator to redeem said real estate after payment of the debts due by said estate, it is therefore ordered that the said administrator do, on such day as he may select, at the eastern front door of the court house of the city of St. Louis, and during the session of the circuit or probate court of said city, between the hours. of ten o’clock in the forenoon and five o’clock in the afternoon of that day, expose to sale at public vendue or outcry, all the right, title and interest of said deceased of, in and to the following described real estate, to-wit [describing the same], and sell the same for the purpose in said petition mentioned, -for cash, with leave to sell the same at private sale, for cash, first having the same appraised, and if sold at public sale, notice of the time, terms and place of said sale to be published for four weeks prior thereto in some newspaper in the city of St. Louis, as directed by law, and that he make a full report of his proceedings within ten days after such sale.”

It further appears that there are no debts proven against the estate, and no creditors except said administrator, whose claim has since the filing of his petition for an order of sale been disallowed by the probate court, and, as stated above, is now pending on appeal in the circuit court. It also appears that since the institution of this proceeding one of the parcels of real estate has been sold under foreclosure of the deed of trust thereon.

On July 13, 1911, the relators filed a suit in the circuit court to partition the real estate involved herein, which suit is now pending. The respondent Ross charges that this partition suit was filed in order to oust the probate court of jurisdiction, and to defeat him in the collection of his claim for $3004, if it should be allowed in the pending appeal in the circuit court.

Respondents'Holtcamp, judge, and Ross, administrator, each filed a return conceding the facts substantially as stated above, both alleging that the order of sale is based on Secs, 147 and 148, R. S. 1909.

There is no important dispute about the facts. The relators claim that if it is intended as a proceeding to pay debts it is invalid, because there are no debts, and no notice was, given as required, by the statute, and because none of the provisions of the statute in that regard were complied with. Relators further contend that the proceedings cannot be justified under the provisions of section 147, .which provides for the redemption of mortgaged real estate out of the personal assets or by the sale of other real estate. They further contend that the order to sell cannot be justified under the provisions of section 148, supra, and urge as reasons that under our system real estate descends directly to the heirs, and the administrator has nothing to do with it except that, first, he may take charge of and preserve it until the heirs apply to the court for permission to do so; second, that if there are debts, he may sell for the purpose of paying them.

OPINION.

Upon the foregoing facts, has the probate court of St. Louis City power to cause the real estate of. Anna Deems Ross to be sold by the administrator of her estate?

The power of this court to prevent all inferior courts from exceeding their jurisdiction by the writ of prohibition is not denied; but it is contended that the respondent court is not exceeding its jurisdiction in the proceedings set out in relator’s petition.

To acquire jurisdiction a court must (1) possess the power to determine the general class of cases to which the one belongs which it is attempting to adjudicate; (2) when its judgment, as in this case, will affect the title to particular property it is generally necessary that such property be situated within the territorial jurisdiction of the court; and (3) the court must by its process or by voluntary appearance acquire jurisdiction over the persons whose rights will be affected by its decree.

It cannot be denied that probate courts are, by Sec. 34, Art. 6, of-our Constitution, given express jurisdiction over “the sale of lands by administrators.”

I. It is admitted that the land sought to be sold is in St. Louis City. This leaves for our determination only the first and third propositions above noted. In other words, has the General Assembly authorized probate courts to order the sale of real estate upon the facts presented in this case?

II. It is not necessary to consider the alleged indebtedness of the estate of Anna Deems Ross to the administrator (which indebtedness had not been finally ■established when this proceeding was instituted), for the reason that Secs. 147 and 148, E. 'S. 1909 (under which the probate court is proceeding), authorize a sale of incumbered real estate even though there be no general creditors. To direct such a sale as the probate court of St. Louis City has ordered, it seems to be only necessary for it to find that such sale will '“promote the interest of the estate and not be prejudicial to creditors.” If there are no creditors, then of course the sale could not prejudice them.

The phraseology of the statute, sections 147 and 148, supra,, clearly indicates that the sale to be made thereunder is not for the benefit of the party holding a mortgage or other incumbrance, but to “promote the interest of the estate;” that is, the parties entitled to the estate as heirs, legatees or devisees; so that in a proper case, after acquiring jurisdiction of the parties entitled to be heard, or whose interests will be affected by the intended sale, probate courts may order the sale of incumbered real estate of deceased persons.

Such sales, however, are not intended as a substitute for the action of partition, nor to afford an excuse for making fees or commissions for administrators. In the case before us there is no personal estate to be “promoted,” and the incumbered lands-belong to the heirs unless it be found necessary to sell them to pay the alleged' debt of the administrator.

If the sale is being made, to pay tbe unprobatecl claim of tbe administrator or tbe debts due the incumbrancers, then clearly tbe administrator must proceed under Sees. 150', 151 and 152, R. S. 1909, and give tbe notice required by tbe latter section.

Under tbe facts in tbe case before us it is apparent that the administrator is proceeding with tbe sale of tbe real estate of deceased, not to “promote tbe interest of tbe estate,” nor of tbe relators as heirs thereto, but to prevent mutual or judicial partition among tbe heirs and as nearly as possible to eat up in fees and commissions all tbe equities that may exist in favor of tbe heirs. Estates are not supposed to be administered for tbe sole benefit of administrators; but on tbe contrary, they must be so administered as to promote in tbe highest possible degree tbe welfare of tbe heirs, legatees, devisees and creditors.

Courts take judicial notice that a very large per cent of tbe lands of 'this commonwealth and some of tbe most valuable thereof,- are incumbered for some amount, either great or small, and if such property is to be sold by administrators without giving tbe heirs an opportunity to partition tbe same among themselves and then pay off or assume tbe incumbrances (as may suit their convenience) many hardships and losses are likely to be sustained by persons who inherit incumbered property.

Tbe right of persons who have inherited real estate to partition tbe same among themselves is a very valuable privilege, and it cannot be successfully contended that a sale by tbe administrator which would destroy that right, would in any manner “promote tbe welfare” of tbe heirs.

In tbe instant case, tbe administrator seems to be an heir of bis wife, but in many cases administrators have no interest in tbe real estate of tbe person whose estate they are administering, and tbe fact that they. are ordinarily not entitled to commissions on tbe real «estate unless they sell the same, would be a strong incentive to them to sell the real estate in order to increase their .fees. [Sec. 229, R. S. 1909.]

There is nothing in Secs. 147 and 148, R. S. 1909, indicating a legislative intent to repeal or modify the partition statute. There is no showing made why the lands of Anna Deems Ross cannot be partitioned in hind among her heirs; and there being a suit now pending for that purpose, we find nothing to justify the probate court of St. Louis City in making the order of sale it did make.

However, as the respondent court possessed the necessary power to determine for itself the propriety of making the order of sale and as its error can be corrected upon appeal, it should not on account of matters stated in this paragraph be prohibited from exercising its statutory jurisdiction in the matter.

This court will not undertake to prohibit a trial court from deciding a case incorrectly when such trial court has jurisdiction, but will review the error on appeal. What we have said in this paragraph about the invalidity of the order of sale is in a certain sense premature, but seems to be called for by the demand of the parties that the statutes under which respondents are proceeding be construed.

III. The assumed right of the respondent to order a sale of the real estate of Anna Deems Ross, without the service of process or notice of any kind to her heirs, raises a more serious issue.

We are aware that a somewhat similar sale was upheld by this court in Garrett v. Bicknell, 64 Mo. 404; but the objection to the administrator’s deed in that case was mainly on the ground that no petition was presented to the probate court asking that the sale be made, and the deed in that case was not assailed on thé ground that there was no notice to the heirs. Courts usually do not pass upon issues which are not specifically called to their attention. [Howard v. Brown, 197 Mo. 36, l. c. 45.] The lack of notice to the heirs was not called to the court’s attention in the Garrett case, supra, and therefore the opinion in that case is not authority upon the issue now under consideration.

The right of heirs to redeem the lands of their ancestors from incumbrances, the right to partition such incumbered lands among themselves, not to speak of the right to use and occupy the lands until they are actually sold under the incumbrances, are such substantial rights that it is difficult to understand how a sale cari be constitutionally made without notice to those whose rights are so vitally affected.

Our organic law ordains that “no person shall be deprived of . . . property without due process of law.” [Sec. 30, Art. 2, Constitution of Missouri.] No authority need be cited to demonstrate that an equity in incumbered real estate is property, and therefore under protection of the Constitution.

Due process of law is usually construed to be reasonable notice and an opportunity to be heard in defense of one’s rights.

It is true, as contended by respondents, that Secs. 147 and 148, R. S. 1909, do not require any notice to heirs or creditors of a proceeding to sell incumbered lands; but in the well considered case of State ex rel. v. Walbridge, 119 Mo. 383, l. c. 394, we said: “The law in accordance with the principles of justice — principles which are fundamental and eternal — will require that notice be given before any person be passed upon, either in person, estate or any other matter or thing to which he is entitled. And though: the stat: utes do not in terms require notice, the law will imply that notice was intended.” See, also, State ex rel. v. Maroney, 191 Mo. 531.

It is needless to multiply authorities in support of a proposition the mere statement of which demonstrates its correctness.

It is contended by respondents that as relators appeared in tbe probate court and objected to the proceeding whereby the respondents sought to sell their property, therefore the court acquired jurisdiction over them to make the order of sale.

However, the record shows that the relators appeared specially for the sole purpose of objecting to •the jurisdiction of the court, and that they took no part in the pretended trial or investigation which resulted in the order of sale complained of, therefore the court acquired no jurisdiction over them. [Thomasson v. Mercantile Town Mutual Ins. Co., 217 Mo. 485.]

It is not necessary to determine whether or not the notice specified in Sec. 152, R. S. 1909, would have been sufficient to confer jurisdiction upon the probate court of St. Louis City to proceed under Sees. 147 and 148, E. S. 1909, and make the order of sale it did make, for the reason that no notice of any kind was given in the instant case.

The probate court of St. Louis City exceeded its jurisdiction in making an order for the sale of property in which relators are interested without giving them notice or acquiring jurisdiction over their persons in any other manner; therefore, the preliminary writ of prohibition issued herein will be made absolute. It is so ordered.

Ferriss and Kennish, J.J., dissent, in opinion by Ferriss, J.; Vállicmt, G. J., concurs; Graves, Wood-son, and Lamm, JJ., concur in the result, and express the further opinion that probate courts have no jurisdiction even with notice to order the sale of lands of deceased persons for purposes of partition.

DISSENTING- OPINION.

FEEEISS, J.

— The petition of the administrator for an order to sell all the interest of the estate in the realty is evidently based on Secs. 147 and 148, R. S. 1909. It was so construed by the probate court, as is apparent from the terms of the order of sale, and so stated in the return of respondent Holtcamp, judge of that court.

The relators contend that under the facts the probate court was without jurisdiction to make the order of sale. This contention presents the only question necessary for consideration, namely: Did the probate court act within its jurisdiction? Our writ of prohibition does not issue to restrain a court, acting within the limits of its jurisdiction, from committing error, nor to correct errors after they are committed. Such erroneous rulings, if any, can be corrected only on appeal. Under our system of practice this rule is essential, however desirable it might be in particular instances to lay it aside. This court, in a case involving an order of the probate court to sell real estate, defines jurisdiction as follows:

“ ‘Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must'be present; and, third, the point decided must be, in substance and effect, within the issue.’ Munday v. Vail, 34 N. J. L. 422.” [Stark v. Kirchgraber, 186 Mo. l. c. 645.]

I think there can be no question as to the existence here of the first and third essentials as defined above. The probate court is given authority by statute to order the sale of real estate in a proper case. Under sections 150 and 154, real estate may be ordered sold to pay debts. Under section 143 the interest of the estate in real estate, which has been purchased but not fully paid for, may be ordered sold. Sections 147 and 148 provide for the sale of real estate for the purpose of redeeming mortgaged land, and also (Sec. 148) for selling the equity of redemption. In Jackson v. Magruder, 51 Mo. 55, speaking of statutes similar to the one cited, it is said: “Under our administration law as it stood when this sale was made, and as it still exists, the county court had the power to order land to be sold for the purpose of redeeming mortgages on other lands, or the court might make a special order to sell the equity of redemption of the mortgaged premises. But the court also had the power, on application of the administrator or a creditor of the estate, to make a general order for the sale of the real estate for the payment of debts, embracing equities of redemption and all other interests in lands.”

In State to use v. Schleiffarth, 9 Mo. App. l. c. 433, it is said: “The statute provides (Secs. 143, 144) that when any person dies owning an equity of redemption, the probate court may order the administrator to redeem the property out of the personalty, or by the sale of other real estate, or may order the equity of redemption to be sold.”

Were the proper parties before the court? No notice was given to the heirs as required by the statute (Sec. 152), and if this were a proceeding under section 150, et seq., such failure would defeat the jurisdiction of the probate court. [Hutchinson v. Shelley, 133 Mo. 400.]

Sections 147 and 148, which must be read together, provide as follows:

“Sec. 147. If any person die leaving land incumbered by mortgage or deed of trust, or any lien whatever, or owning any equity of redemption, or leaving mortgaged or pledged any personal property, and shall not have devised the same or provided for redemption thereof by will, the court shall have power, if, in its judgment, it will promote the interest of the estate and not be prejudicial to creditors, to order the executor or administrator to redeem the same out of the personal assets of the estate, or to order the sale of other real estate to redeem such land or personal property so encumbered, and also to order the executor or administrator to mortgage or pledge any personal property of the estate in his hands for the purpose of raising and providing money with which to redeem said premises so encumbered.
“Sec. 148. If such redemption would injure the estate or creditors, or there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public or private sale.”

No provision is made for any notice to heirs in a proceeding under these sections. We have been cited to no case involving the construction of said sections, and, after diligent search, I have found none.

Sections 142 and 143 are closely related to sections 147 and 148, and involve the same proceedings under substantially similar conditions. They are as follows

“Sec. 142. If any person die, having purchased real estate, and shall not have completed the payment, nor devised such real estate, nor provided for the payment by will, and the completion of such payment would be beneficial to the estate and not injurious to creditors, the executor or administrator, by order of the court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate.
“Sec. 143. If the court believe that, after the payment of debts, there will not be sufficient assets to pay for such real estate, the court may order the executor or administrator to sell all the right, title and interest of the deceased therein.”

This court decided in Garrett v. Bicknell, 64 Mo. 404, that no petition was necessary under these sections, and in that connection said:

“It will be perceived, upon an examination of the law regulating the- disposition which shall be made of a decedent’s interest in land bought by him in his lifetime and not paid for by him, that the Legislature intended to invest the county and prohate courts with powers freed from many of the restrictions imposed by those sections regulating sales of land on petition of the administrator, executor or creditor for the sale of real estate to pay debts.”

The case of Valle v. Fleming, 19 Mo. 454, inferentially holds that no notice would be necessary under these sections.

The statutes providing for the sale of the right, title and interest only of the deceased in incumbered property, Avhether such incumbrance is by deed of trust or vendor’s lien, make no provision for petition or notice. It is only when we come to the provisions for the sale of real property to pay debts that we find particular directions as to notice, publications, filing accounts, etc. I therefore conclude that in this proceeding under sections 147 and 148, the provisions of sections 151, 152, 153, providing for the filing of lists of debts, notice, publication, etc., do not apply, and that there is no want of proper parties before the court, nor failure of other jurisdictional facts.

The Legislature, no doubt, regarded proceedings to sell real estate to pay debts as essentially different, in relation to the interests of the heirs, from proceedings to protect incumbered property and dispose of equities, and hence the minute restrictions as to the former which are wanting in the latter cases. However that may‘be, the statute plainly makes a distinction in the matter of jurisdiction of the court. The probate court has jurisdiction to pass judgment on the points presented, namely, whether under the facts it was proper to order the sale of the equities in the real estate. The propriety of the ruling can be tested on appeal from any order it may make confirming a sale. [Wilson v. Brown, 21 Mo. 410; McVey v. McVey, 51 Mo. 420; Desloge v. Tucker, 196 Mo. 587; Sec. 289, R. S. 1909.]

For the foregoing, reasons I respectfully dissent from the opinion of the court.

Kevmish, J., concurs.


source: Caselaw Access Project

author: CRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. MAY C. JOHNSTON v. HENRY S. CAULFIELD et al., Judges of St. Louis Court of Appeals.
    In Banc,
    November 14, 1912.
    1. PROHIBITION: No Return: Facts Admitted. 'Where respondents make no return to the preliminary rule in prohibition, the verified statement of facts in the application for the writ will be taken as the facts of the case.
    2. -: Jurisdiction: Over Person: Right of Probate Court to Determine. Where the information.filed in the probate court states that a certain person therein is of unsound mind and incapable of managing his affairs and that said person is a resident of the county, and prays for an inquiry thereinto, the probate court has jurisdiction and the right to determine, upon a proper hearing, whether or not such person is a resident of the county; and no„ottter court, upon the filing of a verified statement with it that said person is a resident of another county, has authority to prohibit said probate court from hearing and determining the question of said person’s residence.
    3. -: Costs: Against Judges. The costs of a writ of prohibition directed only to judges of a court will be taxed against relator, though the preliminary rule be made absolute.
    Prohibition.
    Writ allowed

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Roive for relator.
   CRAVES, J.

— Original action in prohibition, in which a preliminary rnle was ordered against respondents, the judges of the St. Louis Court of Appeals. Our rule to show cause was duly served, but the .respondents have failed to make any return thereto.’ The case made by the application to this court thus runs:

On July 22, 19Í2, there was filed in the probate court of St. Louis, over which Hon. Robert L. Shackelford presides, the following document:

“To the Honorable Probate Court of St. Louis County, State of Missouri:
“The undersigned, May O. Johnston, wife of Rowland L. Johnston, hereby gives information and alleges the fact to be, that one Rowland L. Johnston, of the county of St. Louis, aforesaid, is a person of unsound mind and incapable of managing his affairs, and prays that an inquiry thereinto be had, according to the statutes in such cases made and provided. Informant further states that said Rowland L. Johnston is the owner of property of the value of about $1,000.”

This was duly verified by the said May O. Johnston, in an affidavit thereunto attached.

On the 22nd day of July, 1912,.one George B. Webster, purporting to act for the said Rowland L. Johnston, applied to the respondents herein, as judges of the St. Louis Court of Appeals, in vacation, for a writ of prohibition against the said Robert L. Shackelford, as judge of the probate court of St. Louis county, in which application it was charged that the said probate court was going to hear the application of the said May O. Johnston. It was further charged that the said Rowland L. Johnston was not a resident of S't. Louis county, but a resident of the city of St. Louis. Respondents issued a preliminary rule against the said Shackelford, in which they stayed the hand of that court until respondents could finally hear the case and citing the said Shackelford to'show why their said preliminary rule should not be made permanent.

At this juncture, on July 24, 1912, the relator, May C. Jobnston, applied to this court for a writ of prohibition against the respondents, and our preliminary rule in prohibition was issued as first above indicated. •

■ Prom the record it appears clearly that there were rapid moves on the checkerboard in this case. The complainant of May C. Johnston had- no more than been lodged with the probate court before its hand was stayed by the rule of respondents.

Such being the facts, were .respondents transcending their, bounds in issuing their writ? We think so, and for reasons clearly apparent, and which no doubt become apparent to our learned brothers of the St. Louis Court of Appeals upon second thought. This no doubt accounts for their failure to make return.

In the absence of a return we must take the verified statement of facts in the application to this court for the writ, as the facts of the case. But we need not go into those facts extensively with the views we entertain as to the law. According to the petition filed here, May C. Johnston filed the information set out above, in the probate court of St. Louis county, on July 22, .1912; that the judge of the probate court set the matter down for a hearing upon July 27, 1912; that immediately and on the said 22nd day of July, the application to the respondents was made, and their rule issued as aforesaid.

From the facts there had been no hearing by the probate court. By the information it is clearly charged that Rowland L. Johnston was “of the county of St. Louis,” and was the owner of property. This allegation gave the probate court jurisdiction, at least to hear and determine its own jurisdiction, if such became a disputed matter. The probate court was never given this opportunity. Taking the allegations of the petition for prohibition in the St. Louis Court of Appeals, it appears that the question in contest was whether or not Rowland L. Johnston lived in St. Louis county or in the city of St. Louis. This was a question of fact, the determination of which would determine the jurisdiction of the prohate court of St. Louis county. That court had the right to determine its own jurisdiction, when such jurisdiction was dependent upon facts. This we clearly ruled in Banc in the case of State ex rel. Crouse et al. v. Mills, 231 Mo. l. c. 500, where we said:

“Where the jurisdiction of the probate court is dependent upon the facts of the person being within the territorial jurisdiction of the court, a writ of prohibition will not lie to prevent the probate court from investigating the necessary facts to determine its own jurisdiction, nor could prohibition be granted to prevent an entry of the court’s judgment whether that judgment be right or wrong, as to the jurisdiction over the person. In other words, if the law determines the right of a court to entertain or not entertain jurisdiction of a case, then prohibition will lie, but if jurisdiction is contingent upon facts, unless such facts be admitted and not disputed, the lower court has the right to determine its jurisdiction from the facts before it.”

So we say in the case at bar. The information on file in Judge Shackelford’s court charged that the alleged insane person was within the jurisdiction of his court. Whether he was in such jurisdiction was a question of fact to be determined by the probate court upon a proper hearing. Prohibition will not lie to stop the judge of probate from determining the question of fact as to his jurisdiction. By their writ respondents are seeking to do this, and in so doing are exceeding their authority and powers. [State ex rel. v. Mills, supra, and cases cited therein.] It follows that the permanent and final writ of prohibition should go in this case, and it is so ordered.

Under the practice of this court in cases of this character, the costs will be taxed against relator.

All concur.


author: BROWN, J.

text:
    THE STATE ex rel. S. L. COLEMAN, Treasurer and ex officio Collector of Bates County, v. DEWITT C. BLAIR et al., Appellants.
    In Banc,
    November 14, 1912.
    1. DRAINAGE DISTRICT: Legality of Organization: Collateral Attack. A drainage district is a public corporation, and the legality of its organization cannot be inquired into in a collateral proceeding. So that where a land owner in the district is sued on a taxbill issued in pursuance of a levy of taxes to pay assessed benefits, it will not avail him as a defense to show that (1) only two of the three viewers appointed by the court to examine the lands sought to be drained reported in favor of the necessity, utility and practicability of the proposition, while the third made an adverse report, or (2) that the notice issued under See. 5581, R. S. 1909, was irregular and insufficient, or that said section is unconstitutional in that the notice prescribed by it is not due process of law.
    2. DUE PROCESS OF LAW: Notice by Publication: For Sufficient Length of Time: Great Distance from Court. What constitutes due process of law is in a large measure governed by the particular facts of each case. No general rule can be laid down that will apply mechanically in all cases. Constructive service by publication will not be held invalid simply because defendant was so far away from the seat of the court that notice could not reach him in time to be effective. Where the statute provided that the notice to land owners of the date when they may be heard on the question of benefits to be assessed against their lands in the drainage district “shall be published in four issues of some weekly newspaper published in the county, the last insertion to be .before the day set for the hearing,” a notice so published is not in contravention of the constitutional provision forbidding the taking of property without due process of law, as to a land owner who lived in New Jersey.
    3. -: -: -: -: Until Fourth Insertion. Where the statute provides that the notice “shall be published in four issues of some weekly newspaper published in the county, the last insertion to be before the day set for the hearing,” it cannot be held that a publication so made was no notice at all until the fourth publication. Nor will it be held that because the last publication was made only four days before the hearing and defendant resided in New Jersey and a distance of thirty-six hours’ travel from the seat of the court, he had only four days’ notice, and that the length of time between the notice and the hearing was not sufficient to constitute the notice due process of law.
    4. NOTICE BY PUBLICATION: Sufficiency. When the law requires a notice to be published for a certain number of weeks or days before legal proceedings are had, a notice is sufficient if the last publication is made before the proceedings are to he had.
    5. -: -: Drainage District: Names of Land Owners or I nterest. Section 5587 of the law relating to the organization of drainage districts does not require the engineer or viewers or the county clerk to examine the deed records of the county to ascertain who are the record owners of the land to be assessed with benefits, and in their publication notice to name every person who such an examination may show owns an interest in the land; and the publication notice was not invalid as to a nonresident owner simply because he was not named therein when from an examination of the county records his name could have been ascertained.
    6. -: -: Wrong Newspaper. A slight variation in the title of the newspaper in which the notice is directed by the court to he published, from its real name, will not invalidate the process. Where the notice of the assessment of benefits by the drainage district was directed by the court’s order to be published in the “Western Enterprise,” and it was published in the “Rich Hill Enterprise,” and the evidence is. that there was only one paper published in Rich Hill using the word “Enterprise” as a part of its name, and that it was sometimes designated by the public as the “Western Enterprise” and sometimes as the “Rich Hill Enterprise,” the variation in the name of the paper was not sufficient to invalidate the notice.
    7. -: -: -: To Heirs of Deceased Owner: Will of Record: Due Process of Law. A notice by publication to the owners of land in the drainage district to he assessed with damages, directed among others, to the “Estate of John I. Blair” and “John I. Blair’s Heirs,” and not naming the nonresident defendant DeWitt C. Blair, whom the will of said John I. then recorded in the county showed to be the owner of the lands, was a sufficient notice to the said DeWitt under section 5587 of the drainage law, and was due process of law.
    8. DRAINAGE DISTRICT: Hearing Objections: At Adjourned Sitting of Court. Under section 5615 of the drainage law, providing that “the terms ‘regular session’ and ‘regular meeting,’ ' of the' county court, as used in this article, shall he held to include the regular session of such court commencing on the first Monday in February, May, August and November of each'year, as well as any adjourned term, provided for by tbe court when in session,” an assessment of benefits made at an adjourned sitting of the court, on a date for hearing objections to the assessments fixed by the county clerk, was not invalid because the assessments were not made at “the next regular term,” as required by section 5587 found in the same article. The language of said section 5615 does not in express language declare that wherever the words “next regular term” are used in said article they shall include adjourned or special sittings of the court, but they clearly imply that such was the legislative intent, and whatever the law will imply is as much a part of an enactment as if in terms inserted in it.
    9. -: Suit on Taxbill: Attorney’s Fee. An attorney’s fee of $1000 in a suit on taxbills for $16,000, levied to pay for benefits assessed by the drainage district, in which many issues were tendered to defeat the action, allowed by the court and taxed as costs, was not unreasonable and is approved.
    Appeal from Vernon Circuit Court. — Ron. Berry Q. Thurman, Judge.
    Abitemed.

      John R. Lucas and Harvey C. Clark fox appellants.
    (1) Appellant never having been notified of the proceedings until the bringing of this action to enforce the payment of taxes, necessarily the taxes sued for are void, and there can be no recovery, (a) The alleged preliminary notice was void as to appellant. R. S. 1909, Sec. 5581. The order of the court required same to be published in the Rich Hill Review. The finding was that it was published in the Mining Review. This did not confer jurisdiction over the appellant. R. S. 1909, Sec. 5581. (b) No opportunity for hearing as to qualifications of commissioners was áfforded to appellant, nor objections as to sufficiency of petition given, (c) The appellant residing 1700 miles from the place of holding court could have no opportunity to appear in response to a notice published in an obscure newspaper on ten days’ notice thereof, (d) No authority existed in the county court to order notice on the report of only two members of the board of viewers. (2) The notice required by the statute, R. S. 1909, Sec. 5587, was never given in compliance with the provisions thereof, (a) The provision “the last insertion to be before the day set for hearing” is in-' sufficient to constitute notice and renders the action obnoxious to the provisions of: Sec. 30, Art. 2, Constitution of Missouri; and Sec. 1, Art. 14, Constitution of United States. Hunt v. Searcy, 167 Mo. 180; Hennig v. Staed, 138 Mo. 138; Stewart v. Young, 4 L. R. A. (N. S.) 169; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep, 289; Roller v. Holly, 176 U. S. 398. (b) The alleged notice is void, being in conflict with the provisions of section 5589, in that it is issued returnable not to the “next regular term,” but to the same term of the county court. R. S. 1909, Sec. 5587. (c) The notice is void. The title to the property in the name of the appellant was of record in the county of Bates. The statute requires “and also by name to all others whom it may in any manner be ascertained own such land.” R. S. 1909, See. 5587. (d) The alleged service is void in that it wholly fails to comply with the provisions of the statute and is under the evidence herein not “due process” of law. R. S. 1909, Secs. 5580, 5581; Chamberlain v. Blodgett, 96 Mo. 482; St. Louis v. Ranken, 96 Mo. 497; Schell v. Leland, 45 Mo. 289; Quigley v. Bank, 280 Mo. 289; Land Co. v. Cattle Co., 187 Mo. 420; R. S. 1909, Sec. 5587; Childs v. Morrow, 99 Mo. 638; Meyers v. McRay, Í14 Mo. 377; State ex rek v. Staley, 76 Mo. 15; Davis v. Montgomery, 20b Mo. 271; Feurt v'. Caster, 174 Mo. 289; Miller v. Keaton, 236 Mo. 710; Trust Co. v. Railroad, 195 Mo. 688; Wall v. Lumber Co., 175 Mo. 411; Hinkle v. Lovelace, 204 Mo. 208; Proctor v. Nance, 220 Mo. 104. (e) The service was void, the order of the court requiring the publication to be in the Western Enterprise and the publication being in the Rich Hill Enterprise.

      J. F. Smith and. Thomas J. Smith for respondent.
    (1) The assessment bills or taxbills offered in evidence by the respondent proved prima facie that the amount's sued for were “just and correct.” R. S. 1909, Secs. 5600, and 11498. (2) The prima facie case thus made was in no sense disproved by the evidence offered by the appellant with regard to the preliminary, notice now called in question, (a) The appellant showed by the record that the court found as a fact that preliminary notice had been given as required by statute by publication in the Mining Review. R. S. 1909, Sec. 558. (b) No record was introduced or offered in evidence by appellant showing the court had ordered this notice to be published in the Rich Hill Review. The burden.was upon appellant. R. S. 1909, Secs. 5600 and 11498. (c) Assuming that such record had been offered in evidence, the notice still was sufficient, since the evidence in the case shows without controversy that the names “Rich Hill Review” and “Mining Review” were used interchangeably and known by everybody in the county to refer to the same paper, (d) Appellant introduced only a small part of the record of the county court made in the matter of organizing the district and making the assessments sued for and has not shown that no other entries were made by the county court with regard to the publication of the preliminary notice. The burden as to this was upon appellant, (e) The notice published was in two successive weekly issues, the last more than ten days before the date of hearing, the first more than seventeen days, prior thereto. Appellant could have come from his place of residence to the hearing within thirty-six hours. R. S. 1909', Sec. 5581. (f) The report of a majority of the viewers was sufficient. R. S. 1909, Sec. 8057, subdiv. 2. (3) The notice required by section 5587 was strictly in pursuance of the terms of that section, (a) It ran in the name of the State and was directed to all parties shown by the report of the viewers to have real estate or to have any interest therein in the district and to all other persons owning real estate or having any interest therein in the district, (b) It gave a particular description in- lots not exceeding forty acres of all the lands in the district, (c) It was subscribed in his official capacity, accompanied by his official seal, by the clerk of the county court of Bates county, (d) It was published in the 'Western Enterprise, a weekly newspaper of general circulation in Bates county, for four successive issues, the last issue being prior to the date set for final hearing, (e) It gave to the appellant more than twenty-one days of notice of the time and place when the hearing was to be had, he being within thirty-six hours’ travel of the place of hearing, (f) The report of the viewers being filed prior to the first day of the February term of the court and having been set by the clerk for hearing on the first day of the term, the notice conformed strictly to the provisions of the statute. Secs. 8287, 8288-, R. S. 1899,.as amended by Laws 1905, pp. 183, 184; R. S. 1909, Secs. 5587 and 5588: (g) The notice contained a sufficient designation of appellant as the heir of John I. Blair. Jarboe V: Hay, 122 Mo. 354; Hoover v. Smith, 96 Md. 393; 4 Words & Phrases, p. 3241, title, “Heirs.” Appellant was an heir of John I. Blair. Besides, the statute is directory only, (h) It was the duty of the county clerk to select the newspaper meeting the statutory requirements in which the final notice should be published. - R. S. 1909, Secs. 5587 and 5588. (i) -The clerk did select and cause the final notice to-be- p-ub-‘ lished in the Western Enterprise, a weekly newspaper published in Bates county, for four successive issues, the last issue- being prior to the date of the hearing, (j) ’Even if1 the record'of the county court -ais first written showed that the paper in which this notice was published - was ■ the “Rich Hill Enterprise,” that was simply a' matter of recital which the court, while the proceeding was pending, had full power at all times to correct. Besides, the power of the court to further proceed in the matter depended upon whether or not this notice was published in some newspaper meeting the statutory requirements, and such paper need not have been at all designated by the county court, (k) The designations “Western Enterprise” and “Rich Hill Enterprise” each refer to the same newspaper and by either name was equally known. (4) The law under which the assessment in this case was made is constitutional and does not by its terms deprive appellant of his property without due process of law. State ex rel. Applegate v. Taylor, 224 Mo. 383 ; State ex rel. v. Bugg, 224 Mo. 537; St. Louis v. Rankin, 96 Mo. 505; Davidson v. New Orleans, 96 U. S. 104; Windsor v. McVeigh, 93 U. S. 274; Huling v. Railroad, 130 U. S. 559. (5>) The attorney’s fee allowed in drainage assessment cases is provided by Sec. 5599, R. S. 1909, and not Sec. 11497.
   BROWN, J.

— Civil action in the circuit court of Bates county to collect drainage taxes in the sum of $2659.20. Plaintiff had judgment below, and defendants appeal.

Plaintiff’s petition alleges the organization of Drainage District No. 1 in Bates county, Missouri, by the county court of that county of February 7, 1906, under the provisions of Art. 4, Ch. 122, R. S. 1899 (now Art. 4, Ch. 41, R S. 1909).

.The taxes sued for were levied by the county court in the year 1907, to pay bonds issued and sold to raise money to drain overflowed lands of defendants and other persons situated within said drainage district. These taxes remained unpaid on November 1, 1908, and this suit is to enforce the lien of said taxes against the lands of defendants.

Defendant Dewitt O. Blair filed a separate answer asserting ownership in himself of the lands described in plaintiff’s petition, and denying generally all other allegations therein. The other .defendants filed’ no pleadings and made no defense. For the purpose of this opinion, Blair -will be hereafter treated as the sole defendant.

The delinquent drainage taxbills upon which plaintiff’s suit is based, were introduced in evidence. Whereupon, to overcome the prima facie case thus made by plaintiff, defendant assailed the incorporation of the drainage district, and attempted to prove the invalidity of the taxbills by introducing the records of the county court and the petition, reports, notices and other proceedings which resulted in the organization of said drainage district and the assessment of benefits against his lands.

I. The defendant contends that the judgment of the county court organizing and incorporating the drainage district is void because:

(1) Only two of the three viewers appointed by the court to examine the lands sought to be drained, reported in favor of the necessity, utility and practicability of the proposition, while the third viewer made an adverse report on said proposition; and

(2) Sec. 5581, R. S. 1909, is unconstitutional, in that the notice therein prescribed is not due process of law. Defendant also asserts that the notice issued under said last named section was irregular and insufficient in both form and substance.

Neither of the issues thus tendered can avail defendant in this action, because a drainage district is a public corporation, and the legality of its organization and the sufficiency of its corporate existence cannot be inquired into in this collateral action. [State v. Fuller, 96 Mo. 16:5; Catholic Church v. Tobbein, 82 Mo. 418; Burnham v. Rogers, 167 Mo. 17; School District v. Hodgin, 180 Mo. 70.]

II. It is further contended that the length of time prescribed by Sec. 5587, R. S'. 1909, for the publication of notice to land owners of the date when they may be heard on the question of benefits assessed against their lands for the drainage of the same, is so short as to constitute the taking of property without due process of law, as prohibited by Sec. 30, Art. 2, Constitution of Missouri, and Sec. 1 of the Fourteenth Amendment to the Constitution of the United States.

Section 5587, supra, provides that notice to land owners of the application to incorporate .a drainage district “shall be published in four issues of some weekly newspaper published in the county, the last insertion to be before the day set for the hearing.”

From the phraseology of the statute quoted, it is evident that the last publication of the notice need not be on the last day before the day set for the hearing. Statutes of practically the same purport have been construed by this court to be complied with when the last insertion of the notice occurred ten days before the cause was set for hearing. [Robbins v. Boulware, 190 Mo. 33; Ratliff v. Magee, 165 Mo. 461.]

Thus it will be seen that the issue presented here is not alone whether section 5587, supra, is unconstitutional, but whether the notice as published and the judgment based thereon amounted to taking defendant’s property without due process of law.

' The hearing of objections by the land owners to the assessment of benefits against their lands was set for March 20, 1906', and the notice of said hearing was published in the' Rich Hill Enterprise on February 16 and March 2, 9 and 16, 1906. Defendant Blair resided in the State of New Jersey, and the time required to make the trip from New "Jersey to Bates county, Missouri, is thirty-sis hours.

What constitutes due process of law is in a large measure governed by the particular facts of each case. No general rule can be laid down that will cover all cases.

The defendant cites and mainly relies upon Roller v. Holly, 176 U. S. 398, which was an action to enforce a vendor’s lien against real estate in Texas owned by a party residing in the State of New Jersey. The statute of Texas prescribed five days’ notice; and the process in that case was delivered personally to the defendant five days before the action was set for trial. The distance between the place of trial and the place of service was so great that it would have required four days continuous travel for defendant to have been present at the trial. The process so served was adjudged insufficient because not allowing the defendant a reasonable time to employ counsel and attend the trial; and therefore was held not to be due process of law.

It will be readily seen that the facts in this case are entirely unlike the facts in Roller v. Holly, supra. There, the clerk of the court issuing the process' must have known that the defendant was so far away from the place of trial that he would need more than five days ’ time after service of process to go to Texas, employ counsel and prepare for his defense. The clerk knew where defendant lived; otherwise, he could not have forwarded the process to be served on him in New Jersey; while in the case at bar it does not appear that the clerk of the county court or the judges thereof had any knowledge of the whereabouts of defendant. It would certainly be a dangerous doctrine to announce •that constructive service by publication *in a newspaper might be rendered invalid because the defendant or other parties to be notified were so far away from the place where the court is sitting that the notice could not reach them in time to be effective.

In Wade on The Law of Notice (2 Ed.), Sec. 1029, it is said: “Publication is a means authorized by statute in most, if not all, the States of the Union, for obtaining constructive service of process, when from the non-residence, absence from the State, or absconding of the defendant, a more direct mode of service becomes impracticable. Service of summons in this manner is called constructive, not because the publication in the manner prescribed by statute raises any reasonable presumption that thereby the defendant is advised of the pendency of the suit, for its authorization is not confined to cases where .there is even a possibility of its ever coming to the knowledge of the party to be affected. The defendant may have removed so far beyond the confines of civilization that it would be impossible in the nature of things for the paper containing the first insertion of the notice to reach him before the return day, and it will still be as effective as though the paper came regularly to his hands.”

Defendant proceeds on the theory that the notice which he complains of wás no notice at all until it was inserted in the newspaper the fourth time. We do not think this proposition can be sustained upon authority or sound reason.

Undoubtedly the first, second and third publications of the notice performed some office. It is-well known that no one person reads all the newspapers, and that whether or not a defendant will actually see a notice to him when published in a newspaper is a matter of chance. He would certainly be as likely to see the notice when published the first time as any subsequent publication.

The usual rule is that when the law requires a notice to be published for a certain number of .weeks or days before legal proceedings are had, it is sufficient if the last insertion of the notice shall occur before such proceedings are had. [German Bank v. Stumpf, 73 Mo. 311; Drainage District v. Campbell, 154 Mo. 159; Harper v. Ely, 56 Ill. 179; Fry v. Bidwell, 74 Ill. 381.]

Defendant’s resonrcefnl counsel has called our attention to many statutes of Missouri prescribing how service may be had by publication; but he. omits Sec. 152, R. S. 1909, providing for publication of notice to creditors and others interested in proceedings to sell real estate of deceased persons to pay debts. That statute calls for a notice very much like the notice prescribed in the drainage law now in judgment.

To sell real estate through the probate court to pay debts it has never been deemed necessary to insert the notice of the proceeding in a newspaper more than twenty-eight days before the cause is set for hearing. If we were to adopt the rule for which the defendant contends it would probably invalidate a large number of the probate sales which have heretofore taken place in Missouri. [Young v. Downey, 145 Mo. 250.] We are not bound to follow prior decisions of this court if the law as' announced therein be erroneous; but we usually follow our precedents when to do otherwise would disturb a large number of titles. [Cruzen v. Stephens, 123 Mo. 337, l. c. 346.]

Upon the authorities hereinbefore cited and for the reasons noted in paragraph V of this opinion, we overrule defendant’s contention on this point.

III. Defendant contends that the notice as published fails to comply with sections 1770 and 1776 of our general code of civil procedure, citing Davis v. Montgomery, 205 Mo. 271, and many other cases defining the requirements of orders of publication under the foregoing sections.

It is manifest that the notice in judgment does not conform to the requirements of sections 1770 and 1776, supra; ,and this requires us to determine what kind of a notice is contemplated by Sec. 5587, R. S. 1909.

If Art. 4, Ch. 41, R. S. 1909, relating to the organization of drainage districts had simply required the notice under section 5587, supra, to be directed to the owner of the land, then said section would have to be construed in the same manner as orders of publication intended to notify non-resident owners in ordinary suits to collect delinquent taxes (Sec. 11498,' R. S. 1909). In other words, it would be necessary in organizing a drainage district to notify either the real or the record owners of lands situated in the district by their true names; or if their names were unknown, then it would be necessary to describe their interests or claims to such lands and how such claims oí interests were derived.

However, we find that the drainage law does not require the same kind of notice as in ordinary suits to collect back taxes; and the sufficiency of the notice now under consideration must be tested by the provisions of the drainage law. [Ratliff v. Magee, 165 Mo. 465.] Section 5584, which provides for the appointment of a surveyor and three viewers to survey and-estimate'the expense of draining overflowed lands and’ to assess benefits against same, provides that 'said viewers shall-in their report give “the name of the owner o.r owners of each tract of land and of any interest therein, so far as they are, by diligent effort, able -to ascertain the same. ” •

Section 5587, supra, provides that the clerk shall fix the time "for hearing objections to the assessment of benefits assessed against the lands within the drainage, district, and “shall thereupon issue, in the name of the State, a notice, directed, by name," to every person returned by the engineer and viewers -as the owner of every lot or parcel of land affected by the proposed improvement or of any interest therein; ’ ’ and also like notice by name to all other persons “whom it may• in any manner be ascertained own such-land; or-any part thereof, or any interest therein;” and-also notify generally “all other persons, without mentionirig' their names, who may own such land, or-any part thereof, or any interest therein, notifying them of the general object and nature of tbe petition, and report of tbe engineer and viewers, and that, on the day so fixed, the county court will hear said petition and report; and any evidence that may be adduced concerning the same.”

In construing this section, we must determine what is meant by requiring the notice to designate by name “all persons whom it may in any manner be ascertained own such land.”

Do these words require the viewers to go to the deed records and there ascertain who owns the lands against which they have assessed benefits? We think not. It is evident that the framers of this drainage law thought it would seldom or rarely be applied in draining lands which were unimproved or which were owned by non-residents. By requiring the viewers and engineer to ascertain and return the names of the owners, it was contemplated that said viewers and engineer should find out who were the owners of the land by inquiry of the persons in possession thereof or other persons within the drainage district. Sec. 5583, R. S. 1909, provides that after the first notice is given of the intention to organize the district, persons opposed to such organization may file their remonstrances with the court, and where such remonstrances are filed, it would under this law, become the duty of the clerk to notify the remonstrators of the date fixed for hearing objections to the assessment of benefits.

The provision in section 5587, supra, that all other persons shall be notified of the petition and assessment of benefits, “without mentioning their names,” indicates that it was not the intention of the framers .of this law to have the land records examined in order to ascertain who should be notified.

The word “may” is sometimes construed as mandatory, but more frequently otherwise. As used in the words of the' statute last quoted it does hot impose upon the clerk'of-the county court, the viewers, engiBeer or any other persons connected with the proceeding, the duty of examining the land records to ascertain the names of persons who own the lands against which benefits have been assessed. This point is ruled against defendant.

The sufficiency of the notice of the hearing on the assessment of benefits is also attacked on three other grounds: (1) that the notice was not published in the newspaper designated by the county court; (2) that the defendant was not named in said notice as published; therefore, as to him, it was not due process of law; and (3) that the notice was not returnable to the next regular term of court after its issue.

IV. The order of the county court of Bates county, directing the publication of notice of the assessment of benefits, directed the clerk to insert said' notice in the “Western Enterprise;” but it was in fact published in the “Rich Hill Enterprise.” Oral evidence introduced by the plaintiff proves that there was only one newspaper published in the city of Rich Hill, Missouri, using the word “Enterprise” as a part of its name, and that it was sometimes designated by the public as the “Western Enterprise,” and sometimes as the “Rich Hill Enterprise.” This variance in the name of the paper is not sufficient to invalidate the notice.

Wade, in his treatise on the Law of Notice (2 Ed.), Sec. 1067, correctly announces the law on this point as follows:

“A slight variance in the title of the paper in which the notice is directed to be published, from that by which it is really known, will not vitiate the process, where it satisfactorily appears that the publication was in the one intended by the order. As where the order designated the ‘Evening Day Book,’ and the notice was published in the ‘New York Day Book,’ there being no evidence offered that there was any other paper of the same or a similar name, to which the order eonld apply, this was held sufficient.”

V. The notice as published is directed to the estate of John I. Blair, John I. Blair’s heirs and numerous other persons owning land in the drainage district, and further purports to notify ‘ ‘ all other persons who own or have any interest in or to the following described real estate lying and being in the county of Bates and State, of Missouri, followed by a description of all lands in the district, including those involved in this action.”

Defendant earnestly insists that although the notice as published may have been in conformity with the drainage laws, nevertheless, it was not due process of law under the Federal Constitution, because the will of his father, John I. Blair, whereby defendant became invested with title- to the lands sought to be subjected to the lien of the taxbills, was on record in Bates county before any steps were taken to organize the drainage district; and therefore the notice should have been directed to defendant by name, instead of to the estate or heirs of his father.

This contention is entirely unsound. When a statute has required notice to be 'given in a certain form to absent land owners, such statute has almost universally been held to constitute due process of law.

Huling v. Kaw Valley Railway and Improvement Company,' 130 U. S. 559, was a suit under a statute of Kansas governing the condemnation and appropriation of lands for railroad purposes. That statute did not provide that the notice to absent land owners should designate them by name, but only required that such notice should give the numbers of the sections, townships and ranges through which the railroad would be constructed. The Supreme Court of the United States, in upholding the constitutionality of the above mentioned statute, said:

“The owner of real estate, who is a non-resident of the State within which the property lies, cannot evade the duties and obligations which the law imposes upon him in regard to such property, by his absence from the State. Because he cannot be reached by some process of the courts of the State, which, of course, have no efficacy beyond their own borders, he cannot therefore hold his property exempt from the liabilities, duties, and obligations which the State has a .right to impose upon such .property; and in such cases some substituted form of notice has always been held to be a sufficient warning to the owner, of the proceedings which are being taken under the authority of the State to subject his property to those demands and obligations. Otherwise, the burdens of taxation, and the liability of such property to be taken under the power of eminent domain, would be useless in regard to a very large amount of property in every State of the Union. It is, therefore, the duty of the owner of real estate, who is a non-resident, to take measures that in some way he shall .be represented when his property is called into requisition; and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. Such publication is ‘due process of law’ as applied to this class of cases.”

See also Leigh v. Green, 193 U. S. 79, and Johnson v. Hunter, 127 Fed. 219.

VI. This brings us to the further contention -of defendant that the assessment of benefits against his land is invalid' because the clerk of the county court fixed the date of hearing objections to said assessment of benefits at an adjourned sitting of said court instead of during “the next regular term” thereof, as required by Sec. 5587, R. S. 1909. ' ’

It is undoubtedly true, that where the law fixes a definite date on which a notice or other process shall be returnable, it cannot be made .returnable at a different date. [Holladay v. Cooper, 3 Mo. 202.]

Section 5615 (Art. 4, Ch. 41, E. S. 1909', in which said section 5787, supra, is found) provides that:

“The terms ‘regular session’ and ‘regular meeting,’ of the county court, as used in this article, shall be held to include the regular session of such court commencing on the first Monday in February, May, August and November of each year, as well as any adjourned term, provided for by the court when in session.”

It will be observed that said section 5615', supra, does not in express language declare that whenever the words “next regular term” are used in said Art. 4, supra, said words shall include adjourned o,r special sittings of the county court. However, the language quoted clearly implies that such was the legislative intent; and “whatsoever the law will imply is as much part and parcel of a legislative enactment as though in terms inserted therein.” [State ex rel. v. Mason, 155 Mo. 500; Sutherland on Statutory Construction, Sec. 334.]

The county court acquired jurisdiction over the matter of assessing benefits against defendant’s lands by fixing a date for the hearing and giving notice accordingly. Whether such hearing was at a regular or adjourned term did not affect the court’s jurisdiction.

We are fully aware of the rule that statutes which permit courts to acquire jurisdiction by constructive service must be strictly construed. That is indeed a valuable rule, but should not be followed to a point which would force the courts to disregard their reason and common sense.

The notice met every requirement of the law under which it was issued and published.

VII. Defendant also .complains of the action of the trial court in allowing an attorney’s fee in the snm of $1000 in favor of plaintiff and taxing same as costs in the case, as permitted by Sec. 5599', R. S. 1909.

The snit involved, directly and indirectly, the validity of taxes aggregating $16,000, and considering the number of issues tendered to defeat the plaintiff’s action, we think not only the evidence introduced but the facts disclosed by the record warranted the court in allowing the sum of $1000 and taxing the same as an attorney’s fee.

The judgment is affirmed.

All concur.


author: LAMM, J.

text:
    THE STATE ex rel. FEDERAL LEAD COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    November 14, 1912.
    1. REFERENCE: Compulsory. Though the action be one at law and a reference is not by written consent of parties, yet if it involves long and intricate accounts, arising upon charges and counter charges of alleged breaches of contract, it is one for compulsory reference.
    2. -: Practice: Exceptions: What Matters Considered. •Where a suit in equity, or an action at law subject to compulsory reference, is sent to a referee, the trial court may not only sustain exceptions to the referee’s report and set aside his findings, but may go on and make findings of its own and render judgment contrary to that of the referee; and all its rulings and acts are subject to review in an appellate court and to its revising judgment, where exceptions are properly preserved below and brought up on appeal.
    3. ' APPELLATE JURISDICTION: Amount in Dispute: How Determined. The amount in dispute by which the jurisdiction of an appellate court is fixed, is not necessarily determined in all cases by the amount of the judgment appealed from, nor by the amount claimed in the petition or counterclaims, but is determined by the amount that actually remains in dispute between the parties, on the appeal, and subject to the determination by the appellate court of the legal questions raised by the record.

      4. -: -: -: Colorable Amounts. To get at the amount in dispute for appellate purposes, the court may look beyond the judgment and far enough into the record, to see that its proper jurisdiction is not cut away, or an unwarranted jurisdiction is not foisted upon it, by design, inadvertence or colorable amounts; and to that end it may eliminate amounts set at rest by the pleadings, or determined below and not appealed from by the losing party, or it may consider counterclaims where they in fact remain in the case.
    5. -: -: Reference:- Counterclaim: Prohibition. Where the suit was for a quantum meruit under a contract and for loss of profits, and defendant set up numerous counterclaims, and the matter was referred to a referee, who took the evidence and made report, in which, by balancing claims and counterclaims, he found in favor of defendant in the sum of $2656.68; to which plaintiff alone filed exceptions, which were sustained and defendant’s counterclaims disallowed by the court, and judgment was rendered in favor of plaintiff for $6817.48, the amount in dispute on defendant’s appeal is the sum of those two items, namely, $9474.16, and the Supreme Court alone has appellate jurisdiction; and if the appeal was allowed to the Court of Appeals, and it overruled a motion to transfer to the Supreme Court alleging the amount in dispute to be in excess of $7500, and that motion is overruled, the Supreme Court by its writ of prohibition will order the case transferred to it.
    6. -: -: Former Decisions. Where the court in former decisions has held that the amount of the judgment appealed from determines the appellate jurisdiction, the holding was correct as applied to the record facts there held in judgment, but the general language used in them was not intended as an unvarying pronouncement to be mechanically and always applied to a different state of facts and different issues.
    7. PROHIBITION: Costs. Judges should not be mult.ced in costs and other damages for errors of judgment in judicial matters; so that, where the preliminary rule in prohibition against the judges of a court is on the hearing made absolute, the costs should be taxed against relator.
    Prohibition.
    Writ allowed.

      Robert & Robert for relator.
    There is no question but wbat tbe amount in dispute in this case is above $7500. The respondents take the position that when the judgment amounted to but $6817.48 and the defendant alone appealed, that is the sum in dispute, overlooking, entirely, the fact that relator has complained of the setting aside of the finding of the referee in its favor, amounting to $2656.68 with interest from April 4, 1907. Had the Abbot-Gamble Company not filed exceptions to the referee’s report, that would have been the amount of the judgment. It did, however, file exceptions which were sustained and hence that sum to which the referee found the relator entitled, was directly in dispute. The court further found in favor of the plaintiff $6817.48 and the relator complained of that, as well as setting aside the finding of the referee.. There is, therefore, no question but what those two sums added together form the amount in dispute. Thus the aggregate sum in dispute is $9726.54. State ex rel. v. Lewis, 96 Mo. 146; Conrad v. DeMontcourt, 138 Mo. 321; May v. Trust Co., 138 Mo. 447; Douglas v. City, 147 Mo. 432.

      Seneca N. Taylor for respondents.
   LAMM, J.

— The Federal Lead Company, complaining of the St. Louis Court of Appeals for that it was exercising jurisdiction of an appeal from a judgment of the St. Francois Circuit Court in favor of Abbot-Gamble Company against said Lead Company, moved for a preliminary rule here in prohibition. Such rule was issued and served, citing respondents, the judges of that court, to show cause. By their return and by a demurrer thereto, an issue at law is sprung, to-wit, whether, on that return and on the record lodged in the Court of Appeals in the original cause -(and presented here for our consideration), the rule should be made absolute and a writ go.

At a certain time, the Abbot-Gamble Company sued the Lead Company in three counts, the subject-matter of all of them relating to a contract by which the former undertook to furnish the labor, machinery and material (barring certain exceptions) to construct the foundations and ground floors for the latter’s mill and reduction works near Plat River. In the first count judgment was asked for $11,882.29 (on a qua/ntum meruit); by the second, for $1011.45 (additional labor and work); by the third $9,300 (loss of profits).

For its first defense in that cause, the lead company relied on a general denial. For its second, by way of affirmative allegations of matter constituting a counterclaim, and further by way of specific denials and admissions, its answer worked out the result that plaintiff had earned under the contract a surplus over payments in the sum of $3766.54, but that there was due from plaintiff to defendant (by reason of averments of fact made in the answer) a much larger sum than that. As to the second count the amount claimed thereon by plaintiff stood confessed, but it was averred that plaintiff owed defendant, by reason of certain facts, a much larger sum. The answer then goes on to set up counterclaims arising out of the contract and transaction pleaded as the foundation of plaintiff’s claim — one counterclaim aggregating $15,-688.26 and another $788.70.

A reply coming in to this answer (and defendant also replying to the new matter set up in plaintiff’s replication), on motion of plaintiff the cause was ordered referred to Julian Paul Cayce, Esq., as referee, who qualified and assumed the burden. After a year and four months spent in taking a great volume of testimony, the referee reported the amount due defendant on the counterclaims to be $17,209.83, and the amount due plaintiff on the causes of action stated in its petition to be $14,553.15, leaving due defendant, on striking a balance, the sum of $2656.68. For that balanee the referee recommended a judgment in favor of defendant.

{Note-. While the matter was in fieri, plaintiff became a bankrupt and Mr. Folks, its trustee in bankruptcy, was allowed to appear as a party and carry on the suit.)

At the proper stage, plaintiff filed exceptions to the report of the referee, but defendant was content and filed none. Presently plaintiff’s exceptions were sustained, all defendant’s counterclaims were disallowed, and judgment went in plaintiff’s favor on the first and second counts in the aggregate sum of $6817.48. From that judgment defendant alone appealed, having in apt form and due time preserved alive its exceptions to the court’s action in sustaining plaintiff’s exceptions to the referee’s report; in disallowing its counterclaims and in giving judgment for plaintiff.

The appeal was allowed to the St. Louis Court of Appeals. There defendant filed a motion to transfer the cause here, grounding its motion on the theory that the amount in dispute on appeal exceeded the jurisdiction of the Court of Appeals. That court having overruled that motion, defendant came here with its suggestions for prohibition, with the result stated at the outset.

Having summarized enough of the record for our purposes, we are of opinion that on such summary an absolute rule should be entered and a writ go.

This, because:

(a). While the original action was at law, yet the reference in hand was not by “the written consent of the parties.” [R. S. 1909, Sec. 1995.] ' The long and intricate accounts involved, together with a multiplicity of refined details arising on charges and counter-charges at issue for alleged breaches of the contract, all set forth, in the pleadings and exhibits in fifty pages of solid print, made the cause eminently one for compulsory reference within the purview of our statute. [R. S. 1909, Sec. 1996.]

Indeed, defendant seems to have acquiesced in the order of reference, and, we take it, thereby impliedly admitted that the ease belonged to a class subject to compulsory reference, and in which defendant had no constitutional right to a jury.

(b) . Whatever be the rule in cases that could only be sent to a referee by agreement of parties, yet where a cause in equity is sent to a referee or where a case at law (subject to a compulsory reference) is sent to a referee, the settled rule is that trial courts may not only sustain exceptions to the referee’s report and set aside his findings, but may go on and make findings of its own and render judgment contrary to that recommended by the referee; and (which is closer home) all of such rulings and acts nisi are subject to review by an appellate court and to its revising judgment when (as here) exceptions are properly preserved below and brought up for disposition above. [Caruth-Byrnes Co. v. Wolter, 91 Mo. l. c. 488; State ex rel. v. Hurlstone, 92 Mo. l. c. 332, et. seq.; Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 671; Small v. Hatch, 151 Mo. l. c. 306; Williams v. Railroad, 153 Mo. l. c. 495; Smith v. Baer, 166 Mo. 392; Vide, State ex rel. v. Woods, 234 Mo. l. c. 26, and Star Bottling Co. v. Exposition Co., 240 Mo. l. c. 639, et seq., arguendo, on the scope and character of the issue below on exceptions filed to a referee’s report.]

(c) . The question in judgment being the amount in dispute on appeal, not only propositions ruled in paragraphs a and 5 are of help in marking the road the court must' travel in reaching the amount in dispute, but there is another proposition of kin thereto, to-wit: The amount in dispute by which the jurisdiction of the appellate court is fixed (in some cases maybe, but) in all cases is not necessarily determined by the amount of the judgment appealed from, nor by the. amount claimed in the petition or counterclaims, but is determined by the amount that actually remains in dispute between the parties, on the appeal, and subject to the determination by the appellate court of the legal questions raised by the record. [State ex rel. v. Lewis, 96 Mo. l. c. 148; Douglas v. Kansas City, 147 Mo. l. c. 432; Bridge Co. v. Transit Co., 205 Mo. l. c. 179, et seq.; Vanderberg v. Gras Co., 199 Mo. l. c. 458, et seq.]

(d) . Accordingly it is accepted doctrine that, to get at the amount in dispute for appellate purposes and preserve the constitutional integrity of this court on the matter of its jurisdiction, we may look within the mere shell of the judgment and far enough into the record to see that our proper jurisdiction is not cut away, or that jurisdiction is not foisted upon us by design, inadvertence or by mere colorable amounts. So, we may eliminate amounts set at rest by the pleadings, or determined below and not appealed from by the losing party, or consider counterclaims (where the case cries out for it on appeal). [Conrad v. De Montcourt, 138 Mo. l. c. 321; Wilson v. Russler, 162 Mo. 565; State ex rel. v. Lewis, supra; In re Burke’s Estate, 169 Mo. 212; and cases cited supra in paragraph c.}

(e) . The premises all considered, it seems plain this court has jurisdiction of the case of Folks, Trustee of Abbot-Gamble, v. Federal Lead Company; for, at bottom, the issue on appeal is: Did the court err in setting aside the findings of the referee whereby, by balancing claims and accounts, a net balance is found in favor of defendant on its counterclaims in the sum of $2656.68; and commit further error by rendering judgment in favor of plaintiff, after disallowing all such counterclaims, in the sum of $6817.-48? That the amount in dispute, subject to the judgment of the appellate court on review, is the sum of those two items seems clear. Take an a, b, c case to illustrate: If Eoe claim one dollar of Doe and- the court not only takes that dollar from him but two dollars more and gives them to Doe, evidently he is out of pocket and injured in the sum of three dollars, and, on Eoe’s appeal, the amount in dispute would be those three dollars. In this case defendant was content to abide the finding of the referee awarding it $2656.68; but the trial court not only took away its right to the-sum so found, but mulcted it in the further sum of $6817.48. Defendant appealed to correct that situation and the amount in dispute, as said, is the sum of the two items'. Under the authorities cited, supra, the appellate court has power, if the justice of the case demands it, to give judgment (or direct a judgment) that shall cut away plaintiff’s recovery in whole or part, or re-establish the finding of the referee in whole or part — that is, it can undo what was done below and do rightly what was done wrongly.

(f). There are cases where, on defendant’s appeal, we have used general language to the effect that the amount of the judgment appealed from determines appellate jurisdiction. Jackson v. Binnicker, 179 Mo. 139; McGregor v. Pollard, 130 Mo. 332 and Hensler v. Stix, 185 Mo. 238, are samples of such cases. When applied to record facts held in judgment in those cases, the general language in which the rule is put is well enough, for that is the general rule. But that general language must be understood as referable to the facts and issues of those cases, and not as an unvarying legal pronouncement or formula to be mechanically and always applied to a different state of facts and different issues. The court, having an eye to the case in hand, was not called on to state all the qualifications and limitations of the rule and deliver a charge on the whole body of the law. The writing of opinions would be an intolerable task and the reading of them even worse if that were good doctriné. A court can write sound law without writing all there is of it at one time. [State ex rel. Bixby v. St. Louis, 241 Mo. 231.]

The rule in prohibition is, therefore, made absolute and the St. Louis Court of Appeals is ordered to transfer the cause to this court.

Let the writ go — at relator’s costs however. Judges should not be mulcted in costs or other damages for errors of judgment in judicial matters.

All concur.