author: BROWN, C. BLAIR, P. J. GRAVES, J.

text:
    In re ALBERT WEBERS, Petitioner in Habeas Corpus; WILLIAM YOUNG et al., Respondents.
    Division One,
    September 16, 1918.
    1. HABEAS CORPUS: Hot of Legislative Creation. Relief from illegal imprisonment, by habeas corpus is not the creature of any statute. The writ cannot be abrogated by the Legislature. The Constitution (Art. 2, sec. 26) provides that its- privileges shall never be suspended. The Legislature has confined its action principally to facilitating the use of the writ, and the courts cooperate with it in extending these facilities.
    2. -: Jurisdiction: Appeal. The Supreme Court has no appellate jurisdiction in a habeas corpus proceeding, for an appeal does not lie in such a.proceeding.
    3. -: -: -: Constitutional Question. Whether or not the statute under which a petitioner is imprisoned is constitutional, if he applies to a court of appeals for a writ of habeas corpus and that court proceeds to final action, whether by discharging him or remanding him to custody, that case is at an end. If not discharged, but is remanded to custody, his course, if he wishes the Supreme Court to determine the constitutionality of the statute and the consequent validity of his imprisonment under the statute, is to apply to that court for its writ. No way is provided, either by the Constitution or statutes, by which the Supreme Court can acquire jurisdiction in a habeas corpus proceeding-otherwise than by- the use of its own writ, directed to be issued either by itself or by one of its judges.
    4. -:-: Transfer from Court of Appeals to Supreme Court: Constitutional Question. A court Of appeals, having issued its writ of habeas corpus on behalf of a prisoner who alleges he is being .illegally deprived of his liberty, has no authority, when the constitutionality of the statute under which he is held is properly assailed, to transfer the case to the Supreme Court, on the ground that the constitutionality of said statute is involved. The Supreme Court cannot by transfer acquire jurisdiction in a habeas corpus case. [Rule announced in Moberly v. Lotter, 266 Mo. 457, criticized.]
    Transferred from the St. Louis Court of Appeals.
    Remanded (without direction).

      C. J. Anderson for petitioner.

      Holland, Rutledge & Lashly for respondents and intervenor.
   BROWN, C.

This is a proceeding by petitioner for the purpose of obtaining his discharge from the custody of William Young, Chief of Police, and Robert M. Hanna, Captain of' Police of the city of St. Louis, by whom he had been arrested in that city on July 17, 1817, upon a charge of having violated an ordinance of said city. The application was made to the St. Louis Court of Appeals. The charging part of the petition is as follows:

“To the Honorable Judges of the St. Louis Court of Appeals in and for the City of St. Louis, Missouri:

“Comes now Albert Webers and respectfully represents to this Plonorable Court that he is unlawfully deprived of his liberty by William Young, Chief of Police of the city of St. Louis, Missouri, and Robert M. Hanna, Captain of Police in and for the Third Police District in and for the city of St. Louis, Missouri.

“Your said petitioner further states that he was arrested by a police officer in the city of St. Louis, Missouri, on the twenty-seventh day of July, 1917, and brought by said police officer to a jail known as the Soulard District Police Station, in the said city of St. Louis, Missouri; that the said police officer then and there charged and complained that your petitioner had violated some ordinance of the city of St. Louis, Missouri; that your petitioner has demanded from the person in charge of said police station, a written copy of the charges so made by said police officer against your said petitioner, and that such copy has been refused.

“Your petitioner further states that, after said arrest, your petitioner tendered to the officer in charge of said police station a good and sufficient bond with a good and sufficient surety to insure the appearance of your said petitioner in the City Court No. 1 at such time or times as said cause may be' set for hearing; that the said police officer or official whose name is unknown to your petitioner, acting on behalf of the said William Young, Chief of Police, and the said Eobert' M. Hanna, Captain of Police, as aforesaid, demanded of your petitioner the payment of the sum- of fifty cents as a fee for the issuing and accepting of such bond; that your petitioner then and there refused to pay the ■said sum of fifty cents, or any other amount for the issuing of the said bond; and that your petitioner now remains in the custody of said William Young and said Eobert M. Hanna, Chief of Police and Captain as aforesaid, although your said petitioner has tendered and still continues to tender a good and sufficient bond with a good and sufficient surety for his appearance to answer to such charge or any charge which may be placed against him.

“Your petitioner further states that said imprisonment is illegal, in this, to-wit:

“That neither the said Chief of Police, the said Captain of Police, nor any other official or person acting for or on the behalf of the said Chief of Police, the said Captain of Police, nor the said Police Department, had or has any legal right or authority whatsoever to exact strSh fee of fifty cents, or any other fee for acceptance of such bond.”

On August 1, 1917, the respondents filed in the said court identical returns, that of respondent-Young being as follows:

“Now comes William Young, Chief of Police of the city of St. Louis, and for his return to the writ of habeas corpus served upon him on the 27th day of July, 1917, says that he is the duly appointed qualified and acting Chief of Police of the city of St. Louis; that on the 27th day of July, 1917, Albert Webers, petitioner herein, was arrested in the city of St. Louis and taken to the Third District Police Station, charged with having violated an ordinance of the city of St. Louis; that a 'short time after petitioner’s arrival at said station a man, whose name is unknown to respondent, appeared in his behalf and presented a bond in the sum of $200 for the release of said Albert Webers, but the said Albert Webers, petitioner herein, failed and refused to pay to the officer in charge of said station the sum of fifty cents, as provided • for by Section 3459 of the Revised Statutes of Missouri of 1909, as amended by the Session Acts of 1913, page 193, and which provides, in part as follows:

“ ‘Section 3459. — Fund, how created — police relief association. — This fund shall be created in the following manner: ... all percentages of rewards allowed to members of any police force under the regulations of its department, together with a fee of fifty cents for each and every bond taken by any police officer for the appearance of any person Charged with violating any city ordinance, which said officer is authorised then and there to collect: Provided, however, that no more than one bond fee shall be taken for any arrest, regardless of the number of charges which may be placed against the person arrested, all of which moneys herein designated shall be paid to the treasurer of said relief association. ’

“Respondent further states that he was ready and willing to release petitioner herein upon his giving a sufficient bond and complying with the statute above set forth, but that petitioner herein declined to pay over to the officer in charge of said station the sum of fifty cents as provided for by the aforementioned statute, and as a result of his failure to comply with the law petitioner was held in custody at said Third District Police Station until ordered by this Honorable Court to produce him before it, which was done on the 27th day of July, 1917.

“Wherefore; respondent, William Young, having made this his return to the writ of habeas corpus heretofore issued, and having shown to this court that petitioner herein was not illegally and unlawfully deprived of his liberty, prays that said writ be quashed and that petitioner be remanded to'the custody of respondent.”

On October 4, 1917, they filed motions to dismiss the petition on the ground that the Court of Appeals had no jurisdiction because the case involved ctirectly the construction of Article 4, Section 53, Clause 26; Article 4, Sections 46 and 47; and Article 10, Section 8, of the Constitution of Missouri; and is brought solely for the purpose of testing the constitutionality of Section 3459, Revised Statutes 1909.

The Court of Appeals being’ satisfied that the constitutionality of the section of the Revised Statutes of 1909 above referred to was involved in the ease, transferred it to this court.. The respondents have filed-a plea to our jurisdiction on the ground that the Court of Appeals, by reason of the constitutional question involved, had no jurisdiction of the proceeding, and that this court took no jurisdiction by reason of the transfer.

This is a proceeding in habeas corpus. It was instituted by petition addressed to the judges of the St. Louis Court of Appeals, and presented to Judge Reynolds of that court in vacation, who issued the writ, and, upon its return, transferred the matter to the court, which set a day for the hearing. Upon that day the respondents filed in that court a motion to quash the writ and dismiss the proceeding on the ground that the Court of Appeals was without jurisdiction in the matter, because the proceeding was instituted to test the constitutionality of an act of the Legislature, and involved the construction of certain provisions of the Constitution of the State. The court thereupon transferred the matter to this court. The petition and return are copied in the statement preceding this opinion, and will be referred to as necessary to a correct understanding of the questions presented. The fact that these questions stand upon the writ indicates the propriety if not the absolute necessity of noticing its nature as an element of their solution.

As has been said, and never questioned, “relief from illegal imprisonment by means of habeas corpus is not the creature of any statute, and ,the origin and history of the writ are lost in antiquity.” [12 R. C. L. 1180.] It is truly said by the same author that “while the various purposes for which the writ may be used apd the' proceedings thereon have been to some extent regulated by ancient English statutes and by local legislative enactments, the writ cannot be abrogated by a Legislature.” [Ibid.] It is founded in the broad principle that personal liberty, like life itself, can only be violated subject to the right to appropriate judicial inquiry. Our State Constitution (Sec. 26, Art. 2) recognizes its existence by providing that its privilege shall never be suspended. [Art. 2, sec. 26.]

The Legislature has confined its action principally to facilitating the use of the writ, so that wherever a judicial officer of a court of record may be found, its privilege is available. [R. S. 1909, sec. 2442.] This court has co-operated with the Legislature in extending these facilities. In State v. Millsaps, 69 Mo. 359, and later in State v. Wilson, 265 Mo. 1, it held that the judge of the probate court, a court of limited constitutional jurisdiction (Art. 6, sec. 24, Mo. Constitution), had jurisdiction in habeas corpus under the section of our statute above cited, and it follows that the judges of this court and of the courts of appeals have the same authority, derived from the same legislative source. [Lowe v. Summers, 69 Mo. App. 637.] Having obtained jurisdiction by the presentation of the petition and the issue of the writ, he may proceed to the determination of the right, regardless of the constitutional jurisdiction of his court, or the nature of the questions of law or fact involved. The power of the Legislature to regulate the use of this extraordinary remedy is as broad as is the beneficent purpose for which it exists. Its only confines are found in the limitations imposed by the organic law.

We have stated these principles at some length because 'they constitute the foundation upon which our jurisdiction rests. The writ is the most highly remedial of all that we have inherited through generations of a liberty-loving people, and all constitutional and statutory provisions intended to give it effect must be read and judged in the light of its purpose.

The jurisdiction of this court, except in cases otherwise directed by the Constitution, is appellate only. Its appellate jurisdiction has no reference to habeas corpus, in which there lies no appeal. There is no way provided either by constitution or statute in which it can acquire jurisdiction in such a proceeding otherwise than the use of the writ by itself or one of its judges. The authority of the judge to issue and hear it is limited, as we have already noted, to the vacation of the court, and it follows that upon its meeting it is returned into the court, as was done in the instant case with the writ of Judge Reynolds of the Court of Appeals. Had the Court of Appeals proceeded to final action in this case whether by discharging the petitioner or remanding him to custody, it would have been at an end. No appeal or writ of error or other proceeding could have given this court juridiction of that case.

There is another branch of the constitutional jurisdiction of the Supreme Court which occurs to us in this particular connection. It has “superintending control over the courts of appeals by mandamus, prohibition and certiorari.” In other words, it may compel them to proceed to exercise their jurisdiction, to prevent them from exceeding that jurisdiction, and to ascertain whether they are within their jurisdiction. We have confined the last definition to the ancient office of the writ of certiorari, because of the careful withholding of all appellate jurisdiction under whatever name it may he exercised. The Constitution permits and requires (Amendment of 1884, Section 6) that certain eases be certified to this court, but there is nothing in the provision that affects this case. It also authorizes (Id. see. 3) the Legislature to provide for the transfer of cases from a court of appeals to the Supreme Court, and in pursuance of this authority Section 3938 was enacted, providing that “in the event of any case being sent improperly on appeal or writ of error from a lower court to either of the courts of appeal when the same should have been sent to the Supreme Court” it shall be transferred to the Supreme Court. We note with what care the Legislature has limited this provision to cases sent to the courts of appeal on appeal or writ of error, and withholds the power to transfer in any other cases. It has no- application whatever to writs of habeas corpus sued out under the Habeas Corpus Act upon petition either to the Court of Appeals or to one of its judges.

We have carefully examined all the constitutional and statutory provisions to which our attention has been called, and some to which it has not, and they have all tended to strengthen our impression of the care which they exhibit to avoid any expression of an intention on the part of the people, speaking either through organic law or through legislation, to the effect that a proceeding of this character may be brought into this court by transfer from the Court of Appeals. It is unnecessary to consider in this connection our judgment in Moberly v. Lotter, 266 Mo. 457, in which a judgment of the Macon Circuit Court involving the title to land was brought on writ of error to the Kansas City Court of Appeals and transferred by that court to the Supreme Court. Our judgment was founded upon the reasonable theory that the. writ of error performed an appellate office in a cause of which this court had appellate jurisdiction. The same principle applies to the case of State y. Nortoni, 201 Mo. 1, which was prohibition from this court directed to the St. Louis Court of Appeals to prohibit it from proceeding by a similar writ to prevent the St. Louis Circuit Court from proceeding to adjudicate a cause appealable to this court. This class of cases have little relation to the question now before us. No appellate jurisdiction exists in habeas corpus. The act creates an emergency jurisdiction to facilitate the remedy through judicial agencies such' as may be found convenient to petitioner. Had there been, in this case, no superior judge or court present in St. Louis, he could have resorted to the probaté court in that city, which would then have had plenary jurisdiction, con-stitutional and otherwise, relating to his right. From its decision there would be no appeal, but should it refuse to grant the relief he might turn to a superior court or judge for another hearing.

This is in perfect harmony with the purpose of the act, which is intended to provide protection alike for the rich' and poor. Under its terms, the person detained in a distant county could only resort to the high constitutional jurisdiction of this court by paying the traveling expenses, not only of himself but of his custodian^ to the state capital, and he is compensated in some measure for this hardship by the permission to resort to any of the appropriate judicial agencies- of the locality in which he may be wrongfully detained. It is our duty, whenever our authority is properly invoked, to serve the constitutional and legislative purpose, but this cannot be done in the exercise of our appellate jurisdiction.

It follows from the foregoing suggestions that, in our opinion, we have acquired no jurisdiction in this proceeding. It is true that in the Nelson ease (251 Mo. 63), we accepted, sub silentio, jurisdiction in a similar case. No such question was raised, and it is indicated by a careful perusal of the record that this action was silently desired by all parties. We do hot think it safe to give permanent effect to a practice so established. The important constitutional rights and. principles involved in this case deserve at least some inquiry before becoming incorporated into our jurisprudence. For that reason we make no suggestion with reference to the important question involved in the merits of the proceeding.

The record is remanded to the St. Louis Court of Appeals without direction.

Bailey, G., concurs.

In the foregoing opinion of Brown, C., Blair, J., concurs.

BLAIR, P. J.

(concurring). — The Constitution (Sec. 12, Art. 6,) empowers the Court of Appeals to issue writs of habeas corpus. Section 5, Amendment of 1884 to Article 6, applies to appeals and writs of error only. The restrictions imposed by the sections mentioned do not apply in this case.

GRAVES, J.

(concurring). — The code as to habeas corptts is a code unto itself. The applicant for this beneficient writ can go to as many courts as he can find, provided he takes' them in gradation of authority. In other words, he can go from the lowest to the highest, commencing, of course, with the lowest. He does not go by an appeal, but by original right, and as an original case. Under this code the petitioner herein had a right to go to the St. Louis Court of Appeals, because by law such court has been given jurisdiction in such cases. If for any reason that court remanded him under the writ, he still had the right to come here, but this right was one by original application to this court, and not by certification from the Court of Appeals. There is no authority in law to certify in such cases. I concur thus separately because the opinion recognizes the rule in Moberly v. Lotter, 266 Mo. 457, and in that rule I do not concur, and will not concur until after this court again so says in a case wherein the same question is one at issue. The question there is not the question here, and there is, therefore, no call to approve the doctrine of the Moberly-Lotter case.

For this reason I concur in the result and in much of what is said in the opinion.

Bond, P. J., and Wood-son, J., concur in' these views.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    C. O. WHITE v. L. W. HERMINGHAUSEN et al., Appellants.
    Division One,
    September 16, 1918.
    1. SURVEY: Arbiters: Separate Report: Umpire. A stipulation between two adjoining claimants to a parcél of 'land that the dividing line between their respective tracts should be ascertained by two surveyors, one to be chosen by each, and that if they could not agree a third, named in the stipulation, “shall decide all matters of difference between said two surveyors,” did not require that the three should act together and join in one report, but the third could accept the parts of the line agreed upon by the two and proceed to survey the part not agreed upon by them, and file a separate report setting forth his finding. The stipulation did not require that there be one report concurred in by a majority, nor did it require that the third act jointly with the other two.
    2. -: -: -: Understanding of Parties. Where there is any ambiguity as to the meaning of a stipulation, what the parties did under it, without objection, with the full knowledge of each other, indicates its meaning.
    Appeal from Chariton Circuit Court.— Hon. Fred Lamb, Judge.
    Affirmed.

      O. G. Herminghausen and 8. J. G. G. Jones for appellant.
    (1) The surveyors having failed to establish the line in the form and manner provided in the stipulation, namely, by making a survey in accordance with the government field notes, their report is void, of no effect, is not binding, and should have -been rejected by the court. Squires v. Anderson, 54 Mo. 193; Ellison v. Weather, 78 Mo. 124; Lorey v. Lorey, 60 Mo. App. 420; Coffin v. German Fire Ins. Co., 42' Mo. App. 295; 3 Cyc. 674, 675. (2) The reports of the surveyors, being separate, individual and independent of each other, and no survey being concurred in by a majority of the surveyors acting under the stipulation, rendered their proceedings of no effect. Besides, the surveyors must act' together — that is, as a body. When the two selected by the parties failed to agree, and which failure necessitated Jacoby acting as a third, he could not act independently of the others. He could only act jointly with the others. 3 Cyc. 653, 655, 666.

      J. A. Collet for respondent.
    (1) The law favors adjustments of controversies and discourages litigation, and the proceedings of the arbitrators will be liberally construed and their award upheld if it can be done without doing violence to the submission. 3 Cyc. 673. (2) Appellant will be held to the observance of the terms of the stipulations signed by him. Dowling v. Wheeler, 117 Mo. App. 169; Stone v. Trust Co., 183 Mo. App. 261. (3) Jacoby was not acting as a member of the board of arbitrators, but was .an umpire chosen only to act in case of disagreement between members of the board of arbitrators, and it was proper for him to act alone as such umpire, and he had full authority in making his finding to decide all questions involved in the submission. 3 Cyc. 663; Home Insurance Co. v. M. Sehiff’s Sons; 103 Md. 164; Hartford Fire Ins. Co. v. Bonner Merc. Co., 56 Fed. 378; Lyon v. Blossom, 11 N. Y. S.up. Ct. 318; Tyler v. Webb, 49 ,Ky. 123; Havan v. Winnisimmet Co., 93 Mass. .377; Ingraham v. Whitmore, 75 111. 24.
   WOODSON, J.

This is a suit in ejectment, brought by the plaintiff in the circuit court of Chariton County, to recover a strip of land off the east side of the northeast quarter of Section Four, Township Fifty-five, Range Twenty, in said county, containing some twelve or thirteen acres.

The plaintiff, recovered a judgment for the possession of the land in the circuit court, and after taking the proper preliminary steps, the defendants duly appealed the cause to this court.

The controversy grows ont of the location of the dividing line between the parties’ farms. Prior to the institution of this suit repeated efforts were made by the parties to agree upon a dividing line, all of which came to naught, and- thereupon this suit was instituted. While this suit was pending the parties again attempted to settle their differences and in pursuance thereto, on September 19, 1914, entered into the following written stipulation:

“It is hereby stipulated and agreed by and between the parties to the above entitled cause that said cause shall be compromised and dismissed upon the following terms and conditions, to-wit:

“First: It is agreed that the true line between the Northwest Quarter of Section Three, Township Fifty-five, North, Range Twenty, West, in Chariton County, Missouri, the property óf C. O. White, and the North East Quarter of Section Four,- Township Fifty-five, North, Range Twenty, West, in Chariton County, Missouri, the property of O. C. Herminghausen, shall be ascertained and determined by a; legal survey to be made by two competent surveyors, one of whom shall be selected by plaintiff and the .other by defendants, and in the event that the two surveyors thus chosen should fail to agree,' then/the parties hereto agree upon C. E. Jacoby as the third surveyor, who shall decide all matters of difference between said two surveyors chosen by. the parties hereto, .and the line considered as the true line between the lands .of plaintiff and defendants, and the parties 'to this suit agree to stand to and abide by such survey. However, in making such survey, the same is to be made from the United States field notes.

“Second:' Both parties to this suit shall be notified of the time when said survey shall be made and shall have the opportunity to be present during said survey in person or by representative.

“Third: Said surveyors shall make and return to this court their report, showing the location of said line so made by them, and if said line does not coincide with the line as now marked by the fence between the aforesaid Northeast Quarter of Section Four and the Northwest Quarter of Section Three, they shall, by proper description, show the lands embraced between the true line so found by them and the line as now marked by said fence, and judgment shall be entered by this court in accordance with said report and shall be accepted by the parties hereto as a final judgment.

“Fourth: It is hereby further stipulated and agreed that this cause shall be transferred to the circuit court of Chariton County, Missouri, at Keytesville, and stand for final disposition at the November, 1914, term of said court at Keytesville.

“Fifth: It is further stipulated and agreed that the costs of making said survey, together with all court costs which have heretofore accrued in this suit, shall be divided and paid equally by the parties hereto.

“Signed in duplicate this 19th day of September, 1914.”

Under the terms of this stipulation, plaintiff elected A. F. Arrington, á civil engineer of Chariton County, Missouri, and defendants M. E. Bannon, a civil engineer of Fort Madison, Iowa, to make a survey of the land in dispute between the parties.

In pursuance to the terms of said stipulation the parties to the same and the said engineers agreed upon met on the premises and proceeded to make the survey of the line and land in controversy. Arrington and Bannon, having failed to agree upon the dividing line, each of them as provided for by said stipulation made out and filed in said case their separate report, which are quite lengthy, showing the points wherein they agreed and disagreed; and thereupon said engineers, in compliance with the terms of said stipulation, called .in C. E. Jacoby as the third engineer to decide the differences between them. After the latter had been called, the two reports of Arrington and Bannon were submitted to him and he was requested to proceed with the performance of the duties imposed upon him by the stipulation.

'When these stipulations were submitted to him, Jaeoby was uncertain as to his duties and how he should proceed, to discharge them. That is, he was uncertain whether he should get the board together and make a re-survey of the whole thing or whether he, acting by himself , and as umpire in the matter, should decide the questions not agreed upon by the other two surveyors. With these questions in his mind he took the matter up with both - parties to the suit and also with the court, and after consultation between the counsel representing both parties and the court, without dissent or disagreement Mr. Jacoby was advised that under the terms of the stipulation he should treat as fixed and settled all points on which the two surveyors, composing the board, had agreed, and should proceed to a settlement of all questions in dispute between said surveyors.

In view of the foregoing instructions, Mr. Jacoby proceeded to and did resurvey the disputed line, accepting as correct the portions of the surveys agreed upon by Arrington and Bannon, and made his own survey of the remainder of the line, the part- as to which they disagreed. In pursuance to this survey Mr. Jacoby made out his written report to the court, and filed the same in the case. This report covers ten pages of printed matter, besides two elaborate plats attached showing in detail the survey made by him. I omitted to state that the report of Mr. Bannon also had attached to it an equally elaborate plat showing the survey he made of the premises.

Jacoby, by his said report, found that the plaintiff was entitled to recover from the defendants, the following real estate, to-wit:

“Beginning at the corner common to Sections Three and Four of the Township line between Township Fifty-five and Fifty-six, Range Twenty, Chariton County; Missouri, thence running southerly in a straight line 2729.8 feet to the east quarter section corner of Section four, Township Fifty-five, Range Twenty, thence easterly a distance of 125 feet, to a’ point on the line of the present fence, marking the line between the Northeast Quarter of Section Four and the Northwest Quarter of Section Three, thence northerly along the line of the present fence 2729.8 feet, more or less, to the Township line between Townships Fifty-five and Fifty-sis, Range Twenty, thence west along said Township line 251.1 feet, to the point of beginning, containing in all'11.78 acres, more or less.”

In view of the position taken by defendants after the reports of Arrington and Bannon were- filed, it is important to state that the record shows that during the time Arrington and Bannon were making the survey provided for by the stipulation, appellant was at all times present actively participating in what was being done, and at no time did he object to the course that was being pursued by these surveyors or the means and methods employed by them in the making of this survey.

After the report of Jacoby was filed in the case, the defendants filed their objections thereto covering seven printed pages.

I mention the great length of the reports of the surveys, elaborate plats accompanying them, and the length of the objections thereto, for the purpose of showing why they are not set out in this statement of the case.

At the hearing of the objections to the reports much evidence was introduced, the material portions of which will be noted during the course of the opinion.

After hearing the evidence, the court found the issues for the plaintiff and rendered judgment for him for the possession, of the land before mentioned in the report of Jacoby.

Therefore, as previously stated, defendants duly appealed the cause to this court.

I. Counsel for defendants insist (quoting), that “the surveys having failed to establish the line in the form and manner provided in the stipulations, , . / namely, by making a survey in accordance with the Government field notes, their report is void, of no effect, is not binding, and should have been rejected by the court.”

If this instance.was supported by the facts of the case, it would be well taken, but unfortunately for the defendants the report on pages 9, 10, 11, and 12 of the abstract of the record shows with much particularity the manner and form in which the Government surveys were followed in running the true line between the two farms of the parties to this suit. If there was any particular deviation from Government field notes it has not been called to our attention and for that reason we assume there was no material departure therefrom.

This insistence is ruled against the defendants.

II. It is next insisted by counsel for defendants that the judgment of the trial court should be reversed for the reason stated:

“The reports of the surveyors, being separate, individual and independent of each other, and no survey being concurred in by a majority of’ the surveyors acting under the stipulation, rendered their Proceedings of no effect. Besides, the surveyors must act together — ¡that is, as a body. "When the two selected by the parties failed to agree, and which failure necessitated Jacoby acting as a third, he, Jacoby, could not act independently' of the others. He could only act jointly with the others.”

In support of this insistence we are cited to the 3 Cyc. 653, 655 and 666.

Conceding the corrections of the abstract legal proposition presented by this insistence, yet it has no application to this ease, for the .reason that the stipulation of the parties provides to the contrary. Its language is: “In the event that the two surveyors thus-chosen [Arrington and Bannon] should fail to agree, then the parties hereto agree upon C. E. Jacoby as the third surveyor, who shall decide all matters of differences between said two surveyors chosen by the parties hereto,” etc.

Those surveys show that Arrington and Bannon agreed upon certain parts of the survey and disagreed as to all others; and the record shows that the survey or Jacoby accepted the parts agreed upon by them, and proceeded to survey the remainder of the line not agreed upon by the two surveyors mentioned. This was in strict compliance with the provisions of the stipulation mentioned. Arrington and Bannon did not select Jacoby; he was chosen by the plaintiff and defendants and named in the stipulation as the engineer who should finally dispose of the differences that might arise, if any, between the former two. The parties to the suit had the same legal right to select Jacoby to decide the differences that might arise between Arrington and Bannon, as they did to- select the latter two in the first instance, and having done so his decision is binding and conclusive in the case. Moreover, the record shows that the plaintiff and defendants so understood the stipulation, for they were both present and participated in every thing that was done by all of the surveyors, and made no complaint whatever, thereby signifying their acquiescence in what they were doing. Had there been any ambiguity as to the meaning of the stipulation regarding this matter, then what the parties did thereunder, without objection, would have clearly shown their understanding of the same, as was said by Norton, C. J., in Scott v. Scott, 95 Mo. 300, 1. c. 318. “It has been said by an eminent chancellor: ‘Tell me what the parties have done under a deed, and I will tell you what the deed means;’ and in Patterson v. Camden, 25 Mo. 1. c. 22, it is said: ‘I know of no better mode of ascertaining the meaning of a writing- than is shown if all the parties acted on a particular meaning. ’ ’

The rule announced in those cases is particularly ' applicable to the case at bar, and is controlling herein.

We rule this insistence against the defendants.

III. Counsel for defendants present the last proposition decided in different language, in three other separate paragraphs of their briefs. "What we have ruled above is controlling upon these three propositions also.

Finding no error in the record, the judgment óf the circuit court is affirmed.

All concur.


author: BLAIR, P. J.

text:
    THE STATE ex rel. DUNKLIN COUNTY v. O. C. BLAKEMORE et al., Appellants.
    Division One,
    September 16, 1918.
    1. JUDGMENT: Entirety. There can be but one final judgment and it must dispose of all parties; but the common-law rule that judgments are entireties is effective only in exceptional cases.
    2. -: -: Suit on Bond: Corrected as to Non-Liable Defendants. Suit was brought by the county against a defaulting treasurer and his bondsmen. Two of the defendants, sued as heirs of a deceased surety, proved that said surety died before suit was brought on the bond, that his estate had been finally settled in the probate court before the trial of the case and that no claim against the estate was made by the State or county, and they asked the court to direct a verdict in their favor, which request was refused. After verdict they moved for a new trial; whereupon the court set the verdict aside as to them, and rendered judgment in their favor and against the other defendants. Held, that the county might have sued any or all of the sureties, since their liability was both joint and several, and judgment against those shown to be liable was proper, and it being conceded that said heirs were not liable the judgment is not to be reversed because the trial court sustained their motion for a new trial.
    3. BOND: County Treasurer: Drainage District Funds: Common Law Liability. The bond of a county treasurer, whose terms clearly include all county funds except school funds, the statute clearly requiring him to give bond for all moneys that shall from time to time come into his hands from any drainage district in the county, covers drainage district funds; and if not good as a statutory bond, because not conditioned exactly as prescribed by the statutes, is nevertheless good as a common-law bond, and covers drainage funds of districts organized after it was executed.
    4. -: -: Interest. By force of the statute (Sec. 3771, R. S. 1309) the county treasurer and his sureties are liable for interest on all moneys belonging to the county appropriated by him, from the day he went out of office, at least, ■ and not simply from the time suit was brought.
    5. -: •-: Application of Payments; Where the county treasurer did not deposit the funds in his hands separately, but mingled them all in depositing them, the trial court did not err in instructing the jury, in a suit on his bond, that if he was indebted to the county and paid it a less sum than the total due and made no application of the payment to particular funds, the county had the right to apply the payment as it deemed best, and the bringing of the suit upon the bond “is evidence which will authorize you to find there was an application of the payment to his indebtedness, if any, to all funds other than those covered by the bond sued on,” no question having been raised by the sureties at the trial as to whether the county court ordered the suit brought. , If the treasurer failed to direct the application of the fund, the county had the right to do so; and the bringing of the suit on the bond for the whole deficiency would have bound the county, as an application of payment, in any other proceeding, and was substantial evidence of the county’s intention to make the application to the funds mentioned in the instruction.
    6. --: -: Commingling of Funds: Estoppel. In a suit on a county treasurer’s bond it was not error to instruct the jury that if he failed to pay over a balance he owed, and if he mingled the several funds so they lost their identity and it became impossible to tell which, fund, if any, was short, “then defendants ate es-topped to deny that such shortage belonged to the funds covered by the bond sued on,” although, estoppel was not pleaded, there being ample evidence of the facts predicated in the instruction. Whatever estops the principal usually estops the surety; and where he testified that he had mingled the funds and if there was any shortage it was impossible for him to tell where it was, neither he nor his sureties can profit by his wrong.
    7. -: -: Good Character. Evidence of a county treasurer’s good character is not admissible in a suit on his bond to recover the amount of county funds appropriated to his own use.
    8. EVIDENCE: Specific Objection. Appellants cannot be heard to contend that certain evidence offered by them for a specific purpose and rejected was competent for other purposes.
    Appeal from Dunklin Circuit Court. — Hon. Frank Kelly, Judge.
    Affirmed,

      Fort & Zimmerman, Ely, Panlcey & Ely and Jones & Jones for appellants.
    (1) The court erred in overruling appellants’ sepa-, rate motion for new trial and appellants’ separate motion in arrest of judgment, after sustaining separate motion for new trial and separate motion in arrest of judgment of appellant’s co-defendants, Langdon Jones and Byron Jones, as there can only he one final judgment in a cause disposing, of all parties. Sec. 2979, R. S. 1999; Crow v. Crow, 124 Mo. App. 125; Miller, v. Bryden, 34 Mo. App. 698-; Eicbelmann v. Weiss, 7 Mo. App. 89; Holborn v. Naughton, 69 Mo. App. 195; Bremen Bank v. Umrath, 55 Mo. App. 49; State ex rel. v. Canterbury, 124 Mo. App. 246; Hughey v. Eyssell, 167 Mo. App. 564; State ex rel. v. C. & A. Railroad, 265. Mo. 716; Star Bottling Co. v. Exposition Co., 249 Mo. 639; Mann v. Doerr, 222 Mo. 19; 23 Cye. 816; Mahoon v. Colment, 51 Miss. 69; Crews v. Lackman, 67 Mo. 619. (2) The court erred in giving plaintiff’s instruction (a) because it authorized a recovery on the bond sued on for a shortage in drainage district funds which are not covered by the bond sued on. Sec. 5695, R. S. 1999; State ex rel. Maries Co. v. Johnson, 55 Mo. 82; City of Harrisonville v. Porter, 76 Mo. 369; State ex rel. Martin v. Harbridge, 43 Mo. App. 18. (b) Because said instruction authorized a recovery of interest from January 29, 1999, when there was Hio evidence of a demand made on the sureties prior to,the institution of this suit on April 15, 1911. McDonald v. Loewen, 145 Mo. App. 59; Burgess v. Cave, 52 Mo. 45; Benton v. Craig, 2 Mo. 198; 5 Cyc. 767. (3) There was no evidence of any order made by the county court for the institution of this suit and no evidence that the funds other than those covered by the bond sued on received the money actually turned over by Blakemore to his successor, or that the funds covered by the bond sued on suffered the loss of the shortage. Sec. 3781, R. S'. 1999; State ex rel. v. Forrest, 177 Mo. App. 251; Blades, v. Hawkins,-133 Mo. App. 337; Sanderson v. Pike County, 195 Mo. 604; Manpin v. Franklin County, 67 Mo. 329; Dennison v. St Louis County, 33 Mo. 171; Barnett v. Kemp, 258 Mo. 159. Said instruction assumed a fact . not proven, to-wit, that the county had authorized the bringing of this suit; and was in effect, directing a verdict for plaintiff and was a comment on the evidence. Sanderson v. Pike County, 195 Mo. 605; State ex rel. v. Morrison, 244 Mo. 211; Scheurer v. Rubber Co., 227 Mo. 357; Muncey v. Bevier, 124 Mo. App. 15; Crow v. Railroad, 212 Mo. 610; Barnett v. Kemp, 258 Mo. 159; Richardson v. Richardson, 166 Mo. App. 164. The doctrine of application of payments does not apply where the party attempting to invoke the doctrine is only acting in a fiduciary capacity for the benefit of others and does not own the several outstanding accounts in his own right. In re Switzer, 201 Mo. 88; State ex rel. v. Elliott, 157 Mo. 617; State ex rel. v. Branch, 151 Mo. 637. The responsibility of these sureties alises from their bond; not from what the county court might have done or not have doné. Tódd v. Boone County, 8 Mo. 437; Draffen v. City of Boonville, 8 Mo. 395. Application must be made before suit brought. Shortridge v. Pardee, 2 Mo. App. 366; Ponlun v. Collier, 18 Mo. App. 607; United States v. Kirkpatrick, 9 "Wheat (U. S.), 724; Johnson v. Thomas, 77 Ala. 369; Lazarus v. Freidheim, 51 Ark. 378; Fair-child v. Holly, 10 Conn. 184; Applegate v. Koons,, 74 Ind. 248; Robinson v. Doolittle, 12 "Vt. 249. (4) ~ No estoppel against defendants was pleaded, and there was no evidence introduced warranting the invocation of the doctrine of estoppel. Osborn v. Court of Honor, 152 Mo, App. 661; Loving Co. v. Hesperian Cattle Co., 176 Mo. 352; Chance v. Jennings, 159 Mo. 558; Throckmorton v. Pence, 1.21 Mo. 60; Blodgett v. Perry, 97 Mo. 273; Barnett v. Kemp, 258 Mo. 158. (5) The court erred in excluding testimony, offered by defendants of the previous good reputation for honesty and fair dealing of O. C. Blakemore. State v. Wilcox, 179 S. W. 479.

      George Smith, Jas. A. Bradley, J. P. Tribble, G. M. Edwards and Lee B. Ewing for respondent.
    There is no merit in appellants’ attack on the judgment. There was a judgment against appellants for the amount of the jury’s verdict. As to Langdon Jones and Byron Jones, the court sustained their motion for a new trial, then sustained their demurrer and rendered judgment in their favor against plaintiff. The rights of all the parties to the litigation were settled by the decree. It was final. Sec. 2090, R. S. 1909; Rock Island Implm’t. Co. v. Trust Co., 168 Mo. 256; Leslie v. Rhea, 9 Mo. 172; Rogers v. G-asnell, 51 Mo. 466. Even if the judgment were erroneous as to Langdon Jonpfs„mTpL Byion Jones, it was not void, and this court wouitffoe authorized to correct the error and enter final judgment here. State ex rel. v. Tate, 109 Mo. 265; Carpenter v. St. Joseph, 263 Mo. 712; Patterson v. Yancey, 97 Mo. App. 698. (1) This obligation of the bond was broad enough to, and did, include the receiving and disbursement of drainage district funds. It was a part of the duties of the county treasurer, as such treasurer, to receive and disburse the drainage funds. R. S. 1909, secs. 5599, 5603, 5604, 5622, 5634; Beer v. Wolf, 116 Mo. 184; State ex rel. v. Tittman, 134 Mo. 171; State v. Curtis, 67 Mo. App. 431; Martin v. Whiter, 128 Mo. App. 125; Calhoun v. Gray, 150 Mo. App. 600; Murphy v. Carlin, 113 Mo. 120; Good v. St. Louis, 113 Mo. 270; Webb v. Insurance Co., 134 Mo. App. 580; State v. Sappington, 68 Mo. 454. (2) Interest was recoverable upon the shortage of Blakemore at least from the time he went out of office, January 29, 1909. The law imposed the duty on him and his sureties to make settlement at that time. The bond in suit is their written contract to do this. No demand was necessary to be made upon the sureties in order to entitle the respondent to recover interest. Interest was recoverable from date of conversion. Sec. 3771, R. S. 1909; See. 7179, R. S. 1909; Clark County v. Hagman, 142 Mo. 430; State ex rel. v. Sandusky, 47 Mo. 381; McPhillips v. McGrath, 117 Ala. 549; 22 Cyc. 1543, 1544, 1551; Iiazlett v. Holt Comity, 51 Neb. 716. (3) In the absence of any directions from Blakemore as to the particular funds to be credited with his payment to his successor, the county had the right to make the application to the payment and the discharge of his indebtedness, to any fund it saw fit. There was no evidence in this case that of the particular money paid over by Blakemore enough did not belong to the school fund to discharge his obligations to that fund. State v. Smith, 26 Mo. 266; 37 Cyc. 1221; Pratt’s Appeal, 41 Conn. 191; Speck v. Comm., 3 Watts (Pa.), 324; Sandwich v. Fish, 2 Gray (Mass.), 298; Grafton v. Beed, 34 W. Ya. 72; Beadfield v. Shaver, 50 Me. 36, Zfi Am. Dec. 592. (4) The bringing of this suit on the ¿ttrticular bond was an election by the county to apply the payment made in January, 1909, to the discharge of his indebtedness on all other bonds. Haynes v. Waite, 14 Cal. 446; Starrell v. Barber, 20 Me. 457; Bobs v. Stickney, 36 Ala,. 482; Mayor of Alexandera v. Patten, 4 Cranch. 317. (5) In the court below, no question was raised that this suit was not instituted and prosecuted by Dunklin County, by its duly constituted and qualified officers. Nor was any question raised by appellants as to the county’s right to bring this suit. Therefore, appellants will not be heard to assert any such contention here. State ex rel. v. Sappington, 68 Mo. 456; Walker v. Owen, 79 Mo. 5¡67; Mechanic’s Bank v. Gilpin, 105 Mo. 21. (6) The criticism that no estopped was raised by the pleadings is without merit. It is only necessary to plead an estoppel when it is the basis of the suit. A party is never deprived of the benefit of an estoppel where it could not be pleaded, or where it arises out of a matter which is not the foundation of the suit. Long v. Lackawana Coal' Co., 233 Mo. 738; Tyler v. Hall, 106 Mo. 313; Thomas v. Smith, 51 Mo. App. 610; Coveil v. Western Union Tel. Co., 164 Mo. App. 630; Saginaw Coal Co. v. Connelly, 146 Mich. 395; Hayes v. Va. Mut. Protective Assn., 76 Ya. 225. (7) Even if it was necessary to .plead an estoppel, still if evidence tending to establish the estoppel is admitted without objection, necessity of pleading it is waived. Capital Lumber Co. v. Barth, 81 Pac. 995; Davis v. Davis, 26 Cál. 23; Weinstein v. National Bank, 69 Tex. 38; Hanson v. Buckner, 4 Dana (Ky.), 255; Standard Sanitary Co. v. Arrott, 135 Fed. 756. (8) By mingling moneys arising from funds covered by different bonds, and keeping all in one common account, so that it was impossible to tell to what fund the money abstracted by him belonged, Blakemore committed a wrong, and he and his sureties are estopped to take advantage of same. Broom’s Legal Maxims (8 Ed.), 234, 235; Argill v. Sarpy, 1 Mo. 720; Frank v. Caruthers, 108 Mo. 569; Western Construction Co. v. Stone Co., 80 N. E. 856; Taylor v. State to Use, 11 L. E.. A. 852; N. T. Mutual Ins. Co. v. Armstrong, 117 U. S. 591; Van Kirk v. Addler, 111 Ala. 104. (9) An act of the principal which estops him to set up a defense personal to himself estops the sureties on his bond from setting up the defense.’ Henry County v. Salmon, 201 Mo. 167; McCabs v. Eainey, 32 Ind. 309; Pattersons’ Appeal, 48 Penn. St. 345; Boone County v. Jones, 12 N. W. (Ia.) 995; Seaver v. Young, 145 111. 253, 48 111. App. 419.
   BLAIR, P. J.

This is an appeal from a judgment in a suit against the treasurer of Dunklin County and. the sureties on his bond. The treasurer’s books show a shortage of more than $14,000. Over $6000 of this occurred during his first term. He was re-elected in 1906, and went out of office January 29, 1909. The verdict was for the shortage during his second term and. interest from the date he went out of office. Three defendants were sued as the heirs.of a deceased surety. One of these was not served. The other two proved their ancestor died before suit wás brought and that his estate had been finally settled in the probate court before the trial of the' case. No claim against the estate was made by the State or county. These defendants, Jones by name, asked the court to direct a verdict in their favor. This was refü'se'd. After verdict agairist all defendants, they moved for a new trial. The court set aside the verdict as to defendants Jones, and then rendered judgment in their favor and against the other defendants. Other facts are stated in connection with the discussion of questions to which they are relevant.

I. It is argued the judgment must be reversed because the court sustained the motion of Langdon and Byron Jones for a new trial. Counsel are correct in the view that there can be but one final judgment and it must dispose of all parties. [Sec. 2097, R. S. 1909; Connelly v. Railroad, 169 Mo. App. 1. c. 281.] The final judgment in this ease does not offend this rule. Every party has judgment either for or against him. It is not contended the judgment in favor of Langdon and Byron Jones proceeded upon any erroneous view of their rights on the merits of their defense. The defense which was sustained applied, to no other defendant. It was made out by record proof or its equivalent. It is settled that if judgment had gone against these and they had appealed, this court, in case their non-liability appeared as a matter of law, must have revérsed the judgment -as to them regardless of the fate of the appeal of the rest. [Carpenter v. St. Joseph, 263 Mo. 1. c. 712.] In many cases this court affirms as to some appellants and reverses as to others. The common-law rule that judgments are entireties is effective only in exceptional cases. [State ex rel. v. Tate, 109 Mo. 1. c. 270 et seq.; Patterson v. Yancey, 97 Mo. App. 1. c. 698.] In this case the liability was joint and several. [Sec. 2769, R. S. 1909.] Respondent might have sued all or any of those it did sue. [Sec. 2772, R. S. 1909; State ex rel. v. Hoshaw, 86 Mo. 193.] Having sued all, judgment against those shown to be liable vjas proper. [Bagnell v. Railway, 242 Mo. 1. c. 20; Crews v. Lackland, 67 Mo. 1. c. 621.] Cases are cited in which all defendants were liable or none was so. These decisions are inapplicable. The case of Hughey v. Eyssell, 167 Mo. App. 564, is peculiar. The action was against two defendants. The trial court directed a verdict in favor of one of these. The jury ignored the direction and found generally for plaintiff. The trial court rendered judgment against one only and in favor of the one for whom it had attempted to direct a verdict. It was held defendants were jointly liable and subject to contribution, and the appealing defendant had “a right to have the question determined whether” the other was “to bear any share of the burden.” One judge dissented. In the case at bar this question was not presented to the trial court by any of the motions. It is unnecessary to discuss the soundness of the rule applied in the Eyssell case.

In the circumstances it cannot be held there is in this case any reversible error presented by this contention of appellants.

II. It is insisted the bond does not cover drainage district funds. The condition of the bond is that if Blakemore “shall faithfully discharge the duties of said office of treasurer of said county according ^aws °f State .of Missouri in reeeiving, handling and disbursements of all funds, except school funds of said county, school township and school district funds then this obligation to be void, otherwise,” etc.

Section 3752, Revised Statutes 1909, requires the county treasurer to give bond “conditioned for the faithful performance of the duties of his office.” Section 5605, Revised Statutes 1909, requires him to “enter into a separate bond for each drainage district organized in the county . . . conditioned for the faithful disbursement, according to law, of all such moneys as shall from time to time come” into his hands.

The bond in suit is not conditioned exactly as prescribed by either of these statutes. Nevertheless, its terms plainly include all 'county funds’except school funds. The obligation to give bond for all these moneys is clear. If not good as a statutory bond, it is good as a common-law bond. It contravenes no public policy, violates no statute, was voluntarily given, and secures, by its terms, moral and legal obligations of the treasurer. The statute provides no form and does not purport to nullify bonds conditioned otherwise than as prescribed. It is good to the full extent of its conditions. [State ex rel. v. O’Gorman, 75 Mo. 1. c. 378, 379; State ex rel. v. Sappington, 67 Mo. 1. c. 533; State ex rel. v. Horn, 94 Mo. 1. c. 165; Barnes v. Webster, 16 Mo. 1. c. 265.]

In the cases relied on by appellant it was held that a bond given in one capacity could not be resorted to in case the official defaulted in a distinct capacity.

It is suggested the bond could not cover drainage funds of districts organized after the bond was executed. We think this bond is to be held to have' been given in contemplation of whatever the law authorized to be done. Among these things was the organization of drainage districts, of the funds of which the treasurer would become custodian by force of the existing statute.

III. It is conceded the verdict is for the amount of the shortage during 1907-1908, with interest from the 29th of January, 1909, at which date Blakemore went out of office. It is contended interest did not begin to accrue until suit was filed. The statute (Sec. 3771, R. S. 1909) provides that the treasurer “at the end of his term . . . shall immediately make such Settlement, and deliver to his successor.. in office . . . all money belonging to the county.*’ In Clark County v. Hayman, 142 Mo. 1. c. 434, 435, it was held the failure to comply with this requirement was a breach of the bond and that no order of the county court requiring him to comply was necessary. In other words, the balance in his hands became due by force of the statute. As a consequence he and his sureties are liable for interest from the end of his term. It is unnecessary to decide whether, as is held elsewhere, he is liable for interest from thé time a cohversio'n oCCtirs.

IY. The treasurer did not deposit the funds separately. He mingled them all in depositing them. The court instructed, in effect, that if Blakemore was indebted to the county and paid it a sum less than the total due and made no application of the payment to particular funds, the county had the right to apply the payment as it deemed best, and the bringing of this suit upon the bond in question “is evidence which will authorize you to find there was an application of the payment to his indebtedness, if any, to all funds other than those covered by the bond sued on.”

It is urged (1) a record of, the county court is essential to show application of the payment; (-2) it is not shown the county court ordered this suit brought, and (3) the filing of suit does not tend to prove an application of the payment.

In case Blakemore failed to direct the application of the fund, the county had the right to do so. [State ex rel. v. Smith, 26 Mo. 1. c. 231, 233; Henry County v. Salmon, 201 Mo. 166, 167.] Appellants went through the trial without raising any question whether this action was ordered by the county court. . What they assumed throughout the trial, we must assume here. The bringing of the action for the whole deficiency on the bond involved would have bound the county, as an application of payment, in any other proceeding. [Haynes v. Waite, 14 Cal. 446, and cases cited.] It was substantial evidence of the county’s intent to make the application to the funds mentioned in the instruction. [Starrett v. Barber, 20 Me. 1. c. 461.] There is no question of “shifting responsibilities” by the application made. The bond was executed in contemplation of every applicable principle of law, the law of the application of payments as well as any other.

V. The court instructed, in substance, that if Blake-more failed to pay over a balance he owed, and if it was found he mingled the several funds so they lost their identity and it became.impossible to tell which fund, if any, was short, “then defendants are estopped to deny that such shortage belonged to the funds covered by the bond sued on,” etc.

It is contended (1) estoppel was not pleaded, and (2) was not proved.

•There was ample evidence of the facts predicated in the instruction. There was no objection to the’evidence. Though' not pleaded, estoppel was1' available. There was no opportunity to plead it and it was not the basis of the action. [Long v. Coal & Iron Co., 233 Mo. 1. c. 738,] Blakemore testified he mingled the funds and “If'there was any shortage it was impossible for me to tell where-it was;” i. e. in what funds. Ordinarily, whatever estops the principal, estops the sureties. Blakemore was in no position to assert the shortage was in the school funds. He had brought about a condition which rendered it impossible to determine where it was. To permit him to produce this condition and then defeat a suit against him on the ground that respondent could not prove something he had rendered impossible of proof, would be to permit him to profit by his own wrong. Such a defense is not permissible. Public policy forbids recognition of a defense which would make it possible for every county treasurer, by merely mingling funds, to defeat all liability on his bond. The instruction is not open to the objection made.

VI. Evidence of Blakemore’s good character was inadmissible. His character was not attacked in such sense, if in any, as to*' render such evidence competent. [Bank v. Richmond, 235 Mo. 1. c. 542, and cases cited.]

VII. Certain evidence was offered for a specified purpose. It was rejected. Appellants now contend it was competent for other purposes and it was error to exclude it. Having made their offer and secured a ruling on specific grounds, appellants cannot now convict the court of error by assigning reasons not given when the offer was made. [Fearey v. O’Neill, 149 Mo. 1. c. 473.]

VTII. Other questions are raised, but are. disposed of by the conclusions reached in preceding paragraphs.

Affirmed.

All of the judges concur; Bond, J., in result.