author: BOND, J.

text:
    JOHN J. BAGLEY, Administrator of Estate of BERNARD GLEASON, v. CITY OF ST. LOUIS, Appellant.
    Division One,
    June 2, 1916.
    1. COMPENSATORY DAMAGES: Instruction. In a suit for damages for the negligent killing of an unmarried man, where there is no evidence of aggravation, an instruction telling the jury to give only such damages as are “fair and just with reference to the necessary injury” to the beneficiaries, is in accord with the statute.
    2. -: Measure of Damages. Where there is no evidence that any of the beneficiaries received any pecuniary assistance from the deceased (an unmarried brother) during his life, all they were deprived of was a probability of a share of the estate left by him at his death, and the probable amount, of such accumulation is the matter to be left to the jury; and to arrive at an intelligent verdict in such case, they should calculate his probable earnings ior his expectancy of life, considering his age, ability, qualifications for labor and general habits, and deduct therefrom what would have been probably used and diverted by him to his personal expenses and cost of living, and thereby ascertain what is the present value of the residue.
    3. -: Deceased Beneficiaries: Suit by Administrator. In a suit for compensatory damages for the negligent killing of an unmarried man brought by his administrator, any F'.entable interest of his mother was abated by her death before the judgment, and should be left out of consideration by the jury.
    4. -: -: Excessive Verdict: . No Substantial Evidence. Deceased was not a skillful workman; was qualified for manual labor only as a teamster; his earning capacity was not over two dollars per day; he was fifty-five years of age; did not have steady employment; was addicted to drink and self-indulgence; and had never contributed pecuniary aid to his half brothers and sisters, who are the sole beneficiaries. Held, that a verdict for fifteen hundred dollars is not supported by any substantial evidence, and only a verdict for nominal damages should be permitted to stand.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. .

      'Beversed and remanded.

      Charles E. Daues and Everett Paul Griffin for appellant.
    (1) The demurrer to the evidence offered at the close of the plaintiff’s case and renewed at the close of the entire case should have been sustained, because the evidence in the case did not warrant a recovery for the reason that the action was brought under Secs. 5426 and 5427, B. S. 1909, which are compensatory statutes and not penal, and the evidence did not show that any surviving relative had sustained any pecuniary damage of any kind or character whatsoever. Troll v. Gas Light Co., 182 Mo. App-. 600; Kirk v. Bailroad, 177 S. W. 592; Hegberg v. Railroad, 164 Mo. App. 559; McGowan v. Steel Co., 109 Mo. 518; Knight v. Lead Co., 75 Mo. App. 541; Barth v. Bailroad, 142 Mo. 535; Schaub v. Bailroad, 106 Mo. 74; Honea v. Bailroad, 245 Mo.' 645 ; 2 Sedgwick on Damages, sec. 574-A, also sec. 579; Tiffany, Death by Wrongful Act (2 Ed.), secs. 170, 154, 159, 180. The weight of authority is against awarding nominal damages- where there has been no pecuniary damage. At most, nominal damages only could have been awarded plaintiff, but in Missouri and in many States nominal damages alone cannot be recovered in an action of this kind. Hearst- v. Detroit City By., 84 Mich. 539; Bailroad v. Cregan, 23 Ind. App. 1; Bailroad v. Drumm, 32 Ind. App. 547; Chicago & Alton By. Co. v. Shannon, 43 111. 338; Bhoads v. C. & A. By. Co., 227 111. 328; Anderson v. Bailroad, 35 Neb. 95; Burke v. Bailroad, 125 Cal. 364; Sorensen v. Bailroad, 45 Fed. 407; . Howard v. Canal Co., 40 Fed. 195. (2) The right of the mother to recover abated bn her death before the trial. In this action the administrator was suing not for the benefit of the estate of the deceased,'but as a trustee for the beneficiaries, and as the mother died before the trial and the action had abated as to her, the administrator conld recover nothing on her behalf. Gfilkeson v. Railroad, 222 Mo. 173; Bates v. Sylvester, 205 Mo. 493’; McMurray v. Railroad, 161 Mo. App. 131; Hauld v. Wallace, 109 Tenn. 346; Troll v. Gas Light Co., 182 Mo. App. 600; 17 Am. & Eng. Ann. Cases, p. 763. (3) Even if a recovery could have been had on behalf of the mother, the damages were grossly excessive, as there was no evidence in the case that deceased had ever contributed one cent to his mother, and no evidence on which any fair and just estimate of damages could have been based.

      Virgil Rule and Albert E. Hausman for respondent.
    (1) It is proper for the jury to award substantial damages when an adult -has been killed, and parent, brothers or sisters survive him. Hersted v. Railroad, 143 Mo. App. 623 ; Illinois Central v. Brown, 5 Wall. 90; Railroad v. Cutter, 19 Kan. 91; Grotekamp v. Harris, 25 Ohio St. .510; Murphy v. Wabash, 228 Mo. 56. (2) An instruction on measure of damages which is in the language of the statutes (as is the instruction in- the ease at bar) is good. If defendant thought it too broad it should have qualified it by offering one itself. Not having done so, defendant cannot complain. Barth v. Railroad, 142 Mo. 555; Dalton v. Refining Co., 188 Mo. App. 529; Tethrow v. St. Joseph, 98 Mo. 74; Browning v. Wabash, 124 Mo. 55; Baultger v. Scherp, 124 Mo. 87; Geisman v. Mo. Edison, 173 Mo. 654; Gentry v. Railroad, 172 Mo. App. 638; Kettlehake v. Casualty Co., 171 Mo. App. 528 ; Murphy v. Wabash, 228 Mo. 87. (3) In absence of evidence to contrary, the decedent is presumed to have exercised ordinary care for his own safety. Wack v. Railroad, 175 Mo. App. Ill; Buesching v. St. Louis, 73 Mo. 219. (4) The death of the mother before the trial did not prevent the recovery of substantial damages.
   OPINION.

I

BOND, J.

— This is a suit for ten thousand dollars for the death of Bernard Gleason, on July 7, 1909, alleged to have been caused by the negligence of the defendant, the city of St. Louis, in failing ^ peep Union Avenue in a proper state of repair at the place of the injury.

The plaintiff, John J. Bagley, is the administrator of Bernard Gleason, who died intestate at the age of fifty-one years, and was survived by his mother and four half brothers and sisters, the mother dying before the trial of the suit.

On the day of the injury, January 7, 1909, about one o’clock, Gleason, accompanied by one Lynch, left John J. Bagley’s place for the Hamilton Brown Shoe Company. They were driving Bagley’s team and were to get a load of empty shoe boxes and return with them to Bagley’s. On the return trip they stopped on several occasions, at which times, the .-evidence tends to show, they had drinks of intoxicating liquor. About seven o’clock that evening Lynch left the wagon and Gleason drove on alone.

Gleason was next seen about nine o ’clock that evening driving north on Union Avenue, by one Mrs. Bragg, who lived at 3019 Union Avenue. When the wagon got opposite her house she saw it suddenly upset and fall into a large ditch on the side of the street, killing the intestate.

At the place of the injury there was a gully or depression in Union Avenue, which was in an unimproved condition. Car tracks ran down the center of the street, both sides of which were for the use of vehicles. There was no pavement at this part of Union Avenue, which is a dirt street, lighted in the usupl manner in outlying districts of the city.

There was testimony tending to show that Gleason had frequently passed over this part of Union Avenue and was familiar with its condition and had knowledge' of the rut or depression which is claimed caused the injury. A-

At the time of his death Gleason, as far as it is shown,' had no property of any kind, either real or personal. .His earning capacity was anywhere from one to two dollars per day, and he had no steady employment.

The case was tried in the circuit court of the city of St. Louis, before a jury, which found in favor of the plaintiff in the sum of fifteen hundred dollars, from which an appeal was duly taken to this court.

II. This action is based on the statutory right of the administrator of a person whose death was caused by the negligence of another, to sue therefor and recover, not exceeding ten thousand dollars, what the jury may deem fair and just with reference to the necessary, injury resulting from such- death to the persons entitled to sue, in view of the mitigating and aggravating circumstances attending the wrongful act, neglect or default. [R. S. 1909, secs. 5426, 5427.]

In this case the deceased left a mother who died after the bringing of the suit but before the trial, which is now prosecuted for his half brothers and sisters. The statute provides for the inclusion of plaintiff and proper distribution of any recovery in cases like the present. [R. S. 1909, sec. 5425.].

The first contention of appellant is that since the statute on which the action is founded is purely compensatory, there was no proof of injury to the beneficiaries to sustain a judgment of fifteen hundred dollars.

The jury were instructed, in case they found for the plaintiff, to give only such damages as were “fair and just with reference to the necessary injury” to the beneficiaries. There being no elements of aggravation shown on the trial this instruction was in accordance with the statute. [Troll v. Gas Light Co., 182 Mo. App. 600, and cases cited.]

There was nothing in the evidence which tended to show that any of the beneficiaries received any pecuniary assistance from the deceased during his life; hence all they were deprived of was a probability of a share of the estate left by him at his death, and under the facts in this record the probable amount of such accumulation was. the only matter left to the jury to consider. To arrive at an intelligent verdict, they should have calculated his probable earnings for his expectancy of life, considering his age, ability and qualifications to labor, and general habits, and should have deducted therefrom what would have been probably used and diverted by him to his personal expense and cost of living, and should have ascertained the present value of the residue. [2 Sedgwick on Damages (9 Ed.), secs. 574a, 579; Tiffany, Death by Wrongful Act (2 Ed.), see. 159.] In forming their estimate the jury should have left out of view any loss of heritable rights on the part of the mother, since these abated by her death before the judgment (Gilkeson v. Railroad, 222 Mo. 173; McMurray, Admr., v. Railroad, 161 Mo. App. 133), and should have confined their view wholly to the lawful expectations of the present beneficiaries as next of kin.

The evidence of the earning power of the deceased is lacking in certainty and distinctness. He was not a skillful workman and seems only to have been qualified for manual work as a teamster, with an earning capacity of not over two dollars per day, nor was he addicted to habits of saving. Considering these circumstances, together with those relating to his age, life expectancy and living expenses and his self-indulgence in the matter of drinking, it must have taxed the optimistic view which juries are prone to take to conjecture that the present value of the residue which the beneficiaries might, inherit at his death, was fifteen hundred dollars. There was no substantial evidence in the record upon which to base that surmise, and nothing adduced in any part of the proof afforded a reasonable basis for such an estimate of his probable earnings or his estate at the end of his life expectancy. [Rhoads v. C. & A. R. R. Co., 227 Ill. 328; C. & A. R. R. Co., v. Shannon, 43 Ill. 338; Burk v. Arcata & Mad River R. R. Co., 125 Cal. 364; Anderson v. C. B. & Q. Ry. Co., 35 Neb. 95; Tiffany, Death by Wrongful Act (2 Ed.), sec. 170.]

The trial judge should have directed a verdict for plaintiff for nominal damages, only, under the facts shown in this record. There was a total failure of proof of any other damages. In such cases it is our duty to reverse and remand the c§use to the end that a proper judgment may be entered therein.

The judgment is, accordingly, reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: RAILEY C. PER CURIAM.

license: Public Domain

text:
    THE STATE ex inf. GEORGE P. WRIGHT, Prosecuting Attorney of Nodaway County, Appellant, v. EDWARD L. MORGAN et al.
    Division One,
    June 2, 1916.
    1. APPEAL: Motion for New Trial: Set out jn Record Proper. It is not sufficient to set out the motion for a new trial in the abstract of the record proper as a part thereof. The proper place for a motion for a new trial is in that part of the abstract containing the bill of exceptions, and it must either' be set out therein or a call for it inserted therein, else it cannot be considered on appeal, nor can any part of such alleged bill be considered.
    2. QUO WARRANTO: Record Case for Affirmance: Consolidated School. The judgment for defendants in a suit in the nature of a writ of quo wwranto to oust them as school directors, on the ground that the consolidated school district for which they essay to act is not a legal corporation, stands for affirmance on the record proper on appeal, where the • petition states a good cause of action and the answer sets out in detail all the proceedings tending to show that the district was legally established as required by the statute and that respondents were legally elected directors thereof, and where there is no bill of exceptions that eah beD considered, if the statute itself is constitutional.
    3. CONSOLIDATED SCHOOL LAW: Title. The title of the Act of 1913, Laws 1913, p. 721, providing for the organization of consolidated school districts, contains but one subject, and that is clearly enough expressed in its title, and the act does not violate section 28 of article 4 of the Constitution.
    4. -: Special. The Consolidated School District Law of 1913, Laws 1913, p. .721, providing for the organization of a consolidated school district by th„ voters of the community, is not a special or local law, now is it void on the theory that a general law applicable to the whole State might have been enacted. It is not confined to any county or township ' in the State. - Any community in the State, having the requisite area and number *bf children' of school age, mav be brought within its provisions. It is as general as is consistent . with its scope and design.,
    5. -: -: Local Option: Application. Nor is it unconstitutional on the theory that it is a special local option law. Whether the community, qualified to meet its prescriptions, will organize under it, is left to the option of its legal voters; but if the prescribed proportion vote for it, such vote does not create the law, but places the community so voting, within its provisions, and the organization then takes effect, and also the law, as it existed before the vote was taken.
    6. -: Neither Common nor City District. The Consolidated School District Law is not violative of section 11 of article 10 of the Constitution, on the theory that a district formed under it would be neither a country nor a city district.
    7. -: EquaJ Protection of the Law. The said law makes no discrimination as to persons in the territory where it takes effect, but applies alike to all persons within the territory for which it is adopted, and therefore it f'oes .not violate the Fourteenth Amendment, which declares that no State shall deny to any person within its jurisdiction the equal protection of the law.
    8. -: Liberal Construction. It is the policy of the Supreme Court, in construing statutes relating to schools and school • districts, to give them a liberal construction, and to uphold them whenever it can be done without violating the plain provisions of the Constitution.

      Appeal from Nodaway Circuit Court. — Ron. Williaim G. Ellison. Judge.
    Affirmed.'

      William G. Sawyers, George P. Wright and A. F. Harvey for appellant.
    (1) This act is local and special in that it provided that town or city school districts having an enumeration of two hundred children of school age shall not he included in any consolidated school district, thereby exempting from the provisions of the act large portions of the State embraced in city and town districts that can never have an opportunity to vote on consolidated schools, this being a Local Option Law. Local Option Laws must apply to the whole State. Otherwise they violate section 53 of article 4 of the Constitution. State ex rel. v. Railroad, 195 Mo. 245; Ex parte Smith, 231 Mo. 118. (2) There is no reason why a general law governing the consolidation of schools could not have been enacted which would apply to the whole State. No reason can be given for section 10833, R. S. 1909, and the Act of 1913, when one law could be enacted to cover all school district consolidations. Henderson v. Koenig, 168 Mo. 375; Hays v. Mining & Milling Co., 227 Mo. 288; State ex rel. v. Williams, 232 Mo. 74. (3) The Constitution, section 11 of article 10, only provides for two classes of school districts, viz., city or town districts and country districts. Taxes are levied to maintain schools with reference to those two classes of districts, only. In the case at bar one town district and four country districts are attempted to be consolidated into one district called a consolidated school district. It is evident that such a district is not a town district as contemplated by the Constitution, neither is it a country district as contemplated by the Constitution. (4) By reason of districts containing two hundred children of school age being excluded from the provisions of the Act of 1913 in question, portions of the State can be taxed to maintain consolidated schools while other portions of the State can never be so taxed. Also under the provisions of our State Constitution, section 11, article 10, to create a bonded indebtedness of the district a two-thirds vote is necessary. By the provisions of the Act , of 1913, in question, a consolidated district may be created by a majority vote and outstanding bonds of any district taken into the consolidation may be imposed on those who did not reside in the district voting them, by such majority vote for consolidation. Such are the provisions of the Act of 1913 in question. This is in violation of section 1 of the 14th Amendment to the Constitution of the United States in that it denies to all the citizens of the State an equal protection of the laws. State ex rel. v. Railroad, 195 Mo. 228.

      Cook, Cummins & Dawson for respondents.
    (1) The constitutionality of this statute has been, by this court, very thoroughly discussed, and conclusively decided in a very recent case. State ex rel. v. Gordon, 170 S. W. 892. (2) It is a statute applicable to all parts of the State that fall within its terms, as to population, giving to that population the right to organize under its terms and receive the benefits of the statute, if they so desire; and it is not bad because it limits its operations to districts having less than two hundred children of school age. State ex rel. v. Andre, 216 Mo. 630.
   RAILEY C.

— On July 7, 1914, George P. Wright, prosecuting attorney of Nodaway County, commenced a proceeding by quo warranto, in the circuit court of said county, against the above named defendants, charging that they were unlawfully and wilfully usurping and exercising the functions and prerogatives of directors of school districts numbered 141, 160, 161, 162 and 181, in said county, in the way and manner aforesaid, under the pretense and claim that the above mentioned school districts were embraced in and constitute the alleged Consolidated District No. 162 as aforesaid; and that said respondents have been, and now are, unlawfully and wilfully acting in concert and together, as a board of school directors, in the territory, embraced in the school districts aforesaid and are causing taxes to be assessed and levied, teachers to be employed, schools to be run, etc., and are performing all acts and things required and permitted to lawful school directors;' all of which is wilfully and unlawfully done, to the injury and detriment of the State of Missouri.

On October 12, 1914, respondents filed their return setting out in detail all the different steps and proceedings to establish Consolidated School District No. 162, and tending to show, that they were elected as directors in said consolidated district, as required by law. The facts stated in the return, if.true, show a substantial compliance with the law, in regard to the formation of said district and the election of respondents as directors therein.

Eelator filed a reply, putting in issue the facts pleaded by respondents in their return; and attacked the validity of the Act of 1913, Laws 1913, page 721 and following, upon the alleged grounds, that said act violates section 28 of article 4, of our Constitution, in that, it contains more than one subject, which is not clearly expressed in the title; and that the title to said act is misleading and not broad enough to cover the subjects attempted to be embraced therein. He further charges that said act violates section 53 of article 4 of our Constitution, in that, it is local, special, and applies only to a part of the State; that a general law could be made applicable to the whole State; that it is a Local Option Law, and exempts from its operations portions of the State; that the attempted classification violates section 11 of article 10 of onr Constitution. He farther alleges that said act violates the 14th Amendment to the Constitution of the United States, in that, it denies^ to the eitizens of the State the equal protection of the laws; and that the enforcement of said act would abridge the privileges and immunities of citizens of the United States and of the State of Missouri.

The court, on the 19th of December, 1914, after hearing tine evidence and argument of the counsel, found th© issues in behalf of respondents and entered judgment in accordance therewith. The cause was duly appealed by relator to this court.

We have simply set out heretofore the substance of £he petition, answer, reply and judgment, as constituting the record proper; and have not set out any of tine evidence and matters of exception, because the alleged bill of exceptions mentioned in the abstract of record does not contain a motion for a new. trial, nor isfere any call therein for same. This matter will be «¡msidered more fully in the opinion to follow.

L Appellant has set out as a part of the record proper his motion for a new trial, the ruling of the tmrrl thereon, and alleged that an exception was taken t© the action of the court in overruling same. Turning, however, to the abstract of record, and inspect-tag the contents of the alleged bill of excep- ~ ° ° A tionts, me find no motion for a neto trial set out, imr is there any call made there for said moiim.

Appellant, in his abstract of record, where matters ©ff exception are relied on, must show by the record proper that Ms motion for a new trial was filed within the time required by law. He complied with this re(fttÍTeam®nt, as shown by the record. He is likewise required, in his abstract of record, to set out as a part of the hSl of exceptions the motion for a new trial, or by appropriate language call for same therein.

In the case at bar, the alleged bill of exceptions does not contain any motion for a new trial, nor is there any call therein for said motion. Hence, under the repeated rulings of this court, we can only consider the record proper. [Haggerty v. Ruth, 259 Mo. l. c. 222-3; City of St. Louis v. Young, 248 Mo. l. c. 347-8; Realty Co. v. Brewing Co., 247 Mo. l. c. 31-2; Blanchard v. Dorman, 236 Mo. l. c. 438-9; City of St. Louis v. Henning, 235 Mo. l. c. 51; Betzler v. James, 227 Mo. l. c. 387; Hays v. Foos, 223 Mo. l. c. 423-4; State ex rel. v. Adkins, 221 Mo. l. C. 120; Groves v. Terry, 219 Mo. l. c. 597-8; Gilchrist v. Bryant, 213 Mo. l. c. 443; Reed v. Colp, 213 Mo. 577; Stark v. Zehnder, 204 Mo. 442; Harding v. Bedoll, 202 Mo. 625; State v. Ruck, 194 Mo. 416; State v. Revely, 145 Mo. 660; State v. Hand ley, 144 Mo. 118; State v. Wray, 124 Mo. 542; State v. Griffin, 98 Mo. l. c. 674, and cases cited.]

There are numerous other cases decided by this. court, as well as the various courts of appeals announcing the same rule of law. This court has endeavored to impress upon counsel throughout the State the necessity of observing this plain requirement. If members of the bar are heedless in failing to observe the law, in respect to these matters, wjth so many decisions re-' quiring it, they should not expect the court to overlook such errors, when they are patent upon the fact of the record.

II. The petition states a good cause of action, and the answer, as heretofore stated, sets out in detail all of the proceedings, tending to show that Consolidated School District Number 162 was legally established, as required by the Act of 1913, pages 721 and following; and that respondents were legally elected to fill the positions, from which they are now sought to be ousted by relator. The reply put in issue the allegations of the answer, and attacked the validity of the above act upon the grounds heretofore set out in the statement.

On the record thus presented, the trial court, after hearing the evidence and argument of counsel, found the issues in favor of respondents and entered judgment in accordance therewith. As the trial court, on the facts, has found in favor of respondents; and as we are precluded from reviewing same, because no motion for a new trial appears in the bill of exceptions or is called for therein, the judgment below must stand affirmed, unless the Act of 1913, at pages 721 and following, be held as unconstitutional upon one or more of the grounds set out in the reply.

III. The reply challenges the constitutionality of the Act of the General Assembly of Missouri, approved March 14, 1913, and reported in Laws 1913, at pages 721 and following, on the ground, that it is violative of section 28 of article 4 of the Constitution of Missouri, in that it contains more than one subject, which is not-clearly expressed in the title, and because the title to said act is misleading and not broad enough to cover the subject attempted to be embraced therein.

We are relieved of the necessity of considering this question on account of the recent ruling of the Court in Bane in the case of State ex rel. Clark v. Gordon, 261 Mo. 631. Judge Woodson, in speaking for the above court, in his opinion, set out various sections of the act complained of, and in direct terms held that said, act did not violate the provisions of section 28 of article 4 of the Constitution aforesaid. He cites, in his opinion, a large number of authorities sustaining the conclusion reached by him in that respect. In discussing other constitutional questions raised, in respect to said act, Judge Woodson, on page 649, said:

“This act is progressive and in keeping with the forward movement of the State and country at large —bringing home better schools and higher grades of instruction, which the ordinary public schools do not teach, and are incapable of teaching on account of the lack of means to construct appropriate buildings and to employ competent teachers. By this scheme of the Legislature thousands of our children can and will be instructed in the higher branches of education not taught in the ordinary school, who are unable to go to city high schools, colleges and universities away from home.
“The design of the Legislature is good and wise, and before the act conferring this beneficence upon the youth of the country should be declared invalid, the reasons therefor should be so clear and unanswerable that no reasonable doubt should exist as to its unconstitutionality ; and after a careful reading.*of the briefs of the respective parties and having investigated the authorities cited, we are of the opinion that no such reason has been pointed out.”

The language above quoted fully disposes of the foregoing question, and is alike applicable to the other constitutional questions hereafter discussed.

IV. It is charged in the reply that said act is unconstitutional because it is violative of section 53 of article 4 of the Constitution of Missouri, in that it is local and special, and applies to only a part of the State; that a general law can be made applicable to the whole State, etc. We are of the opinion, that there is no merit in this contention. The above act is not confined to any county or township in the State. A consolidated school district may be formed anywhere in the State, if the terms and conditions prescribed by the statute are followed. *

This same class of questions has been often brought before our courts in different forms. At an early day, the Legislature passed what was generally known as a Local Option Law, in respect to the sale of intoxicating liquors. [Laws 1887, p. 179.] It was vigorously assaulted for many years in the courts of the State, and, among other things, the charge was made that it was unconstitutional. In the case of State ex rel. Maggard v. Pond, 93 Mo. l. c. 621, Judge Norton, speaking for this court, said:

“Under the rule thus laid down, the contention of the relator, that the act in question is a local or special, and not a general law, is without foundation. The act in question applies to all the counties in the State as a class, and to all incorporated cities or towns as a class having a population of twenty-five hundred or more inhabitants. All the counties in the State and all cities and towns with the requisite population, may, by complying with its terms, come under its provisions. ’ ’

After an elaborate review of the above law, it was sustained by the court.

The construction of the above law afterwards came before this court in Ex parte Handler, 176 Mo. l. c. 388-9. On page 389, Judge Gantt, in behalf of Division Two, said:

“.The very words ‘local option’ imply the grant of the right to one locality to adopt and another to decline to avail itself of the law. Moreover, it is no objection to a law that it does not operate upon every citizen alike; it is sufficient if it operates equally upon all who in all parts of the State come under the same circumstances and conditions. [Gordon v. State, 46 Ohio St. 607; Santoro v. State, 46 Ohio St. 607.]”

Judge Gantt, in presenting the issue involved, on page 388, said:

“Addressing ourselves now to the two propositions which counsel now urge in addition to those decided in the Maggard-Pond case, the first is that it violates the constitutional provision that all laws of a general nature shall have uniform operation throughout the State; and inasmuch as a different penalty is imposed by the Local Option Law for selling and giving away intoxicating liquors from that inflicted for the sale or giving away of such liquors in other portions of the State, it necessarily offends the principle of uniformity. ’ ’

All of the objections urged against the constitutionality of said act were again overruled in,the Handler case.

In State ex rel. Dome v. Wilcox, 45 Mo. 458, the relator instituted proceedings in the nature of a quo warranto in the Livingston Circuit Court, to determine the right of respondent to the office of school director in the town of Utica; it being a school corporation, organized under chapter 47 of the General Statutes 1865. Eelator sought to oust respondent from office on the ground that said chapter of the above law of 1865 was unconstitutional. Judge Wagner, on page 461, said:

‘ ‘ A question of more grave and paramount importance to the people of this State could hardly he brought in this court. Nearly every town and village hap organized under the law referred to. Acting in accordance with its authority, they have built schoolhouses, employed teachers, incurred debts, and systematized and put in operation rules and regulations, which have greatly redounded to our educational interest. Before a court would he justified in pronouncing against this system, and producing the inextricable confusion which must necessarily follow, it should furnish reasons for its decision, at once clear, cogent, and convincing.” '

The same learned judge, on page 465, said:

“Special statutes relate to certain individual classes or particular localities. Had the act applied to a certain specified town or a single corporation, it would have been special; but such is not the case. It is co-extensive with the State, and its influence is felt in every county and almost every township. It is conceded that it does not include in its- operation every individual nor extend to all the territory, but that is not required. It is as general as is consistent with its scope and design, and no law more general in its nature could be framed to effectuate and carry out the object in view. This is also a sufficient answer to the point raised, that the act is in oppositio'n to the fourth section of the eighth article of the Constitution.”

The above observations of Judge Wagner apply with equal force to the law under consideration here. Similar laws have been passed in this State relating to other subjects which have likewise been sustained.

In 1873 this court was called upon by the General Assembly to express its opinion as to whether or not a township organization law could be legally passed under the Constitution of 1865. Said opinion (Opinion of Supreme Court Judges on Township Organization Law, 55 Mo. 295), on page 297, reads as follows:

“It is a general law made for the whole State, and by the terms of the act itself took effect from and after its passage. Every county in the State may avail itself of thu privileges offered by this law by a majority vote of its people. It is left to the option of the coum ties whether they will organize under the law or not. If a majority vote for it, such vote does not create the law, but places the county so voting within its provisions, and the organization then takes effect, and also the law, as it existed before the vote was taken. The law does not delegate, nor was it the intention of the lawmakers to delegate, legislative authority to the counties. Unless the counties avail themselves of the right to organize they will remain as they were, unaffected by any of the provisions of this statute. It is unnecessary to elaborate this point or to write a lengthy political essay on a subject, which, it seems to us, needs no illustration. It is sufficient to say that we are satisfied that no provision of the Constitution has been violated in the passage of this law. ’ ’

This opinion was signed by Judges Adams, Wagner, Sherwood and Ewing.

We likewise have in this State, and have had for many years, a statute authorizing any county or township, under the circumstances named therein, to adopt a stock law. The same objections were urged to this class of legislation, as are urged in the present case; but this court uniformly held-that the different classes of laws heretofore discussed, are neither special, nor do they violate any provision of the Constitution.

We are of the opinion, that the above contention of relator is without merit, and it is overruled.

V. It is next insisted that the above act is in violation of the provisions of section 11 of article 10 of the Constitution of Missouri, in that such a district would be neither country nor city district. We are of the opinion that there is no 'merit in this contention. Section 10775, Revised Statutes 1909, classified the different school districts of the State and there is nothing in the above Act of 1913 which, in any manner, conflicts with the section of the Constitution above referred to. This contention of relator is likewise overruled.

VI. It is contended by appellant that the above act violates section 1 of the Fourteenth Amendment of the Constitution of the United States, in that it denies to citizens of the State equal protection of the laws, etc. This same constitutional question was put forward in the attack made on the Local Option Law of this State, as will be seen by reference to the opinion of Judge Black in Ex parte, Swann, 96 Mo. l. c. 51-2, in which he says:

“A further objection to the statute is, that it contravenes section one of article fourteen of the Constitution of the United States, which declares that no State shall ‘deny to any person within its jurisdiction the equal protection of the law.’ Our statute, which allows the State fifteen peremptory challenges in capital cases in cities having over one hundred thousand inhabitants, whilst elsewhere the State is allowed only eight peremptory challenges, was assailed in Hayes v. Missouri, 120 U. S. 68, as being in conflict with the above prohibitions upon state legislation. The Supreme Court of the United States then said: This. amendment ‘does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall he treated alike, under like circumstances and conditions, both in the privileges conferred and the liabilities imposed. ’ And again it was said in Missouri v. Lewis, 101 U. S. l. c. 30, speaking of the same constitutional provision: ‘It contemplates persons and classes of persons. It has not respect for local and municipal regulations that do not.injuriously affect or discriminate between persons or classes of persons within the place or municipalities for which such regulations are made.’
“The law in question applies alike to all persons within the territory or locality where it is adopted. There is no discrimination whatever in favor of or against persons or classes of persons within such territory. They are all treated alike. It is true the penalties for violating this law are not the same as those for violating the dram-shop law. They are, indeed, not the same offenses. In the one case the offense is the violation of a law which allows and regulates traffic in intoxicating liquors as a beverage, and in the other ease the offense is for selling such liquors where the sale of it is prohibited by law. But aside from this the law makes no discrimination as to persons in the territory where it takes effect, and that is enough to show that it in no way contravenes the section of the Constitution of the United States before quoted.”

We do not deem it necessary to consider the constitutionality of the above act further. In no uncertain language, the following recent cases have upheld the validity of the proceeding thereunder, to-wit: State of Missouri ex inf. Simrall ex rel. Clements et al. v. Clardy, 267 Mo. 371; State of Missouri ex rel. Hilbert v. Glaves, 268 Mo. 100; State ex rel. v. Gordon, 261 Mo. 631.

It has been the policy of this court, in construing the statutes relating to schools and school districts, to give them a liberal construction, and to uphold the same whenever it can be done without violating the. plain provision of the law.

Having decided the constitutional question adversely to relator, and no error having been found in the record proper, the judgment of the trial court is affirmed.

Brown, C., concurs.

PER CURIAM.

— The foregoing opinion of Railey, C., is adopted as the opinion of the court.

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


author: BLAIR, J.

text:
    WALTER DONOVAN, Appellant, v. JAMES H. GIBBS.
    Division One,
    June 2, 1916.
    1. ATTACHMENT: Against Nonresident: Dissolution Upon Answer. Section 2298, Revised Statutes 1909, authorizing attachments against non-residents without bond, but declaring that “when any writ of attachment has issued against a nonresident and the plaintiff has given no bond, the attachment shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case,” does not mean that the Sling of an answer to the merits, without anything more, without even an application to or any action whatever by the court, of itself alone dissolves the injunction.
    2. -: -:-- — : Meaning of "Of Course.” The words “of course” used in said statute and similar statutes mean any action or step taken in the course of judicial proceedings which will be allowed by the court upon mere application without inquiry or contest, but they imply some action by the court, upon motion or other request.
    3. -: -: Answer Filed After Submission of Cause. After the non-resident defendant in the attachment, appearing solely t~ question the jurisdiction, had filed a motion, an alias summons was served on the defendant, who was temporarily in the county, and the cause was continue! to he heard at the next term. At that term, and on November 29th, he f-led a general denial by way of answer, no ruling having been made or asked on his plea to the jurisdiction, and no leave to file his answer having been given or asked. Judgment was rendered on November 30th, and the record of that day recites: "Now on this day this cause coming on to be heard, the judge of this court having previously heard the evidence of witnesses and' the argument of counsel, and having taken the case under advisement, finds,” etc., Held, that it must be presumed that the trial court acted in accordance with the law; and as the record recites that the cause was taken under advisement some time prior to the rendition of judgment, it will be presumed, in aid of the judgment, in the absence of a recital of the precise date on which it was taken under advisement, that it was under advisement when the answer was filed on November 29th, and hence the filing of the answer without leave and without setting aside the prior submission could not render applicable the proviso of Sec. 2298, R. S. 1909, even though it could be held to mean that a filing of an answer to the merits in an atta°hment against a non-resident in whicli no bond has been*given of itself alone dissolves the attachment.
    Appeal from Dent Circuit Court. — Mon. L. B. Wood-side, Judge.
    Affirmed.

      G. C. Dalton for appellant.
    (1) Under See. 2298, R. S. 1909, just as soon as the defendant entered his voluntary appearance and filed his answer to the merits, the writ of attachment was ipso facto dissolved; the declaration of law requested by ’ the plaintiff should have been given by the court. It defines the phrase “as of course” and gives it almost the same meaning as the phrase “ipso facto .” The definition of this phrase is the pivotal question in the case at bar. “The phrase ‘of course’ is defined as follows: That which may be done in the course of legal proceedings without making an application to the court.”— Bouvier’s Law Dictionary. See, Stoddard v. Treadwell, 29 Cal. 281. The meaning of the statute is clear. It is expressly stated in this statute that if plaintiff, without giving bond, brings his action, in attachment, against a non-resident defendant, entering his appearance and filing his answer, such attachment shall be dissolved. (2) The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. This intention must be the intention expressed in the statute. 36 ’ Cyc. 1106 (2), 1107; Thomley v. United States, 113 U. S. 310; Grist v. Construction Co., 224 Mo. 369; Diedrick v. Eose, 228 HI. 610. (3) A plaintiff could not sue a non-resident in attachment, without giving bond, under Sec. 370, E. S. 1899. This section was so amended by Laws of 1907, p. 69, as to enable plaintiff to sue a non-resident,, in attachment, without bond; and this proviso was added by this amendment. This provision is the last expression of the legislative will. It is a well settled principle of law that the last expression of the legislative will is the law. In case of conflicting provisions in the same statute, the last enacted prevails. 36 Cyc. 1130, 1151. A proviso is a clause engrafted on a preceding enactment for the purpose of restraining or modifying the enacting clause, or of excepting something from Its operation which otherwise would have been within it. 36 Cyc. 1162; Wayman v. Southard, 10 Wheat. (U. S.) 130; Patterson v. Winn, 24 U. S. 380; DeG-raff: v. Went, 164 111. 485; State ex rel. v. St Louis, 174 Mo. 125.

      W. P. Elmer for respondent.
    (1) The term “as of course” means as a matter of right, which needs no investigation hy the court as to the truth of it. 6 Words and Phrases, p. 4914. (2) Sec. 2302, R. S. 1909, provides that in certain cases the court may order the attachment plaintiff to execute a new attachment bond. Section 2303 provides that if the plaintiff fails to comply with the order, the suit shall he dismissed at his cost. In construing these two sections, this court held that a proper notice and motion and order were necessary to dismiss the suit. Jasper County v. Chenault, 38 Mo. 357; . Englehart Co. v. Burrell, 66 Mo. App. 117; State ex rel. v. McKeon, 25 Mo. App. 667. (3) Section 2341 provides how attachments shall be dissolved. This section was not amended in 1907 to show the legislative intent of the amendment to section 2298, hut the method of the dissolution as pointed out in section 2341 was applicable to attachments without bond, as provided in section 2298 where the State or the county was a party. An order of court is necessary to dissolve an attachment for the. causes enumerated in . section 2341 and when the defendant complies with the requirements of section 2341 the attachment should he dissolved as a matter of course. The only difference between the requirements of section 2341 and section 2298 would be the sufficiency of the affidavit and bond, which are to he approved hy the court, and when they are approved the defendant has as much right to have the attachment dissolved as the defendant under section 2298 without bond would have had on entering his appearance and filing his answer to the merits. (4) Section 2342 provides that when an attachment shall be dissolved, all proceedings touching the property and effects attached shall be vacated. This section c'ertainly relates to a dissolution as provided in section 2298, although, enacted prior to the amended section. This section certainly contemplates and presupposes that some action would be taken by the court ordering and directing that the attachment be dissolved. Such a construction as is contended for by the appellant on section 2298 would make the attaching officer the absolute judge as to whether' he. should hold or release attached property.
   BLAIR, J.

— This is a suit under section 2535, Revised Statutes 1909, to adjudge and quiet title to lot two of the northwest quarter and the north half of lot two of the southwest quarter of section 31, township 35 north, of range 5 west, in Dent County. The Dent Circuit Court rendered judgment for defendant, and this appeal followed. B. P. Vickery is the agreed common source of title. Appellant claims through mesne conveyances from B. P. Vickery, having obtained a deed in September, 1909. Respondent claims title under deed from Stephens and. Horsman, whose title depended upon the validity of a sale under judgment- in a suit by attachment they began against B. P. Vickery November 5, 1908. The ground of attachment was Vickery’s non-residence. No attachment bond was given. Service was had by publication. On April 21, 1909, Vickery, appearing solely to question the jurisdiction, filed a motion in the cause. On April 22,1909, alias summons was served in Dent County on Vickery, who was temporarily there. The cause was continued and was heard at the nest term of court. On November 29, 1909, Vickery filed a general denial by way of answer, no ruling having been had or asked on his plea to the jurisdiction, and no leave to file answer having been asked or given so far as the record shows. On November 30, 1909, the court rendered judgment in the attachment proceedings, reciting: “Now on this day this cause coming on to be heard, the judge of this court having previously heard the evidence of witnesses and the argument of counsel, and having taken the case %mder advisement” (italics ours) “finds the issues for the plaintiffs in the sum of two hundred dollars.” Then follows an ordinary judgment by attachment declaring a lien upon the land attached in that suit and involved in this. Vickery called neither his plea nor his answer to the attention of the court in that case, nor did he move to dissolve or ask dissolution of the attachment or vacation of the attachment proceedings. Neither did he appeal from the attachment judgment. Sale was regularly made under that judgment, and Stephens and Horsman purchased the land and took possession. Subsequently, for full price, they sold to defendant, who took possession and thereafter expended nearly two thousand' dollars in money and labor improving the land, erecting a . dwelling, barns, fences, digging wells, clearing, making a pond, etc. When attached the land was subject to a deed of trust for five hundred dollar^ which Stephens and Horsman paid and which sum appellant does not offer to repay. April 19, 1909, some months after the attachment suit was begun and sometime after service by publication was had, B. P. Vickery and wife executed a deed, recorded April 23, 1909, purporting to convey the attached property to Wm. B. Vickery, who lived in the same town in Illinois with B. P. Vickery. May 3, 1909, Wm. B. Vickery and wife conveyed to Anna* B. Vickery, also of the same town. September 8, 1909, Anna B. Vickery and husband B. P. Vickery, who had then removed to South Bend, Indiana, in consideration of one dollar, conveyed to appellant, also of South Bend. Appellant then had knowledge of the pendency of the attachment suit. Neither appellant nor any one of the Vickerys testified in this case.

Appellant’s sole contention is that the filing of Vickery’s answer in the attachment suit on November 29, 1909, ipso facto, instantly dissolved the attachment and, as instantly, freed the attached land from the lien, and that his title under his deed of September 8, 1909, is, consequently, one in fee simple, unaffected by the sale in the attachment proceedings. This contention is grounded upon the proviso in section 2298, Revised Statutes 1909. That section authorizes attachments without bond against non-residents but provides that “when any writ of ’ attachment has issued against a non-resident and the plaintiff has given no bond, the attachment shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case.”

It is obvious the plea to the jurisdiction did not affect the attachment, since the statute makes an “answer to the merits of the case” a condition precedent to whatever relief the proviso affords one within its scope. Did the filing of the, answer automatically dissolve the attachment?

1. In Brown v. McKown, 265 Mo. l. c. 335 et seq., we recently had occasion to consider the effect of the proviso in section 2298, but what was said in that case was not directed to the point appellant now presents. The question here is whether the Quoted language of the proviso means that the filing of an answer to the merits, in a case to which it applies, of itself dissolves the attachment without application to or action by the court and without any further step of any kind. The words to be construed are “shall be dissolved as of course.” Had the Legislature intended to provide that upon the filing of an answer in such a case the attachment should, when answer was filed, thereby stand dissolved, and the attachment proceedings thereby stand vacated, we think it would have used words clearly stating that meaning. The language actually used ordinarily implies further action by the court or the party entitled to the benefit of such a provision. Black’s Law Dictionary thus defines the words “of course:” “Any action or step taken in the course or judicial proceedings which will be allowed by the court upon mere application, without any inquiry or contest, or which may be effectually tahen without even applying to the court for leave, is said to be ‘of course.’ ” (Italics ours.) Bouvier’s Law Dictionary defines the same words thus: “That which may be done in the course of legal proceedings without making any application to the court; that which is granted by the court, without further inquiry, upon its being ashed.” (Italics are ours.) In Yates v. People, 6 Johns. (N. Y.) l. c. 359, it was held that the words “of course” mean “according to the course and practice of the court.” This was said in .discussing writs issuable of course. In Merchants’ Bank v. Crysler, 67 Fed. l. c. 390, in discussing motions “of course” in equity, the United States Circuit Court of Appeals for this circuit said such motions were those granted “without the court being called upon to investigate the truth of any allegation or suggestion upon which they are founded.’.’ In, Stoddard v. Treadwell, 29 Cal. 281, it was held that a statute providing for costs following judgments “of course” meant “as a matter of right.”

These authorities warrant the conclusion.that the language of the proviso is not susceptible of the meaning now attributed to it by appellant. We hold that if in an attachment proceeding defendant desires the benefit of the proviso of section 2298, Revised Statutes 1909, it is incumbent upon him to move therefor. One effect of the dissolution of an attachment is a right to a vacation of all proceedings “touching the property and effects attached, and. the garnishee summoned” (Sec. 2342, R. S. 1909) and this also implies court action. That such attachment defendant is entitled, upon answering, to such dissolution of the .attachment and vacation of proceedings and may secure it upon application does not sustain the contention that the filing of the answer in itself works a dissolution and vacation ,* unless we disregard the principle laid down in the authorities cited.

II. We must presume the trial court acted in accordance with the law. Therefore, even if it could he conceded appellant’s construction of the statute is correct, yet the record shows the cause was taken under advisement sometime prior to the rendition of judgment on November 30, 1909. The record being silent, so far as appears here, as to the date on which the cause was taken under advisement, we can presume, in aid of the judgment, that it was under advisement when Vickery’s answer was filed on November 29, 1909. Indulging this presumption, we are of the opinion that in such circumstances the filing of the answer without leave and without setting aside the submission could not render applicable the proviso of section 2298, even though, it be construed as appellant desires.

The judgment is affirmed.

All concur. Bond, J., in paragraph two and the result.


author: RAILEY, C. PER CURIAM.

text:
    THE STATE ex rel. J. W. COMBS, Appellant, v. JASPER N. STATEN et al., Judges of the County Court of Vernon County.
    Division One,
    June 2, 1916.
    1. APPEAL: When Bill of Exceptions Necessary: Certiorari. Where a writ of certiorari was issued to the judges of the county court, having for its purpose the quashing of the order of that court establishing a public road, and by agreement the entire records and rolls of the proceedings in said road case before the county court “are to be considered a part of the respondents’ return,” a bill of exceptions, setting forth such records and other documentary evidence and any oral evidence heard' and considered by the circuit court, is necessary on an appeal from its judgment; and if no such bill is presented to the Supreme Court, nothing but the record proper, which would be the petition for the writ, the return, the motion to quash the return and the judgment, can be considered.
    2. PUBLIC ROAD: Interest of Relator. If the relator in the writ of certiorari fails on the face of his petition to reveal that he has any interest in the subject-matter of the proceedings before the county court which resulted in an order establishing a public road, the action of the circuit court in dismissing the writ will be approved on appeal, because relator was not entitled to the writ.
    3. -: Certiorari: Remedy by Appeal. An interested land owner, objecting to the order of the county court establishing 51 public road, has ample remedy by appeal to the circuit court, as to damages, as to insufficient notices, as to the commissioners being disinterested freeholders and as to a hearing of a remonstrance, and therefore, since the trial .n the circuit court is de novo, a writ of certiorari to quash the order establishing the- road should be denied.
    4. -: -: Judgment: Validating Precedent Matters If the final judgment of the county court establishing a public road affirmatively covers all the jurisdictional facts, it validates any portion of the record which is silent as to the petition and remonstrance.
    Appeal from Vernon Circnit Court. — Hon. B. G. Thurman, Judge.
    Affirmed,

      J. B. Journey for appellant.
    (1) The matter of establishing a public road is in the nature of condemnation proceedings, strictly a statutory proceeding, and contrary to the course of the common law. The statute must be strictly complied with. Sec. 10435, R. S. 1909; Spurgeon v. Bartlett, 56 Mo. App. 355; Anderson v. Pemberton, 89 Mo. 601; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowan, 54 Mo. 234; Whitelet v. Platt County, 73 Mo. 30; Bennett v. Hall, 184 Mo. 407. Not one of the jurisdictional steps were taken by the court in this cause. Spurgeon v. Bartlett, 56 Mo. App. 355; Jones v. Zinc, 65 Mo. App. 409; Railroad v. Young, 96 Mo. 39; Strawhan v. County Court, 65 Mo. App. 644; Fisher v. Davis, 27 Mo. App. 321; Zimmerman v. Snowden, 88 Mo. 218; Taylor v. Todd, 48 Mo. App. 550. Each jurisdictional step must be taken before proceeding to the next step, and this must be done before jurisdiction can be acquired in the next step. Spurgeon v. Bartlett, 56 Mo. App. 355; Jones v. Zinc, 65 Mo. App. 409; Railroad v. Young, 96 Mo. 39. (-2) There must be some connecting link when-a cause is commenced on a certain day and continued from day to day and term to term. If a cause is revived at a-day subsequent, or a term subsequent to the one at which it is commenced, there must be some notice to the adverse party of any intended action therein. (3) Unless a special called term is regularly and properly called, and the statutes complied with, the proceedings had at such term must necessarily be coram non judice. And especially is this true when such acts or proceedings are attacked in a direct manner, such as by writ of certiorari. ■

      Scott & Bowker for respondent.
    (1) The relator is not in a position to maintain this writ for the reason that it appears from the record in this case that he has no interest in the same and is not injured or damaged by any of the proceedings of the county court in said matter. Blodgett v. McVay, 108 N. W. 239; People v. Leavitt, 41 Mich. 470. (2) The writ of certiorari will not lie where there is a remedy by appeal. In this case all the matters complained of could have been reached by an appeal if there was any error. State ex rel. v. Nod-away County, 80 Mo. 500; State ex rel. v. Reynolds, 190 Mo. 578; Moore v. Bailey, 8 Mo. App. 156. (3) The proceedings of the county, court in this case substantially comply with the statute and that is sufficient. Connors v. St. Joseph, 237 Mo. 612; Bennett v. Hall, 184' Mo. 407; Wilhite v. Wolfe, 179 Mo. 472. (4) The filing of the statutory petition and the giving of the proper notice give the county court jurisdiction of'a road case and what happens after that is mere matter of error and can be corrected on appeal. Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184. Mo. 407; Chandler v. Reading, 129 Mo. App. 63. (5) If the court recites and finds the jurisdictional facts in its final judgment, this is sufficient. Chandler v. Reading, 129 Mo. App. 63; Wilhite v. Wolfe, 179 Mo. 472; Bennett v. Hall, 184 Mo. 407. (6) The county court had' jurisdiction to act and enter final judgment at the tiine it did act at its special term on this road matter. State ex rel. v. Mitchell, 127 Mo. App. 455; R. S. 1909, see. 4088.
   RAILEY, C.

— On October 7, 1912, a petition for a writ of certiorari was filed in the circuit court of Vernon County, Missouri, which, without caption and the description of the proposed road, reads as follows:

“The relator herein, J. W. Combs, complains of the respondents, Jasper N. Staten, W. S. Creel and Jas. H. Catón, and for cause of action states that the respondents do now and did at all times hereinafter complained of, compose the county court of Vernon County, State of Missouri; and that on the ■-- day of October, 1911, it being the regular October term of the county court of said county and State aforesaid, there was commenced before - said justices and in said county court a proceeding for the purpose of establishing a new public road in Harrison Township, Vernon County, Missouri, known as the Alva Eipley et al. public road, described as follows, to-wit:”

(Here follows the description of the proposed road.)

“The relator further avers that said respondents-have taken cognizance of and are proceeding to act in said matter thus brought before them, and are about to order said new public road opened, and are about to condemn and take from this relator a tract of land forty feet in width and one-half mile long, through relator’s land, described as aforesaid.
“Eelator further avers that said respondents are therein acting without authority of law and without jurisdiction in the premises, for the reasons, first, that the notices of the intended application for said road were posted by the petitioners and made returnable at the July term, 1911, of said county court, but that proof of said notices was not made until the following October term, 1911, of said court. And that said petition for said new public road was not filed as indicated by said notices, nor was the same acted upon by said county court until the regular October term, 1911, and that then said county court proceeded to order said road surveyed by the county highway engineer without first having given the remonstrators an opportunity to be heard thereon, nor was any evidence heard by said court as to the public necessity, practicability and probable damages to the owners of the land through which said proposed road would run, nor did they find and enter as a matter of record that said proposed road was a public necessity, or the practicability thereof, or that due notice' of the intended application for said road was ever given, but proceeded At once to order the county highway engineer to view, survey and to mark out said proposed public road; and then proceeded at once upon the 'report of said highway engineer to appoint three commissioners to assess the damages along said public road to the landowners without having determined as a matter of record that said commissioners so appointed by them aforesaid were qualified under the law to act as such commissioners, in this, that they failed to find that they were disinterested freeholders of said county.
“Relator further avers that said proceedings of the respondents are altogether outside of the course of the common law, and likewise outside of any statutory or judicial proceedings, and that no writ of errox or appeal lies to such proceedings from this or any other court to this relator.
“Wherefore the relator prays this court to issue' a writ of certiorari, directed to the respondents in their official capacity as’ aforesaid, requiring them and each of them to certify to this court a true, full and complete copy of the petition, remonstrance, record and all other acts and proceedings in said matter, and have said copy returned to this court on or before the - day of - 1912, in order that this court may adjudicate upon the legality of said proceedings, and may make such other and further adjudication and orders therein as right and justice may require.” .

A writ of certiorari was issued in due form and served on defendants as the justices of said county court.

. On October 7, 1912, respondents filed their return, which, without caption, reads as follows:

“Comes now the defendants in the above entitled cause and for return to writ of certiorari issued against them, deny each and every allegation therein contained. Defendants state that all the proceedings concerning the road referred to in plaintiff’s petition and writ were conducted according to law, and in pursuance with the statutes in such case made and provided.
“Defendants for further return to said writ, hereby tender to the court the entire files and records of the county court in said road proceedings.”

On October 16, 1912, relator filed a motion to quash the proceedings of the county court aforesaid, in respect to the establishing and opening of said road. Said motion, without caption, reads as follows:

“Now at this day comes the relator herein and moves the court to quash the proceedings of the county court in establishing and opening what is known as the Alva Eipley et al. public road, for the following reasons, to-wit:
“1. The petition for said public road was' not filed with said county court within the time prescribed by the notices for said public road.
“2. The county court failed to take proof, or find that notices of the intended application for said public road, were posted according to law.
“3. The county court failed to find that said public road petition was. signed by twelve or more freeholders residing in the township where said proposed public road was to be established, three of whom resided in the immediate neighborhood of said proposed road.
“4. The said county court failed to take testimony, and failed to find that said proposed public road was a public necessity, the practicability and probable damages to the landowners through whose land said proposed public road would pass.
“5. The county court failed to appoint three disinterested freeholders to assess the damages to. the landowners as provided by law.
“6. The county court failed to obtain jurisdiction in said road proceedings for other reasons appearing on the face of the record of the county court in said road proceedings.”

The circuit court entered its decree in this cause, which, without caption, reads as follows:

“And on this 16th day of October, it being’ the 9th day of the regular October term, said cause coming on for hearing upon respondents’ return and relator’s motion to quash the proceedings of the county court as shown by said return, and the court after an inspection of said return, and after hearing the evidence and argument of counsel, enters the following judgment in said cause, to-wit:
“Now on this day, the above entitled cause coming on for hearing upon the petition, writ, and return of respondents herein, the court having fully considered the return and the writ issued in this cause, together with the records and files of the county court of said road proceedings, made a part of said return, the court after duly considering the same and hearing the argument of the counsel, finds the issues joined in favor of the respondents; that said road proceedings described in the writ to the county court of Yernon County, Missouri, were regular and according to law, and that the relator is not entitled to the relief prayed for.
“It is therefore ordered, adjudged and decreed by the court that said writ be and hereby is dismissed at the cost of the relator, and that respondents have and recover their costg, and that execution issue therefor.”

On October 18, 1912, relator filed his motion for a new trial for the following reasons:

“1. That said finding and judgment are against the evidence, against the weight of the evidence, and against the law under the evidence.
“2. That said finding and judgment is for the wrong party.”

The above motion was overruled; the cause appealed to the Kansas City Court of Appeals; and relator given leave to file his bill of exceptions on or before the first day of the next regular term of said circuit court. No bill of exceptions was ever filed in the cause, although the judgment of the court below recites that evidence was heard at the trial.

I. The circuit court had before it the record entries of the county court and also the documentary evidence produced before said coprt. None of the oral testimony heard by the county court was certified to the circuit court to be considered with the documentary evidence filed by respondents. We know of no provision of law which authorizes a bill of exceptions to be filed in the county court containing the oral and documentary evidence introduced before said court, in order that it may be made a part of the record thereof. Appellant’s abstract contains the following:

“And by agreement of the parties hereto, the entire records and rolls of the proceedings of said road case before the county court of Yernon County, Missouri, are to be considered a part of the respondents’ return.”

In order to consider this agreement and the testimony heard by the court, on the motion to quash, a part of the record in the cause, it was necessary that they should have been incorporated in a bill of exceptions. We hold, that the certified copies of the county court records, as well as the documentary evidence accompanying same, and all other evidence considered at the trial, should be incorporated in a bill of exceptions, in order to become a part of the record in the case. Without a bill of exceptions, we can only consider the record proper, which in this case, would he the petition; the return of respondents; the motion to quash filed by appellant and the judgment of the trial court. [Bradbury v. Smith, 181 S. W. (Mo.) l. c. 422; Stevenson v. Smith, 177 S. W. (Mo.) l. c. 615; McMurray v. McMurray, 258 Mo. 405, 415; Mitchell v. Sparlin, 255 Mo. 124; Hanne v. Garvey, 255 Mo. 106; Mahaffey v. Cemetery Assn., 253 Mo. l. c. 141-2; Bridge Co. v. Corrigan, 251 Mo. 667; Craig v. Railroad, 248 Mo. 270; Harding v. Bedoll, 202 Mo. 625.]

As no bill of exceptions was filed in the case, we will turn to the record proper as heretofore indicated, in order to determine whether the trial court can be convicted of error therefrom.

II. Referring to the . record proper and considering the petition, answer, motion to quash and the judgment below, we find nothing which would warrant us in disturbing the finding ^ ° and judgment of the trial court in this cause.

III. There is nothing in the petition or the record which indicates that relator has any interest in the subject-matter of this litigation, nor does it appear why he waited until more than seven mon^ts after the road had been ordered opened by the county court, before commencing this action, even if he tvere interested in said proceeding. Having failed to disclose on the face of his petition that he has any interest in the subject-matter of the proceedings before the county court, relator was not entitled to the writ issued by the trial court, and hence, its action in dismissing same was proper under the law. . [Davison v. Otis, 24 Mich. l. c. 25; People v. Leavitt, 41 Mich. 470; Blodgett v. McVey, 131 Iowa, 552; Colden v. Botts, 12 Wend. 234.]

IY. If relator had any interest in the subject-matter of this controversy, and desired to have the proceedings before the county court reviewed, he had an adequate remedy by apQecti0rt 10440, Revised Statutes 1909, reads as follows:

“Appeals to the circuit court shall be allowed by either party from the judgment of the county court assessing damages,' or for opening, changing or vacating any road, and upon such appeal the circuit court shall proceed to hear and determine the same anew; but no commissioner shall be appointed by the circuit court, nor shall any appeal, prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court; and provided further, that all appeals shall be taken within ten days from the date of rendition of the judgment appealed from, and the appellant shall, before such appeal is allowed, file with the clerk of the county court his appeal bond, payable to the county and to the appellee, as their interest may appear, in such sum as may be required by the county court or by the clerk thereof in vacation, and conditioned that he or they (the appellants) will fully pay or satisfy any judgment for damages or costs that may be rendered against them in the circuit court, and will in all things abide the judgment of said court.”

We have heretofore held in plain, unmistakable language, that where a party has an adequate remedy by appeal, he cannot resort to certiorari proceedings in cases of this character. [State ex rel. v. Goodrich, 257 Mo. 40, 50; State ex rel. v. Mosman, 231 Mo. l. c. 482-3; State ex rel. v. Reynolds, 190 Mo. 578; State ex rel. v. Woodson, 161 Mo. 444; State ex rel. v. Shelton, 154 Mo. l. c. 691; State ex rel. v. Nodaway County Court, 80 Mo. 500.]

The Legislature in 1909 (Laws 1909, p. 727) repealed a large portion of the law as it then stood relating to roads and bridges, and enacted new provisions in lieu thereof. Section 9419, Revised Statutes 1899, was very materially changed by the above legislation, as will appear upon a comparison of section 10440, Revised Statutes 1909, with said section. It is evident that the lawmaking power contemplated in the above change that proceedings to open roads should be facilitated rather than retarded. This case presents a practical illustration of the necessity for refusing a writ of certiorari on the record disclosed herein.

The relator has shown no interest in the subject-matter of this litigation; waited until more than seven months after the road had been ordered opened, before applying for the writ; and incurs no liability, except for costs. If he had been successful here and the proceedings of the county court had been quashed, all the efforts of the community interested in this matter would have come to naught. On the other hand, if relator, under the facts disclosed by the record, had been required to test the validity of the county court proceedings by appeal, he would have been required to perfect his appeal within ten days from the date of final judgment in said proceeding. He would likewise have been required to give a bond, etc. ■

In addition, however, to the foregoing, in order that there may be no unnecessary delay in cases .of appeal, it is provided that the circuit court shall proceed to hear and determine the case anew. In proceedings by appeal the errors, if any, committed by the county court, may be corrected when the case reaches the circuit court, where it will be tried anew. On the other hand, if the proceedings by certiorari show want of jurisdiction upon the part of the county court, it would nullify all the proceedings before such court.

We therefore hold, that on the facts disclosed by this record, the writ of certiorari was improperly issued and properly dismissed by the trial court.

V. .It may be contended that the petition, remonstrance and final judgment of the county court ordering the road opened, constituted the record proper of said court; and that this part of the proceedings should be considered as a part of resPonIents ’ return, without any reference to the other documents and proceedings certified to the circuit court. Without undertaking to determine this question, on account of the conclusions heretofore reached, as it is not necessary to do so, we would suggest that the final judgment rendered by the county court covers all the jurisdictional facts affirmatively, and validates . any portion of the record which is silent as to such matters.

In the very able and exhaustive opinion of Judge Sturgis of the Springfield Court of Appeals, in State ex rel. v. Ross, 177 Mo. App. l. c. 230, it is said:

“It has also been ruled that it is sufficient in certiorari proceedings that the jurisdiction of the inferior tribunal, with which alone the review court has to deal, appears by any part of the record. [State v. Schneider, 47 Mo. App. 669, 676; State ex rel. v. Mayor of Neosho, 57 Mo. App. 192, 198.]”

Upon a full consideration of all the matters before us, we have reached the conclusion that the judgment below was for the right parties, and it is accordingly affirmed.

Brown, C., concurs in result.

PER CURIAM.

— The foregoing opinion of Railey, C., is adopted as the opinion of the court.

All the judges concur, Blair, J., in the result.