text:
    JESSIE R. BINGHAM v. HERMAN C. KOLLMAN, KANSAS CITY et al., Appellants.
    Division one,
    April 2, 1914.
    1. JUDGMENTS: County Courts: Presumptions of Validity. A county court is a court of inferior jurisdiction, but its orders and judgments, made in the exercise of statutory powers conferred upon it, are entitled to the same favorable presumptions which are accorded in like cases to circuit courts, whether they arise from the recitals or silence of its records. Its judgment vacating a street can be collaterally attacked only by pointing to some fact, recital or statement contained within the entire record of its proceeding which affirmatively shows it was without jurisdiction of the subject-matter or the persons concerned.
    2. -: -: -: Vacating Street Petition. By the Act of January 20, 1866, Laws 1865-6, p. 200, the county court of Jackson county was given power by the Legislature to vacate a street in the City of Kansas, and the petition, plat and notice being in compliance with the statutory prescriptions, it was not necessary that the names of the signers, comprising all the owners of the abutting property, should have been inserted in the body of the petition for a vacation of the street, it being sufficient that they were attached to it as petitioners, and that their names and the number of feet of land owned by each of them were set out and described in the plat which accompanied the petition and was referred to by it.

      3. -: -: - — : -: Necessary Parties: City. Neither was it necessary that the City of Kansas be made a party to the proceeding to vacate the street. The owners of the property abutting on the street were the only necessary parties.
    4. TITLE TO ACT: To Vacate Street. The title to an act in the words, “An Act providing for the vacation of streets, alleys, public squares and grounds of towns- and cities,” was sufficient for an act authorizing the county court to vacate a street, etc.
    5. VACATION OF STREET: Consent of Property Owners: Acknowledged Before Notary Instead of Justice. Where the statute declared that no vacation of the street should be decreed, by the county court unless the owners of two-thirds of the abutting property consented thereto in writing acknowledged before a justice of the peace, an acknowledgment of such written consent before a notary public will not be held invalid,, since under the then statutes acknowledgments of instruments affecting real estate could be made before notaries public, and the party claiming title to the vacated ground is shown to have-been in possession for ten consecutive years, and any defect in the acknowledgment does not prejudice her rights.
    6. -: Implied P'ower of City, The grant of the power to vacate a street must be in express terms or by necessary implication, and no such grant was made to Kansas City until the charter of 1908, but it had previously been given to the county court of Jackson county by the Act of 1866.
    7. -: By Continued User. Whether or not the strip of ground was dedicated to public use by continued user was a question of fact for the trial court, and its finding is accepted on appeal.
    8. TAX DEED: Land Subject to Taxation. By the express provisions of the charter of Kansas City a deed executed by the ■proper officer in the sale of land for taxes is prima-facie evidence that the real property conveyed was subject to taxation for the year stated in the deed.
    9. -: Sale of One Tract Each Day. A statement in the tax deed that “one tract or parcel of land was sold each day” is prima-facie evidence of its truth.
    10. -: Certificate of Sale: Recital in Deed. Where the tax deed is a literal copy of the form contained in the charter of Kansas City, it is sufficient, whether or not it contains a recital that a certificate of purchase had been issued to the purchaser at the tax sale.

      11. QUIETING TITLE: Multifarious Petition. A defendant who claims the whole tract of land cannot he heard to complain that plaintiff’s petition to ascertain and determine the title is. multifarious.
    Appeal from Jackson Circuit Court. — Eon. B. B. Middlebrook, Judge.
    Affirmed.

      Frank Titus, John G. Park, A. F. Evans, F. M. Hayward, Inghram D. Hook and A. F. Smith- for appellants.
    (1) The order of June 4, 1878, by the county court of Jackson county declaring vacated as a public street Tracy avenue from Independence avenue south to Sixth street, in Kansas City, is insufficient as matter of law as shown by the proceedings of said court in evidence, to destroy such street or abrogate public right thereto, (a) Said county court is not shown to have had jurisdiction of the subject-matter. The proceedings were had under the act approved January 30, 1866, Laws 1865-6, p. 200. The petition here in question sought the vacation of a small portion about 500 feet in length of a city street itself more than a mile in length. Such petition failed to comply with the provisions of section 1 of said act in omitting to name and set out therein the names of the persons to'be affected by such vacating. Compliance with the statute required the name of the City of Kansas, among others, to be inserted in any application for vacating a city street, it being directly and manifestly affected. The city was omitted to be named therein. Such omission rendered the proceedings radically defective. There is no record entry or other proper evidence showing due and lawful public notice of the pendency of the petition before said county court — the statute, section 1 of the act aforesaid— requiring, in lieu of newspaper publication, tbe setting up of notices in writing as to such pendency, and tbe nature of such petition in three of the most public places in the City of Kansas. A county court being a tribunal of limited jurisdiction, it is required that all facts showing jurisdiction both as to the persons and subject-matter to be affected must affirmatively appear, to sustain property rights based on an act of .such court. St. Louis v. Alexander, 23 Mo. 483; Wool-cot v. Lawrence Co., 26 Mo. 272; Steines v. Franklin Co., 48 Mo. 167; Valle v. Fleming, 19 Mo. 454; Rear-don v. St. Louis Co., 36 Mo. 555; Bauer v. Franklin Co., 51 Mo. 205; Saline Co. v. Wilson, 61 Mo. 237; Butler v. Sullivan Co., 108 Mo. 630; Moss v. Kauffmann, 131 Mo. 429; Sturgeon v. Hampton, 88 Mo. 213; State ex rel. v. Madison Co. Ct., 136 Mo. 326; Corrigan v. Morris, 43 Mo. App. 456; Drainage Dist. v. Dandt, 74 Mo. App. 586. The Act of January 30, 1866, as it makes no mention in its title of the extraordinary extension given in the body of the act to the jurisdiction of the county court, should be held void as to that feature of the law. Kansas City v. Payne, 71 Mo. 159; State v. Coffee Co., 171 Mo. 642; State v. Bixman, 162 Mo. 69; State ex rel. v. Marion Co. Ct., 128 Mo. 427; State v. Persinger, 76 Mo. 346; Witzman v. Railroad, 131 Mo. 612; Williams v. Railroad, 233 Mo. 666; State ex rel. v. Dist. Co., 237 Mo. 103. (b) County courts possess neither common law nor equity jurisdiction. Such jurisdiction as they have is exclusively statutory in character. No power is vested in these courts by implication. Coil v. Pitman’s Admr., 46 Mo. 52; Jefferson v. Conan, 54 Mo. 234; Saline Co. v. Wilson, 61 Mo. 237; Sturgeon v. Hampton, 88 Mo. 211; Railroad v. Hatton, 102 Mo. 45; State ex rel. v. Madison Co. Ct., 136 Mo. 323. And where a county court is without jurisdiction of the subject-matter, its judgments are attackable collaterally. Fithian v. Monks, 43 Mo. 502; Iba v. Railroad, 45 Mo. 469; Allen v. Scharringhausen, 8 Mo. App. 229; York v. Roberts, 8 Mo. App. 140; Gideon v. Hughes, 21 Mo. App. 528; Freeman on Judgments (4 Ed.), secs. 525-7; Black on Judgments (2 Ed.), sec. 936; Adams v. Cowles, 95 Mo. 507. The records of the county court in evidence in this case fail to show any sufficient notice of the proceedings for vacation. State v. Brown, 130 Mo. App. 214; Frizell v. Rogers, 82 111. 109; 2 Black on Judgments, sec. 875; Hayward v. Guilford, 69 Mo. App. 4; Burns v. Railroad, 15 Fed. 177-183. There is nothing in the record or files of the proceeding showing that such alleged notice contained any statement as to what the petition prayed for, or the nature of the order or judgment sought thereby; nor any facts whatever disclosing anything as contained in such notice. Nor are the locations or situations mentioned which the constable may have considered three of the most public places in said city. (2) The City of Kansas was a necessary party to any proceeding seeking vacation of public streets within the city; and aside from other considerations the lack of its assent to the vacating of Tracy avenue here questioned, renders the alleged vacation void, (a) The sole and exclusive power over land used and dedicated for streets in said city, as well as absolute and exclusive control thereover, that is, the right of directing, regulating, or limiting in any degree the use or non-use by the public of such highways, was on June 4, 1878, vested by its charter in the common council of this city. Laws 1875, p. 204, sec. 1, par. 7. (b) And to divest such public use, dominion, and control by the city due process of law must be invoked, and the city given its day in court. Fithian v. Monks, 43 Mo. 502; Glasgow v. St. Louis, 87 Mo. 678; Higgins v. Peltzer, 49 Mo. 152; Glasgow v. St. Louis, 107 Mo. 198; State ex inf. v. Henderson, 145 Mo. 329; Elliott on Roads, 661. (c) The common council of Kansas City at the time of the order of vacation by the county court possessed solely the power to ordain as vacated a duly dedicated public highway within the limits of such corporation. And this under the powers special and general conferred in its legislative charter. Sugar Co. v. Grain Co., 82 Mo. 121; Aldridge v. Spears, 101 Mo. 400; Railroad v. Springfield, 85 Mo. 674; Glasgow v. St. Lonis, 107 Mo. 198; Brown v. Railroad, 137 Mo. 529; Speigel v. Gansberg, 44 Ind. 418; Hinchman v. Detroit, 9 Mich. 103; Kettle v. Fremont, 1 Neb. 329; Elliott on Roads & Streets, pp-. 661, 664; 2 Dillon, Mu. Corps. (4 Ed.), sec. 666. (3) Even if Tracy avenue from Sixth street to Independence avenue had never been improved, graded, or paved by the city,- such fact does not constitute an abandonment of the street, nor of the municipal rights of the city at large. St. Louis v. Railroad, 114 Mo. 13; Baughman v. Folwell, 156 Mo. App. 227; O’Hara v. Laclede Co., 131 Mo. App. 428; Roanoke Co. v. K. C. Co., 108 Mo. 50; Reilly v. City, 51 Wis. 526; Columbia v. Bright, 197 Mo. 714. And continuous use by the public of land dedicated as a highway is evidence of acceptance of the dedication by the proper authority. Benton v. St. Louis, 217 Mo. 687; Meiners v. St. Louis, 130 Mo. 274; McGrath v. Nevada, 188 Mo. 102; Otterville v. Bente, 240 Mo. 291. (4) And the acts of city officials in listing for taxation a portion of a public street on the city books as taxable private property and making deeds therefor, lacking ordinance or other sufficient authority therefor, were ultra vires and void. St. Louis v. Gorman, 29 Mo. 593; St. Louis v. Railroad, 114 Mo. 13; Kansas City v. Hyde, 196 Mo. 498; Wright v. Doniphan, 169 Mo. 601; Peters v. St. Louis, 226 Mo. 62; Brightwell v. Kansas City, 153 Mo. App. 519; Railroad v. Illinois, 146 U. S. 453; 1 Dill. Mun. Corp. (4 Eld.), sec. 383, p. 457; State ex rel. v. Lesser, 237 Mo. 310. No evidence was offered by plaintiff at the hearing of this cause that the common council of Kansas City had levied any tax on this land. No evidence was offered by plaintiff showing that the land in question had ever been claimed by the state authorities as subject to taxation for state purposes, or that it was ever assessed for such purposes, lacking which, the alleged facts upon which plaintiff’s claim rests is presumptively and on its face void. Under said section of the charter quoted, the burden was also on plaintiff to prove that the portion of Tracy avenue claimed by her in this case was not exempt by general law from taxation. Such fact was not proved. Hence a presumption arises that this land was free from any tax levy by the city, and that it was exempt from municipal taxation at the date claimed by plaintiff. State ex rel. v. Lesser, 237 Mo. 310; Kansas City v. Hyde, 196 Mo. 507. The tax deeds, put in evidence by plaintiff, and upon which the trial judge based his judgment for plaintiff, were invalid not only upon the ground’s previously stated herein, but for the reasons following; The land claimed as conveyed by said deeds is described as “part of vacated Tracy avenue,” no names of owners being stated therein. In the trial court’s opinion it is said that after the vacation of the street the “title to the property described in plaintiff’s petition reverted to the abutting proprietors. ’ ’ If such reversion of title occurred, then plaintiffs should have proved assessments against the proprietors, owners of such lands after June 4, 1878, and during the years of 1903 and 1904, which plaintiff failed to do. The deed under which plaintiff claims recites that the tax sale was begun on the first Monday in November, 1903,. being the 2d day of the month, and continued from day to day for four days to November 6, 1903; but such deed omits to state as performed, the only act authorizing or permitting a continuance or adjournment from the first Monday being the 2d day of the month, namely, a sale each day of not less than' one tract or parcel of land. The fact of snch daily sale not appearing in the deed renders the deed void on its face as the power to sell at a succeeding date depends wholly thereon. Meriwether v. Overly, 228 Mo. 218. Nor is there any evidence in the case that any certificate of such purchase was recorded in the same manner that other deeds or conveyances of land are required to be recorded in Missouri. The manner, mode or method of recording deeds to land in this state is by copying into the public records a true transcript thereof. Gate-wood v. House, 65 Mo-. 663; Anderson’s Law Dictionary, p. 863. (5) The petition in this case is multifarious and not proper pleading under Sec. 2535, R. S. 1909, none of the fifty-one defendants sued herein having or being alleged as having,' any contestable estate in that portion of Tracy avenue here sued for except Kansas City and the defendants Ford. Chaput v. Bock, *224 Mo. 73; Pemiston v. Pressed Brick Go., 234 Mo. 698; Gardner v. Robertson, 208 Mo. 605; Utter-back v. Meeker, 16 Wash. 185. :'

      L. A. LaughUn for respondent.
    (1) The proceedings to vacate the street were taken pursuant to a law enacted in 1866, Laws 1865-6, p. 200. (a) The petition is accompanied by a plat, which is referred to and made a part of the petition. This shows the names of all owners of property to be affected by vacating the street, and, taken together with the petition, shows that all owners of property affected signed the petition. Insurance Co. v. Jones, 89 N. E. (Ind.) 871; Iloupt v. Dutton, 170 Ind. 69. (b) The name of the City of Kansas is not inserted in the petition. There is no such requirement in the statute. The city did not own the street. The only persons who had property rights to be affected by the vacation were the owners of the adjoining property. Henderson v. Lexington, 111 S. W. (Ky.) 318, 22 L. R. A. (N. S.) 20; County Court v. Armstrong, 34 W. Ya. 326; In re Albers, 113 Mich. 640; Callaway Co. Ct. v. Round Prairie Twp., 10 Mo. 679; Realty & Inv. Co. v. Deere & Co., 208 Mo. 66. Furthermore, a proceeding to vacate a road is a proceeding in rem in which it is not necessary to name adverse parties. In re Jamieson, 130 N. W. (Minn.) 1000; Haynes v. Lassell, 29 Yt. 157. (c) The order of the county court recites that notice was given by setting up written notices in three of the most public places in the City of Kansas. This was sufficient. Latimer v. Tillamook Co., 22 Ore. 291. The altering, widening, vacating and laying out of roads are not an exercise of judicial power^, and hence it is not sound law to say that no presumption will be indulged in favor of the validity of such proceedings. Shields v. Ross, 158 111. 214; New London v. Davis, 73 N. H. 72. In proceedings by petition to the common council of a city to discontinue a portion of a street it is in the discretion of the council to determine as to the public convenience and necessity of such discontinuance, and where there has been no glaring informality or illegality in the proceedings their judgment should not be disturbed. Smith on Modern Law of Mun. Corp., secs. 1283-4; Pittsburg v. Mayor, 79 Me. 71; Canady v. Lumber Co., 120 Pac. (Idaho) 830. But if it be held that the proceeding is judicial in this state, then the order of the county court. has the force and effect of a judgment, and the finding of fact that notice was given as required by law is not open to collateral attack. State ex rel. v. Fleming, 147 Mo. 1, 158 Mo. 558; Weber v. Lane, 99 Mo. App. 69; Kayser v. Trustees of Bremen, 16 Mo. 90; State ex rel. v. Weatherby, 45 Mo. 17; State v. Evans, 83 Mo. 319; Macey v. Stark, 116 Mo. 494; Haynes v. Lasell, 29 Yt. 157. (d) The claim that the county court is limited in its jurisdiction to county business is not the construction placed upon its powers by this court or the Legislature. Judicial power is vested in county courts by Constitution 1865, art. 6, sec. 23. Benton Co. v. Morgan, 163 Mo. 661. The plenary power of the Legislature over streets and highways is such that it may, in the absence of special constitutional restrictions, vacate or discontinue them, or invest a subordinate political subdivision with that authority. Meyer v. Teutopolis, 131 111. 552; Brook v. Horton, 68 Cal. 554; Cooper v. Detroit, 42 Mich. 584; Whit-sett v. Union Depot & R. Co., 10 Colo. 243; McGee’s Appeal, 114 Pa. 470; Brazelle v. Seattle, 55 Wash. 180; Railroad v. Abies, 153 Ala. 523. (2) Appellants claim a dedication of the street by public user. It is sufficient to say that on this point the court found, as a matter of fact, that there was no such dedication. This finding of facts is conclusive on this appeal. Allen v. Jones, 50 Mo. 205; Twiss v. Hopkins, 50' Mo. 398; Holden v. Vaughan, 64 Mo. 588. This being a statutory proceeding, it was tried below as an action at law. Mason v. Barnard, 36 Mo. 384; Riley v. McCord, 24 Mo. 265; Fithian v. Monks, 43 Mo. 502; Hudson v. Wright, 204 Mo. 412. The evidence showed that the sidewalk and curb on the south side of Independence avenue and the wall of rock and earth in the rear of the strip made it impassable for vehicles. Mere foot paths over it is not sufficient evidence of public user. Cheney v. King Co., 130 Pac. (Wash). 893. (3) (a) By Sec. 58, art. 5, Kansas City Charter of 1889, the tax deed is made prima-facie evidence “that the real property conveyed was subject to taxation for the year or years stated in the deed; that the real property conveyed had been duly assessed for the year or years named in the deed; that the taxes were levied according to law.” (b) The statement in the tax deed that, “said sale was continued, and publicly held from day to day up to and including the sixth, day of November, 1903,” is sufficient. Sullivan v. Donnell, 90 Mo. 278; Lynch v. Donnell, 104 Mo. 519; Meriwether v. Overly, 228 Mo. 236; Hill v. Attebury, 88 Mo. 114; Roth v. Gabbert, 123 Mo. 21. (c) The statutory form (Sec. 58, art. 5, Kansas City Charter of 1889) is literally followed in the deed as to the certificate of purchase. This is sufficient. Black on Tax Titles (2 Ed.), sec. 403; Williams v. Sands, 251 Mo. 147. Sec. 47 of the same article provides, that “such certificate of purchase shall be assignable, and an assignment thereof shall vest in the assignee all the right, title, and interest of the original purchaser.” Sec. 58 further provides, that “the tax deed shall be prima-facie evidence” that “the certificate of purchase had been duly assigned to the grantee.” (5) It appears from the evidence in the record that defendants, Ford, claim title to the whole of the strip. This being the case, the objection that the petition is multifarious could not be made by them. Boggess v. Boggess, 127 Mo. 305.
    STATEMENT.
    This is a suit under section 2535, Revised Statutes 1909, to quiet title. The land in dispute is thirty by one hundred and twenty feet, and is a part of what was originally known as George street, as laid out and dedicated in 1858 by Joseph C. Ransom and others in a subdivision of lots and public highways made by them in the city of Kansas, now Kansas City. The strip of land in dispute runs north and south and intersects at right angles with Independence avenue, now Admiral boulevard.
    Plaintiff alleges that she is the owner in fee in said lands under a purchase of the same when sold by Kansas City for taxes for the years 1903 and 1904. That defendants, Kansas City, Alfred G. Ford and Elizabeth Ford and a number of other persons made defendants, claim some title; wherefore, the petition prayed the court to define and adjudge 'the respective titles of the parties to. said land. The defendant Kansas City answered separately, averring that the real estate is a public street. Defendants A. G-. and Elizabeth Ford answered denying that the statements of the petition showed that the land was individually owned or subject to taxation, or that plaintiff’s.purchase .thereof for due taxes was in accordance to law. Averring that there was a misjoinder of all the defendants except Kansas City and Alfred Ford and wife. Pleaded the Statute of Limitation for ten years. Admitting that the land sued for is a street in Kansas City. Averring that said defendants were owners in fee of the tract subject to the easement of said city. Averring that plaintiff was without title' because her muniments of title were void. ■ There is no substantial dispute to the following facts:
    In 1858, Joseph C. Ransom and others platted certain lands belonging to them as “Ransom and Tally’s addition to Kansas City, Missouri,” which plat was duly acknowledged and recorded, and showed the dedication of George street (now Tracy avenue) thirty feet wide, extending north and south the length of the addition, as a public street. At right angles to this street was laid off' on the plat two other streets, now known as Admiral boulevard and Independence avenue. When Independence avenue was graded by the city up to Tracy avenue, the surface of the latter was left fifteen or twenty feet above the grade of Independence avenue, making Tracy avenue impassable. Thereupon on the thirtieth day’of April, 1878, the owners of the property on both sides of Tracy avenue for its full length, petitioned the county court of Jackson county to vacate that part of Tracy avenue lying between Admiral boulevard (then Sixth street) and Independence avenue, for the reason that the heavy cutting required would greatly damage their property. Thereafter at the June term, 1878, the county court accéded to the request of its petitioners and declared said property of Tracy avenue vacated as a' public street and described in its judgment boundaries of said street so vacated. This petition was accompanied by a plat referred to and made a. part thereof, and which showed the names of each owner on both sides of the street and the number of feet of ground owned by him, to be the same as the signers of the petition. The consent in writing of the owners of more than two-thirds of the property adjoining the street to be vacated was acknowledged before a notary public and filed for record in the recorder’s office. The decree of the county court recited these facts and also that notice of the pendency' of the petition to vacate the street was given for thirty days before the first day of the June term by written notices set up in three of the most public places in the City of Kansas, now Kansas City.
    After the vacation of Tracy avenue, the city assessed the vacated street for taxes as private property, and has continued so to assess it up to the present time. The title of the plaintiff rests upon two tax deeds. One tax deed is for the taxes of 1903 and conveys the west half of the strip. The second tax deed conveys all the strip for the taxes of 1904. The latter deed is fortified by two deeds made to correct the error of leaving in the words, “Adjourned sale,” which appeared in the original deed. One deed of correction is made by the city treasurer in office at the time the deed of correction was made.
    The defendants Ford claim title to the land abutting on both sides of the vacant street under a deed l>om Joseph Moss and wife dated September 24, 1893, this deed purported to cover the land east of the strip, and under a deed from Frederick E. Emberic dated May 20, 1907, purporting to convey the land lying on the west side of the strip. There was testimony tending to prove that Independence avenne where it abnts on this vacated strip, has a sidewalk and curb in front of this strip, and there is no travel over this strip except by pedestrians who have used it as a footway for fifteen or sixteen years.
    The trial court found that the, plaintiff had a fee simple title to the whole strip and defendant had no title or interest in the same. From that judgment defendants Kansas City, Alfred Ford and Elizabeth Ford have appealed to this court.
   OPINION.

I. ,

BOND, J.

(after stating the facts as above). — It is conceded by both parties and the facts show, as stated in the brief by counsel for appellant, “that the crux of the case for this court is: Was Tracy avenue between Sixth street and Independence avenue lawfully vacated by the county court in June, 1878?” Consequent to the solution of that question another inquiry might arise, whether the defendants Ford, who deraigned title from certain persons who joined in the petition to vacate the strip in controversy, are thereby estopped from questioning the validity of the vacation?

Defendants make several objections to the judgment of the county court upon the assumption that it is open to collateral attack since that court is one of limited and inferior jurisdiction, and according to appellants’ notion, the facts necessary to sustain its jurisdiction must affirmatively appear in its record. That is an' incorrect conception of the law as it now exists, relating to the force of the judgments in county and probate courts. The jurisdiction to vacate streets was conferred upon the county courts by the act of the 'Legislature approved January 30, 1866. [Laws 1865-6, p. 200.] This act provided that persons interested in any town or city property may petition the county court describing the property to be vacated and giving names of the persons to be affected; the petition to be filed thirty days before the next sitting of the court. That notice shall be given for the same space of time by publication or posting in three of the most public places in said town or city. That if no opposition is-made vacation may be ordered, but if opposition arises the application shall be continued to the next term of court, in which event, it points out the procedure. The act further provides that no vacation shall be decreed unless the owners of two-thirds of the adjoining property consent in writing, acknowledged before justice of the peace. In the case at bar the petition to vacate was filed on behalf of, and signed by, every owner of the land on both sides of the strip proposed to be vacated. Attached to the petition was a plat which set out the names (being duplicates of those signed to the petition) of every owner of abutting property on both sides and gave the number of feet of each tract and the name of its respective owner. This plat was referred to as part of the petition, and was filed with it in the county court as the basis of their request for thirty days before the next term of the county court. There was no opposition to the request. The taking of the foregoing steps was sufficient to vest the county court with the jurisdiction of the parties, the cause of action and the res. It was not necessary that the names of the signers of the petition comprising all of the owners of the abutting property should have been put in the body of the petition. It was sufficient that they were attached to it as plaintiffs and that their names and the number of feet of land owned by each of them was set out and described in the plat which accompanied the petition and was referred to by it. Appellants? contention to the contrary is overruled.

Neither is it necessary that Kansas City, then City of Kansas, should be made a party to the proceeding. The only necessary parties to the proceeding- were the owners of the abutting property, for they alone would be entitled to compensation for the occlusion of the street. [Henderson v. Lexington, 22 L. R. A. (N. S.) l. c. 37.] The city might have been a proper party, but was not a necessary party, to the vestiture of jurisdiction in the county court by the terms of the act. The city was not entitled to any damages for cessation of its easement. The only person entitled to damages was that portion of the public whose property abutted upon and bounded the portion of the street sought to be vacated. Being thus possessed of full jurisdiction both of the necessary parties and the cause of action set forth in their petition, and “no opposition” having been made, the county court on the fourth of June, 1878, entered an order vacating the property described as a street and expressly reciting in said order its finding upon the evidence of the filing of the petition to vacate by the owners of the property bounding the strip of land as shown on a plat attached to the petition which had been filed more than thirty days before the court convened, and setting forth further, to-wit:

“And it further appearing that notice of the pend-ency of said petition was duly given for the space of thirty days prior to the first day of the June term of this court, 1878, by written notices set up in three of the most public places in the said City of Kansas, on the 29th day of April, A. D. 1878, by the constable of Kaw township in said Jackson county as shown by his return duly certified on a copy of said notices.
“And it further appearing that the consent of the owners of two-thirds of the property adjoining and fronting the street asked to he vacated had been obtained to snch vacation, which consent had been dnly acknowledged before a notary public of said connty and filed for record in the recorder’s office of said county and no opposition being made to said petition. ’ ’

The foregoing facts and recitals contained in the order or judgment of the connty court showed that it had duly acquired jurisdiction according to the terms of the act over the necessary parties and the cause of action or subject-matter set forth in their petition, and the judgment so rendered discloses on its face the existence and finding of the court, of all the matters essential to the exercise of its jurisdiction to vacate the street as conferred 'upon it by the act of the Legislature.

That order or judgment is not open to collateral attack, and no direct attack is made upon it by the pleadings in this case. The county as well as the probate court, is one of inferior jurisdiction, but the rulings of some of the earlier cases as to the absence of any presumption of jurisdiction when the records of those courts do not affirmatively disclose their jurisdiction have been repeatedly overruled. The law is now settled that the orders and judgments of county and probate courts, made in the exercise of their statutory powers over subjects and matters conferred upon them, are entitled to the same favorable presumptions arising, either from the statements or the silence of their records, which are accorded in like cases to circuit courts or others of general jurisdiction. [Johnson v. Beazley, 65 Mo. 250; Desloge v. Tucker, 196 Mo. l. c. 601, and cases cited; Ancell v. Bridge Co., 223 Mo. l. c. 227; Macey v. Stark, 116 Mo. l. c. 494, and cases cited; McDonald v. McDaniel, 242 Mo. l. c. 176; Covington v. Chamblin, 156 Mo. 574; State v. Fulton, 152 Mo. App. l. c. 348; Deweese v. Yost, 161 Mo. App. l. c. 12; Spicer v. Spicer, 249 Mo. 582.]

Under the rule governing the judgments of circuit courts and which, by the facts in this record, is madé applicable to the order of vacation of the county court, its jurisdiction to render that judgment can only be collaterally attacked by pointing to some fact, recital or statement contained within the entire record of its proceedings, which affirmatively proves that the court was without jurisdiction of the person or subject-matter. So far from that being- the case the recitals in the orders of vacation, together with the entire record, disclose that the county court was fully possessed of jurisdiction according to the terms and provisions of the act of the Legislature giving power to vacate streets. This conclusion disposes of all the objections in appellants’ brief aimed at the validity of the order of vacation of the streets except the suggestion (seemingly not pressed) that the title of the act of January 30, 1866, is not broad enough to cover the subjects dealt with in the body of the bill. We have examined the title and the bill. The substance of the bill has been set out and was in our opinion clearly comprehended within the scope of the title as far as the vacation of streets is concerned; for the title uses these words, “An Act providing for the vacation of streets, alleys, public squares and grounds of towns and cities,” etc., which is all that is necessary to validate the proceeding’s of the county court in the matter in hand.

II.

It is next suggested that the record discloses that the written consent of the persons owning two-thirds of the property, etc., to the vacation of the street was acknowledged by a notary public, instead of a justice of the peace. This is a highly technical and meritless assignment. At the time this acknowledgment was made, notaries public, as well as justices of the peace, were authorized by the statute to take acknowledgments of instruments affecting real estate. [Laws 1877, p. 375; Laws 1877, p. 352.] Besides, the plaintiff is shown by the record to have enjoyed the estate for ten consecutive years through this duly recorded instrument, whereby its acknowledgment, even if defective, does not prejudice her rights. [R. S. 1909, sec. 6318.]

III.

It is further claimed by appellant that the power to vacate streets was vested in Kansas City by the Session Acts. [Laws 1875, p. 204, subdivision 7.] That paragraph does not in terms, confer the power to vacate streets. This power appears not to have been given in haec verba until the charter of 1908. [Charter of 1908, bottom of page 96, second paragraph from the bottom.] The rule is that the plenary power of the Legislature over streets, barring constitutional restrictions, may be exercised by itself or delegated by it to municipal authorities or other agencies, but the grant of the power to vacate must be in express terms or by necessary implication. [2 Elliott on Roads and Streets (3 Ed.), sec. 1177.] Tested by this rule there is nothing in the act of 1875 to indicate that the particular function of vacating streets was granted to Kansas City. That power was given to it by its subsequent charter. But it was clearly possessed by the county court at the time of the rendition of its judgment.'

IV.

Appellant also insists that there was a dedication of the strip of land in controversy from the continual user. That was a controverted question of fact which the court below found against appellant.

Appellant further complains that the tax deeds executed to plaintiff did not carry the title, because there was no evidence that the land was subject to taxation. There is no merit in this contention, for by the express provisions of the charter of Kansas City the deeds in question are made “prima-faeie” evidence, in the relation to the rights of the grantee in said deed, that the taxes were not paid at any time before the sale, and that the real property conveyed was subject to taxation for the year or years stated in the deed. [Charter of Kansas City 1889, art. 5, sec. 58, p. 56.]

The statement in the tax deed also covered the point made by appellant that there was nothing to show that “one tract or parcel of land was sold each day.” [Charter of Kansas City 1889, secs. 44, 69; Sullivan v. Donnell, 90 Mo. 278; Meriwether v. Overly, 228 Mo. l. c. 236.]

Appellant further complains that the deed fails to recite that a certificate of purchase was issued. The deed is a literal copy of the statutory form contained in the charter of Kansas City and it is therefore correct. [Sections 58, 75, Charter of 1889, p. 54; Williams v. Sands, 251 Mo. 147.]

Neither is there any merit in the objection that the petition is multifarious even if it was before us. It does not lie in the mouth of defendants Ford, who claim title to the whqle strip, to interpose that objection. [Boggess v. Boggess, 127 Mo. 305; R. S. 1909, sec. 1733; Rinehart v. Long, 95 Mo. 396.]

These conclusions necessarily dispose of this appeal. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    CLYDE O. SPERRY et al. v. LEONARD THIEMIE, Appellant.
    Division one,

    April 2, 1914.
    APPEAL: No Bill of Exceptions. Where appellant’s abstract shows no bill of exceptions and of the record proper only the pleadings and an entry that a motion for a new trial was filed, and respondent’s abstract shows that motion was not filed in time, a judgment for plaintiff to quiet title to real estate will be affirmed on respondent’s request, the short transcript showing a judgment within the issues made by the pleadings duly rendered and an order of appeal was timely filed in the appellate court.
    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.
    Affirmed.

      T. J. Murray for appellant.

      Hamlin & Sea/well for respondents.
   WOODSON, P. J.

— This suit was instituted by the plaintiffs in the circuit court of Greene county, under old section 650, Revised Statutes 1899, against the defendant, to quiet and adjudge title to three lots of ground situate in the city of Springfield, particularly described in the petition. A trial was had and the judgment was in favor of the plaintiffs, and against the defendant. From that judgment the defendant appealed the cause to this court.

The abstract of the record does not state definitely the date of the rendition of the judgment, but it is clearly inferable from the following language contained therein that it was on or prior to February 19, 1910, viz.:

“And under the evidence and refusal of the instructions, the court sitting as a jury found for the plaintiffs, and on the 19th day of February, 1910, of the January term of court and during the same term ■of court, and within four days after rendering said verdict and judgment, the defendant filed his motion for a new trial as follows:”

Then follows the motion.

The- appellant has not abstracted the record proper, nor has he shown that a bill of exceptions was ■ever filed in the case.

He sets out the pleadings, which we know are a part of the record proper; and then, follows a summary of the testimony, a copy of the instructions asked by him, then the words above quoted regarding the finding of the court and the filing of the motion for .a new trial; but there is nothing whatever to show, .as previously stated, that a bill of exceptions had been filed or that the matters mentioned even purported to have been taken for a bill of exceptions.

The words 4‘record,” “record proper” or “bill of exceptions,” or their equivalent, do not appear in the. .so-called abstract of record filed by appellant; but the simple bald statement, before quoted, appears, and so far as the abstract shows, may have been taken from some newspaper or from the tablets of counsel’s fertile imagination.

Moreover, the abstract does not show that a judgment was ever rendered in the cause; but the short transcript filed in this court discloses the fact that the judgment was rendered February 19, 1910.

After setting out what counsel terms the motions for a new trial and in arrest of judgment, he uses this language:

4 4 The motion for a new trial and motion for arrest were both overruled on the 26th day of February, 1910, ■of the January term of court, to which ruling and order of the court the defendant then and there duly excepted. ’ ’

"While as previously shown the abstract states in connection with the finding of the court that the motion for a new trial was filed within four days thereafter, but counsel for respondents, apparently not wishing to rest their case upon the abstract presented by counsel for appellant, which in fact is no abstract whatever, filed an additional abstract of the record setting out a certified copy of the record proper, regarding the filing of the motion for a new trial, which shows it was filed on February 26, 1910, instead of February 19th, as stated in appellant’s so-called abstract.

Upon this state of the record counsel for respondents insist that there is nothing before this court for review except the record proper, and that since the judgment of the circuit court is in response to the pleadings the judgment should be affirmed.

Through oversight, I presume, learned counsel for respondents have failed to indicate where we can find the record proper or the bill of exceptions.

However, the short transcript is here, and it shows that a judgment was duly rendered in favor of the respondents, and that an affidavit for an appeal was filed and the appeal was allowed; and there being no semblance of an abstract filed by appellant, the cause might be well dismissed “for failure.”

Since, however, the cause was regularly appealed to this court, and the judgment appearing upon its face to be regular in all respects, I can see no legal objection to granting the request of counsel for respondents to affirm the judgment of the circuit court ; and so believing, the judgment should be affirmed. It is so ordered.

All concur.


author: BLAIR, C. PEE CUEIAM.

text:
    PATRICK RILEY v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division one,
    April 2, 1914.
    1. LAW OF SISTER STATE: Injury in Kansas: Action in Missouri. The law of Kansas, when pleaded and put in evidence, governs in an action in Missouri to recover damages for an injury that occurred in Kansas.
    2. --: -: -: Negligence: Province of Court and Jury. By the laws of Kansas, if only one conclusion can he drawn from undisputed facts the question of negligence is one of law. If reasonable minds might differ upon that question, the jury must decide.
    3. -: -: -: -: Going Upon Railroad Track: . Injury to Employees. By the laws of Kansas any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains, and if, in disregard of his duty to his own safety, he steps upon the track without looking or listening he is guilty of such negligence as to bar an action for the injury. That general rule does not apply, however, to employees whose duties require their presence upon the track, the performance of which duties necessarily preclude the strictest attention to the approach of trains.
    4. -: -:--: -: -: -: Last Clear Chance: This Case. Plaintiff was in defendant’s employ as a section hand and had worked in that capacity for various roads for 25 or 30 years, but he was injured on the fifth day after entering defendant’s service. Where the injury occurred there were five or six tracks, and plaintiff testified that there had been a great deal of switching thereabout every day. He testified that on the morning he was injured he and three others, with the section foreman, were putting new ties in a track in the yard; that while so engaged a car was set in on the track on which he was working, and that, being therefore unable to continue until the car was removed, he stepped back from the track on which he had been working and “stood there a little longer, in the same place, a couple of minutes, and got hurt.” The car that struck him was moving eastward at the rate of four to six miles per hour, upon the track next south of that which plaintiff had just abandoned. Plaintiff said that he stood looking at the ground, or “at the work,” and that he knew there were several tracks to the south, and that he did not look to see how close he was getting to the nearest one, and after stepping hack did not' look either east or west along the track near which he stood, before the car struck him. The day was clear and there was nothing to obstruct plaintiff’s vision in either direction along the track near which he stood. There was evidence that the engine and cars made no noise as they approached and that no warning was given to plaintiff. There is no evidence that any member of the switching crew saw plaintiff’s danger until he was struck, and the section foreman and the hands did not observe it until the moment of the collision. Held, in accordance with the laws of Kansas, that the plaintiff’s recovery is barred by his contributory negligence, since his duties did not require his presence upon the track over which ran the car that struck him. Nor has he a right to recover on the last clear chance theory, for that doctrine is not extended in Kansas to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehom, Judge.
    Reversed.

      Cyrus Crane and George J. Mersereau for appellant.
    (1) (a) Plaintiff was guilty of contributory negligence as a matter of law and the case should be reversed on that account. Harlan v. Railroad, 65 Mo. 22; Hayden v. Railroad, 124 Mo. 566; Dyrcz v. Railroad, 238 Mo. 46. In .Kansas the rule as to contributory negligence is the same. Dyerson v. Railroad, 74 Kan. 528; Coleman v. Railroad, 123 Pac. 756; Dunlap v. Railroad, 123 Pac. 754; Marple v. Railroad, 85 Kan. 699; Beech v. Railroad, 85 Kan. 90; Jones v. Railroad, 85 Kan. 313; Railroad v. Adams, 33 Kan. 427; Clark v. Railroad, 35 Kan. 350; Railroad v. Davis, 37 Kan. 743; Railroad v. Townsend, 39 Kan. 115; Railroad v. Fisher, 49 Kan. 460; Railroad v. Holland, 60 Kan. 209; Railroad v. Willey, 60 Kan. 819; Railroad v. Trahern, 77 Kan. 803. (b) Plaintiff cannot excuse his contributory negligence by the plea that he relied on the foreman or some one else to warn him: Turner v. Railroad, 74 Mo. 607; Henze v. Railroad, 71 Mo. 640. Reliance on the observance by the railway of ordinances is no excuse. Green v. Railroad, 192 Mo. 131; Brag-g v. Railroad, 192 Mo. 331; Nixon v. Railroad, 141 Mo. 425; Reeves v. Railroad, 158 S. W. 2. Nor on watchmen. Hodgin v. Railroad, 143 N. C. 93; Tiffin v. Railroad, 93 S. W. 564; McGrath v. Railroad, 59 N. Y. 468; Smith v. Railroad, 141 Ind. 92; Golinoux v. Railroad, 125 Iowa, 162; Duncan v. Railroad, 46 Mo. App. 198; Weller v. Railroad, 120 Mo. 653; Dixon v. Railroad, 104 Mo. App. 491; Mockowik v. Railroad, 196 Mo. 550; Schaub v. Railroad, 133 Mo. App. 444. (c) In Kansas, where the accident occurred, the humanitarian rule is not applied as in Missouri and plaintiff has no case because his negligence continued up to the time the accident happened. The law as declared in Kansas where the accident occurred, is to he applied. Yost v. Railroad, 149 S. W. 577; Newlin v. Railroad, 222 Mo. 375; Root v. Railroad, 195 Mo. 345; Fogarty v. Transfer Co., 180 Mo. 490; Chandler v. Railroad, 127 Mo. App. 34. The Kansas rule prevents recovery. Dyerson v. Railroad, 74 Kan. 528; Coleman v. Railroad, 123 Pac. (Kan.) 756; Dunlap v. Railroad, 123 Pac. (Kan.) 754.

      Charles A. Stratton, Hale, Dean & Higgins and Bird & Pope for respondent.
   BLAIR, C.

— A freight car being propelled by one of defendant’s switch engines through the Armour-dale, Kansas, yards struck and injured plaintiff as he stood near the track over which it was moving. This appeal is from a judgment for plaintiff.

Both parties pleaded the law of Kansas and offered in evidence decisions of the Supreme Court of that State.

The question presented is the sufficiency of the-evidence to support a judgment against defendant.

Plaintiff was in defendant’s employ as a section hand and had worked in that capacity for various roads for twenty-five or thirty years, but he was injured on the fifth day after entering defendant’s service. At the place the injury occurred there were five- or six tracks, and plaintiff testified there “was lots-of switching done in that yard” and that “they had switched around there a good deal every day before-that.” He testified that on the morning he was injured he and three others with the section foreman, Young, were putting some new ties in one of the tracks-in the yard; that while so engaged a car was set in over the rail at the place at which he and another were working, and that being unable to proceed until this-car was removed, which he. understood would be done in a few minutes, he stepped back from the track on which he had been working and “stood there a little longer, in the same place, a couple of minutes and got hurt.” The car which struck him was moving eastward at the rate of four to six miles per hour, upon the track next south of that upon which plaintiff had been at work. Plaintiff said after he stepped back he-“just stood there right by the car, for a minute or two, ready to go to work at the other tie; ” that he ‘ ‘ stood looking' at the ground at that time;” that he “was-looking at the work;” that he knew there were several tracks south of that upon which he was working and did not look to see how close he was getting to the-nearest one, and, after stepping hack, did not look either east or west along the track, near which he-stood, before the car struck him.

The day was clear and there was nothing to obstruct plaintiff’s vision in either direction along the-track near which he stood when struck. There was-evidence the engine and cars made no noise as they approached plaintiff and that no warning was given him of their approach. There is no evidence that any member of the switching crew saw plaintiff’s danger until he was struck, and the section foreman and section hands did not observe it until the moment of the collision. There was gome evidence of a custom of section foremen to warn the section hands, while at work, of approaching trains, but at the moment plaintiff was struck Young was several feet away, instructing other section hands in the work they were doing, and plaintiff says he did not see Young after stepping back from his work and before he was struck. It is clear, however, that Young, from the place where he was engaged, could have seen plaintiff.

Counsel agree that the law of Kansas must govern the disposition of this case. In that State the rule is that, “If only one conclusion can be drawn from undisputed facts, the question of negligence is one of law. . . . If reasonable minds might differ upon that question, the jury must decide.” [Smith v. Railroad, 91 Kans. l. c. 33.]

With respect to the application of this rule, the Kansas decisions must control in this case. In that State the general rule prevails as formulated by the encyclopedists: “Any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains, and if, in disregard of this duty to his own safety, he steps upon the track without looking or listening . . . he is guilty of such negligence as to bar an action for the injury.” The exception recognized by the same authorities is also recognized in Kansas. It is that the general rule stated does not “apply to employees whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains.”

In Dyerson v. Railroad, 74 Kans. 528, one of the plaintiff’s duties was to supply cars with ice which he procured from a box four or five feet north of the northernmost rail of a double track. The lowest of three steps leading down from this box was about two feet from this rail. Plaintiff had prepared some crushed ice and was'standing west of the ice-box awaiting the arrival of a- car for which it was intended, when his foreman beckoned to him and pointd to the car which was to be iced, and plaintiff walked “between the ice-box and the track to get his bucket of ice, reached it, took hold of it and started to carry it to the car, and while on the lowest step and about to proceed across the track he was struck by the tender of a locomotive which was backing east on the north track at the rate of fifteen or twenty miles an hour, without signal of its approach being given and without a lookout along the track being kept, ’ ’ and in conformity with the change of rules, of which plaintiff was not advised, permitting the use of the north track by east bound trains. “The track was straight for a quarter of a mile west. It was a clear day and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked.” After stating these facts, the Supreme Court of Kansas said: “It is therefore manifest that the plaintiff’s omission to exercise due caution in his own behalf was fatal to his recovery, unless there was something in the peculiar circumstances of the case to take it out of the general rule.” The court then states the rule as above set out.

In responding to the argument that Dyerson fell within the exception applicable to those “whose duties require their presence on the track,” the court said: -“If he had been injured while standing upon the steps and engaged in breaking ice this might be true, for the performance of that duty might have rendered it impracticable for him to keep a strict watch for passing trains, and if while so engaged any part of his body ■could come within the overhang of the cars or locomotives the place was not a safe one to work in. But ■such was not the case. Whatever danger he might have been subjected to while filling his bucket with ice had passed. He had moved to a place of entire safety west of the ice-box and was awaiting an order to carry the ice .to a car. When the order came he had no duty ■for the time being but to get the bucket and carry it across the track to where the car stood. However ■great a degree of promptness or haste might have been expected of him, it was not essential that he should cross the track at any particular point, nor ■could his delaying until the engine and tender had passed have been material. He was simply in the position of one having occasion to get from one side •of the track to the other. The necessity of his picking up the bucket before crossing did not preclude his glancing up the track to see if it was clear.”

The court held: That the fact plaintiff habitually worked near the track and frequently crossed it did not justify any relaxation of vigilance on his part, but rather the contrary; that the change without ■notice to plaintiff of the rules relating to the track to be used by east bound engines and cars did not excuse plaintiff, being, at most, but negligence and therefore no different, so far as his contributory negligence was concerned, from the violation of any other rule, “whether relating to direction, or speed, or lookout, or signal of warning, or any precaution which a due regard for the safety of those about the yards might demand irrespective of formal regulations.” The court also said in this connection: “It is only when it has been established that the company has been negligent — that is, that some agent has omitted to do something which he should have done and which in a sense every one has a right to expect him to perform — that any occasion arises to consider whether a person injured has himself been at fault.” The court also held that the failure to discover plaintiff’s danger was of the same sort as negligence in regard to speed and signals and adding to negligence respecting these the negligent failure to discover plaintiff’s peril added nothing to the ease and subtracted nothing from the effect of his contributory negligence.

Applying these principles, approved by the Sureme Court of Kansas, plaintiff in this case was clearly guilty of contributory negligence in taking a position so near the track, south of that upon which he had been working, that a passing car would strike him, without looking along the track to see whether the switch engine he knew was at work in the yards was approaching. The fact that he stood for two minutes in this position increases instead of diminishes the degree of his negligence.

The failure to give a warning signal by bell, whistle or lookout upon the car, the failure to discover plaintiff’s danger, and the failure of the section foreman to warn plaintiff, conceding it was the custom for him to do so, constituted negligence on the part of defendant. Under the law as quoted, however, plaintiff’s contributory negligence bars his action, since he clearly does not fall within the exception to the general rule. That exception applies to employees “whose duties require their presence upon the track/’ and the reason for excepting such employees is because the performance of their “duties necessarily precludes their paying the strictest attention to the approach of trains.”

If the ear which was placed over the ties with which plaintiff was working had injured Mm, a different question would be presented. The placing of that car put an end, temporarily, to plaintiff’s activities, and he was not at work at all when struck, nor had he any duty to perform upon the track upon wMch the car wMch injured him was moving.

For two minutes, according to Ms testimony, and fifteen, according to that of some of Ms witnesses, he stood near the track with Ms back to it, looking neither to the right nor left and taking no precaution's for Ms own safety. Under the decision quoted, Ms contributory negligence bars recovery on the oMy theory upon which the case was submitted to the jury.

As supporting a contrary conclusion, plaintiff cites-: Missouri Pacific Railway Co. v. Bentley, 78 Kans. 221; Westine v. Railroad, 84 Kans. 213; Comstock v. Railroad, 56 Kans. 228; Dowell v. Railroad, 83 Kans. 562.

When injured, Dowell was removing cinders from the track; Comstock was leveling cinders between the rails; the jury found Bentley was tightening a bolt on the track; Westine was a brakeman and was upon the track giving signals to Ms own train which was upon another track; and the Supreme Court divided, four to three, upon the question whether his duty required! him to be upon the track upon which he was injured. The majority held it did and that he fell within the exception to the general rule above stated. Three judges held Ms duty did not require Ms presence on the track, and dissented. All the judges agreed to-the rule and the exception as the law of the case. The difference of opinion was, therefore, actually upon a question of fact.

In Ray v. Railroad, 82 Kans. 704, plaintiff was clearing from the track boards and tools wMch had been used in derailing a car, and it was held he fell within the exception.

None of these decisions is authority for concluding that Dyerson v. Railroad, supra, does not apply and govern the decision in this case under the law of Kansas, since plaintiff was not at work upon the track at all when injured and had not been at work at all upon the track upon which the car was moving which injured him.

It is cpntended the rule applied in Pittsburg Vitrified Paving & Building Brick Co. v. Fisher, 79 Kans. 576, applies and extends the operation of the exception applicable to employees at work upon the track to this case.

In that case plaintiff was one of four off-bearers working at a repressing-machine. The rule was that one rested while three worked. Plaintiff was resting when he learned that a brick making machine twenty-five or thirty feet from the repressing-machine was not working properly and started toward it and was caught by an unguarded set screw and injured. The court held plaintiff, in the circumstances, was engaged as an off-bearer as well when he was resting as when he was taking bricks from the belt of the repressing-machine ; that no particular resting place had been designated, and, consequently, that plaintiff might, while resting, occupy any vacant place near his own machine and in touch with his work from which he was not expressly forbidden; that defendant’s duty.to guard its machinery extended to all places' which off-bearers might reasonably be expected to use in the performance of their duties, including the taking of turns at resting, and that whether, in the circumstances, plaintiff went too far away was, at least, a question for the jury. The court" also held that the evidence war, ranted the jury in finding that plaintiff was not negligent.

That case does not resemble this. Here plaintiff took his position near a railroad track, itself a warning to danger, and stood there without giving any attention to his own safety until the car struck him. The switching crew was negligent; plaintiff was negligent, and under the Kansas decisions cited and quoted plaintiff’s negligence bars recovery.

The trial court was right in refusing to submit the case upon the doctrine of the last clear chance, since “that doctrine as it is applied by the Supreme Court of Kansas cannot aid plaintiff in the circumstances of this case. The doctrine in Kansas is that “this so-called exception to the rule of contributory negligence (i. e. the doctrine of the last clear chance) will not be extended to eases where plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.”

In the Dyerson case, applying this doctrine, the Kansas Supreme Court said: “In the present case it may be granted that the negligence of the plaintiff began when he walked between the track and "the icebox on the way to get the bucket, and that the employees in charge of the engine were themselves negligent in not discovering this negligence on his part and the peril to which it exposed him and taking steps to protect him. But his negligence, as well as theirs, continued up to the moment of the accident, or until it could not possibly be averted. His opportunity to discover and avoid the danger was at least as good as theirs. His want of care existing as late as theirs was a concurring cause of his injury and bars his recovery.” The court quotes from numerous authorities in support of its view.

In no case cited or which we have found reported has that court modified its holding upon this question.' but, on the contrary, the Dyerson case has been approvingly cited and the rule therein laid down consistently applied.

What has been said discloses that under the Kansas decisions plaintiff has no cause of action either on. the theory on which the case was submitted to the jury or under the doctrine of “the last clear chance” as the Supreme Court of Kansas understands and applies that doctrine. The judgment is reversed.

Brown, G.,. concurs. ■

PEE CUEIAM.

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

Woodson, P. J., and Lamm and Graves, JJ., concur.. Bond, J., concurs in the result.


text:
    ADA HARRISON v. HENRY CLEINO and SAMUEL N. PICKLER, Appellants.
    Division one,
    April 2, 1914.
    BRIEFS: Statement of Points: Appeal Dismissed for Failure.. Tlie appeal is dismissed for failure of appellant to observe, in making his brief, the second clause of Rule No. 15 of the Supreme Court, that “all briefs . . . shall contain, separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of the authorities appropriate under each point.”
    Appeal from Phelps County. — Eon. L. B. Woodside, Judge.

      Jones Bros, and G. E. Shnbert for appellants.

      G. G. Bland for respondent.
   WOODSON, P. J.

— The brief of appellants in this case is so flagrantly violative of the second clause of rule fifteen of this court, regarding the statement of the case, that we feel called upon to dismiss the appeal.

To tolerate a practice of this character, the court would waste much of its valuable time in trying to ascertain the points relied upon for a reversal of the case.

Clearly the meaning of the rule is, that the statement of the points shall be clearly and fully stated, in order that the court may comprehend therefrom the facts upon which the legal propositions presented for determination are predicated.

The only statement made of the case made by appellants is as follows:

. “1.
‘ ‘ The court erred in rendering judgment for plaintiff under the evidence in this case, and the law applicable thereto. (All authorities below.)
“2.
“The defendant Piclder was a bona fide purchaser and holder of the Weems note at the time he foreclosed the deed of trust given by Weems to Gulick to secure the notes, and had before maturity for valuable consideration acquired the notes, in good faith relying on the validity of the same. State Bank v. Frame, 112 Mo. 502.
“3.
“The defendant PicMer was not a party to nor in privity with the suit of Scanlan against Gulick in ejectment. [State ex rel. v. St. Louis, 145 Mo. 551, l. c. 567; Pepperdine v. Bank of Seymour, 100 Mo. App. 387, l. c. 396; 23 Am. & Eng. Ency. Law, p. 99; Womach v. St. Joseph, 201 Mo. 467, l. c. 476 et seq.]
“4.
“When he took the deed of trust from Gulick, Scanlan was put on notice as to the outstanding Weems notes and deed of trust and that Gulick-had sold- same to Pickier; he thus ‘fell into a pit he digged himself. [Coleman v. Reynolds, 207 Mo. 463, l. c. 479; R. S. 1899, sec. 925 (R. S. 1909, see. 2811); Meir v. Blume, 80 Mo. 179, l. c. 184; Gross v. Watts, 206 Mo. 373, l. c. 394-5; 2 Devlin on Real Property (3 Ed.), secs. 708, 727, 741 and 742; Sensenderfer v. Kemp, 83 Mo. 581 (bottom l. c. 588); Allen v. Ray, 96 Mo. 542, l. c. 548; Taaffe v. Kelley, 110 Mo. 127, l. c. 137; Abbe v. Justus, 60 Mo. App. 300; 2 Pom. Eq. Jur. (3 Ed.), sec. 594; Clark v. Lewis, 215 Mo. 173, l. c. 188; State Bank v. Frame, 112 Mo. 502, l. c. 512.]
“5.
“In the Scanlan v. Gulick case the question at issue was possession as between Scanlan and Gulick, and the outstanding Weems deed of trust would not control nor affect that issue, and the validity and force of the deed of trust by Weems was not properly a matter in judgment in that case. The ‘thing demanded’ was not identical with that demanded by Pickier in this case. [Womach v. St. Joseph, 201 Mo. 467, l. c. 476.]
“6.
“In the Scanlan case the question of outstanding title in Weems was in issue, but that question is not set at rest on the proof in this case by production of the deed itself, conveying the title from Gulick to Weems, supported by contemporary witnesses. [Williams v. Butterfield, 214 Mo. 412, l. c. 429.]”

From this statement no lawyer, judge or layman can form an intelligent idea of the case, much less of the legal propositions relied upon for a reversal of the judgment.

This so-called statement is nothing more than an assignment of errors required by the third clause of said rule fifteen, with authorities cited.

This being true, the appeal is dismissed “for failure” under the authority of rule sixteen.

All concur.


author: PER CURIAM.

text:
    SARAH E. SCOTT v. KANSAS CITY, LAWRENCE & TOPEKA ELECTRIC RAILROAD COMPANY, Appellant.
    In Banc,
    April 2, 1914.
    AMENDED ABSTRACT: Court of Appeals Decisions: Conflict. Whether or not there is a conflict between the decision of the Kansas City Court of Appeals and a prior decision of the St. Louis Court of Appeals concerning the right of appellant to file an amended abstract out of time (there being some difference in the rules of the two courts), if the Kansas City Court of Appeals, having rules much like those of the Supreme Court, followed the decisions of the Supreme Court and affirmed the judgment on the record, its decision holding that the amended abstract was untimely filed will be adopted.
    Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.
    Affirmed.

      Tates & Mastín for appellant.

      T. J. Madden for respondent.
   PER CURIAM.

— This cause reaches this court upon a certification by the Kansas City Court of Appeals. That court refused to permit an amended abstract of record to be filed, and affirmed the judgment, upon the record proper — 154 S. W. 862. It certified the case here upon the ground that its opinion was in conflict with an opinion in Hemphill v. Morehouse, 162 Mo. App. 566, by the St. Louis Court of Appeals. We donbt whether there is actual conflict of opinion between these two appellate courts, when the respective rules thereof are considered, but, if there is conflict, the Kansas City Court of Appeals (having rules much as our own) has followed our cases — vide opinion of that court in 154 S. W. 862. Upon this status of the case, we adopt that opinion, and sustain the respondent’s motion to affirm the judgment. The amended abstract of record comes too late under the rulings, and it cannot be filed. The cases upon this question are set out in the Kansas City Court of Appeals opinion. Let the judgment be affirmed.

All concur.