author: BOND, C. PER CURIAM:

text:
    THE STATE v. DOW HELTON, Appellant.
    Division Two,
    May 23, 1911.
    1. INFORMATION: Assault: Felonious. An information charging that defendant did “feloniously” make an assault with a pistol “with the intent, him, the said T. A. Stevens, then and there to kill,” is sufficient under Sec. 4482, R. S. 1909, although it does not use the word “felonious” or “feloniously” in the last clause.
    2. INSTRUCTION: Intended to Cover Whole Case: Omission of . Necessary Elements. An instruction which purports to cover the whole case and directs a finding must embrace all the issues and law applicable to them. It must not ignore any essential element of the offense charged, and it cannot be pieced out by other instructions. An instruction telling the jury that “if you find and believe from the facts and circumstances in evidence that the defendant at any time about the 30th of January, 1910, in Shannon county, Missouri, did assault T. A. Stevens by then and there shooting him with a pistol, with intent to kill him or do him some great bodily harm, then you should find defendant guilty as charged; and assess,” etc., is reversible error, since it does not require a finding that the intent was in furtherance of a wrongful act willfully done, and omits the element of self-defense raised by the pleadings and evidence. Nor is that omission cured by another instruction defining self-defense and asserting defendant’s right thereto.
    3. -: Omission of Word Feloniously. It is not necessary that the word “feloniously” be used in an instruction. That ■ word is used in an indictment or information to classify an offense — not in an instruction to define a crime.
    Appeal from Shannon Circuit Court. — How. W. N. Evans, Judge.
    Reversed and remanded.

      Orchard and Cunningham for appellant.
    The court erted in giving instruction 1. The court-should have instructed the jury that if it found from the evidence that the defendant at any time about the 30th day of January, 1910', in Shannon county, Missouri, did feloniously, on purpose and willfully assault T. A. Stevens, by then and there shooting him with a pistol, etc. It is the rule in all felony cases that it must be charged to be feloniously done and the instructions always contain the word feloniously. State v. Clayton, 100 Mo. 521; State v. Manly, 107 Mo. 364; State v. Noland, 111 Mo. 496.; State v. Rutherford, 152 Mo. 131. '

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
    (1) The indictment is bottomed on Sec. 4482, R. S. 1909, and is in approved form. State v. Hendrickson, 165 Mo. 262. (2) The first instruction given by the court predicates the facts and elements charged in the information and essential to the crime.
   BOND, C.

— The appellant, Dow Helton, was convicted of a felonious assault and sentenced to two years in the penitentiary at the March term, 1910', of the circuit court of Shannon county. The prosecution was under the provisions of section 4482, Revised Statutes 1909.

On the trial there was evidence tending to show that the prosecuting witness, T. A. Stevens, and one Jack Bunyard, in January, 1901, were passing through Kellar’s Camp; that they observed appellant, Dow Helton, and two others fall in behind and follow their track three hundred yards, where they passed a house, into which the prosecuting witness and his companion had stopped for about five minutes to pay some lodge dues; that upon coming out of the house, the prosecuting witness and Bunyard followed in the wake of the appellant and his companions until all parties had gotten into a field, at a distance from each other of about seventy-five yards; that at this point the prosecuting witness took his knife out of his pocket, opened it and placed it open back in his pocket; that at the same time appellant and those with him turned around and met the prosecuting witness and Bunyard about midway of the distance between them when they turned back.

As to what ensued the respective versions of the two parties are conflicting. The testimony of the prosecuting witness, Stevens, and Bunyard was to the effect that Bunyard spoke to Dow Helton, saying that he' thought he (Helton) was going to Summerville to-day; that Helton replied, “I didn’t go,” and thereupon turned to Stevens and addressed him, to-wit: “Tom, you had no right to hit Oscar Collar the other night;” that Stevens replied, “I don’t know;” that Helton rejoined, “You don’t, I am going to whip you.” To which Stevens responded, “I ain’t got anything agin you, and I don’t want to fight.” To that Dow Helton added, “You got to whip me or get whipped;” and thereupon pulled off his coat and laid it down; that he struck at the prosecuting witness three times, reaching him on the last stroke with a glancing blow;, that the prosecuting witness pulled his knife and struck him with it; that thereupon Helton pulled a revolver and struck the prosecuting witness on the side of the head, and shot him in the calf of the leg as he started to run, and snapped the pistol about a dozen times thereafter.

The account of the transaction given by the witnesses for the appellant was, in substance, to-wit: that upon the meeting of the two parties a colloquy took place, wherein Helton spoke to Stevens about having misused some boys at a dance “the other night,” to which Stevens replied, “You don’t look big 'to me; I would just as soon get hold of you as them boys;” that thereupon Helton pulled off his coat, and as he straightened himself up Stevens struck him with a knife; that thereupon Helton pulled his pistol and struck Stevens with it on the side of the head; that Stevens drew back and attempted to make another lick and started to run and was shot in the leg.

Dow Helton testified in his own behalf that he had pulled off his coat to have a fair fight; that he made no attempt to pull a pistol until Stevens had struck him with a knife, and then he struck Stevens on the side of the head with the pistol, whereupon Stevens threw up his hand with the knife, and he thought he. would shoot if Stevens hit him again; that he shot intending to “kinder cripple him;” that he did not snap the pistol thereafter.

The result of the encounter, showed that Dow Helton received a knife wound in the twelfth rib, extending about three inches and striking the bone and that Stevens received a bullet in the calf of his leg.

The court submitted the case to the jury upon instructions, the first of which undertook to define the elements of the offense with which appellant was charged, and directed the jury if they found the facts thus hypothesized, from the evidence, they should find the appellant guilty as charged. The other instructions given by the court relate to the right of self-defense, credibility of witnesses, competency of appellant as a witness in his own behalf, and that the filing of an information was a mere formal charge and afforded no evidence of guilt on the part of appellant.

After unsuccessful motions for a new trial and in arrest, the cause was appealed to this court.

I. The information in this case was framed according to the provisions of section 4482, Revised Statutes 1909. That statute was reviewed by the court in the case of State v. Clayton, 100 Mo. 516. It was held to be a statutory felony, although it was only a misdemeanor at common law. It was ruled that “being thus a felony, it was indispensable that the indictment should charge that the act, to-wit, the assault, was done with a felonious intent, because without a felonious intent there can be no felony.” This rule was observed in framing the information in the present case, which as to its charging parts is in the following words, to-wit: “Informs the court that Dow Helton, on or about the 30th day of January, 1910, at the said county of Shannon, State of Missouri, did then and there, in and upon the .body of one T. A. Stevens, then and there being, feloniously, on purpose and willfully, with a deadly weapon, to-wit, a pistol loaded with gunpowder and leaden balls, which the said Dow Helton then and there had and held, did then and there make an assault with the intent, him, the said T. A. Stevens, then and there to kill; against the peace and dignity of the State.”

An indictment containing the same language and based upon the same statute was before the court in the case of State v. Hendrickson, 165 Mo. l. c. 267. In speaking as to the sufficiency of the indictment in the case, the court said: “The word feloniously is used only once in the indictment, and then with respect to the character of, and the intent with which the.assault was committed. It in substance charges that Hendrickson feloniously made an assault upon the body of one D. S. Hanes, with a deadly weapon, to-wit, a knife, with intent to kill him. The indictment follows the language of the statute in defining the offense; and the offense being a statutory one, that is all that is necessary.”

Hence, it is clear that- the information in the case at bar contains a complete definition and charge of the statutory felony created in section 4482, R. S. 1909.

II. The next question is whether or not there was prejudicial error in the instructions. The first instruction is, to-wit:

“If you find and believe from the facts and circumstances in evidence in this case that this defendant at any time about the 30th of January, 19101, in Shannon county, Missouri, did assault T. A. Stevens by then and there shooting him with a* pistol with intent to kill him or do him some great bodily harm, then you should find the defendant guilty as charged.”

The remainder of the instruction refers to the punishment specified in the statute.

It is a settled rule of law both in criminal and civil cases that an instruction which purports to cover the whole case and directs a’ finding, must embrace all the issues and the law applicable to them. It is but a corollary of this proposition that such an instruction in a criminal proceeding must not ignore any essential elem.ent of the offense charged, and that it cannot be pieced out by the contents of other instructions.

In speaking of this principle, this Division, in the case of State v. Lentz, 184 Mo. l. c. 235, having under review an instruction which failed to require the jury to find that the embezzlement or conversion of money by an agent was “without the assent of his employer,” said: “By this omission that instruction was erroneous, because it failed to require the jury to find from the testimony an essential element of the offense defined by the statute. . . . It is argued by respondent that instruction numbered 1 fully met this requirement, hence there was no error in the omission in number 2. That would be true if instruction numbered 2 was only applicable to some particular element of the offense, and undertook to direct the jury as to that alone; but an e.samination of instruction numbered 2 will demonstrate that it purports to cover the entire case, as doubtless it was intended to do.”

The giving of this instruction was error under the issues presented by the evidence. The essential infirmity in the instruction is, that it conditions the guilt of the appellant upon the bare “intent to kill or do some great bodily harm” in the act of shooting, without requiring any further finding as to whether that “intent” was in furtherance of a “wrongful act willfully done,” or of a design to exercise the right of self-defense belonging to every man. The issue of self-defense was raised by the pleadings and the evidence. The court realized this fact and gave a separate instruction, submitting that issue to the jury. This, however, did not have the effect of remedying the exclusion of that phase of the case from the instruction under review, for it was so framed as to cover the entire case and direct a finding of guilt on the part of the appellant, provided he entertained any intent “to kill or do great bodily harm,” regardless of the fact that such intent would have been entirely justifiable if the jury believed he was acting solely in self-defense. The fault of the instruction is, that it only required the finding of an “intent to kill or do great bodily harm,” whether justifiable and innocent or wrongful and willful, to make it the duty of the jury to bring in a verdict of guilt. j If the separate instruction, given by the court, as to the right of self-defense had been hypothesized in the instruction under review by inserting a clause definitive of the intent between the words “harm” and “then,” such as, to-wit, “And that such shooting was not done under circumstances which justify it as an act of self defense as defined in another instruction” (State v. McNamara, 100 Mo. l. c. 105), it would have-properly embraced all the issues presented in this case; or, if a clause tantamount to the following, to-wit, “Without just cause or provocation, as is explained in another instruction, ’ ’ had been aptly inserted in the instruction, it would have been a correct exposition of the law governing the guilt or innocence of the appellant.

It was not necessary, as counsel for appellant contends, that the word “feloniously” should have been used in the instruction. That word is employed in an indictment or information to classify the offense. It is by no means essential that the word “feloniously” should be used in the instructions to the jury. [State v. Cummings, 206 Mo. l. c. 623-624]

The vice of tbe instruction under review is that it contained no word descriptive of tbe “intent” of tbe shooting, equivalent to those herein suggested, and that it made it the absolute duty of the jury to return a verdict of guilt without finding that appellant was actuated by the wrongful and willful intent contemplated by the statute.. It did not contain a full and complete presentation of the issues and the law applicable to. them..

For these reasons, the cause is reversed and remanded for a new trial.

Boy, G., concurs.

PER CURIAM:

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: ROY, C. PEE CURIAM.

license: Public Domain

text:
    THE STATE v. J. H. HOLT, LEE HUNTER and J. A. CRESAP, Appellants.
    Division Two,
    May 23, 1911.
    BAIL BOND: Taken by Sheriff. The sheriff has authoriiy to admit to bail a person committed to jail by a justice of the peace, on account of failure to give bond, to await the action of the circuit court, where the amount of bail has been fixed by the justice and indorsed on the warrant of commitment. Sec. 5126, B, S. 1909, specially says that “when any sheriff . . . shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, . . . such officer may take bail,” etc.
    Appeal from New Madrid Circuit Court. — Eon. Henry G. Riley, Judge.
    Affirmed.

      John 'E. Bradley, W. G. Bray and J. T. McKay for appellants.
    (1) When a justice of the peace, having in charge the examination of a person under arrest on a -charge of crime, issues his warrant of commitment and delivers it to the sheriff, the prisoner can he discharged on hail or otherwise only by a court or magistrate authorized to issue writs of habeas corpus. State v. Caldwell, 124 Mo. 509 ;' State v. Randolph, 26' Mo. 213; R. S. 1899, sec. 2469; R. S. 19Ó9, sec. 5048. (2) A bond taken by a-sheriff without authority of law as a bail bond, cannot be enforced as a common law bond. State ex rel. v. Frasier, 165 Mo. 242. (3) A bond or recognizance taken in a criminal case before an unauthorized person has no savor of validity about it. State v. Caldwell, 124 Mo. 509; State v. Nelson, 28 Mo. 13; State v. Watson, 54 Mo. App. 416; State v. Cross-white, 195 Mo. 1. (4) The taking of a bond by an unauthorized person is not an irregularity within the meaning of section 2800', E. S. 1899, which only applies to irregularities in form. State v. Crosswhite, 195 Mo. 1. (5) Warrant of commitment as used in section 2546, E. S. 1890, means a warrant issued by a court of record upon an information or indictment. State v. Jenkins, 24 Mo. App. 433. (6) When the defendant is in custody or under arrest for a bailable offense, the judge of the court in which the indictment or information is pending may let him to bail and take his bond or recognizance. E. S. 1899‘, sec. 2543; State v. Caldwell, 124 Mo. 509.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Section 5126, E. S. 1909. The scire facias shows that Holt was in custody of the sheriff under warrant ‘ ‘ of commitment on account of failing to find bail, ’ ’ and the answer admits that the justice fixed the amount of bail at five hundred dollars, the penalty of the bond taken by* the sheriff. And, if the bill of exceptions is to be considered, it shows that the justice indorsed the amount of bail on the back of the warrant. If the bill of exceptions cannot be considered, then the allegations of the writ and answer raise the presumption that it was so indorsed. State v. Jenkins, 24 Mo. App. 435. The bond, consequently, was taken by the proper officer and in the proper amount. Besides, the statute eliminates technicalities in proceedings of this kind. R. S. 1909, sec. 5019. (2) The case of State v. Randolph, 26 Mo. 216-, was decided before the enactment of section 5126, and, besides, it was wholly different from the case at bar. There the justice of the peace attempted to take a bond under circumstances in which he did not then and would not now have any shadow of authority. In the case of State v. Caldwell, 124 Mo. 511, the clerk of the circuit court attempted to take bail. That case is also wholly unlike this. In the case of State ex rel. v. Fraser, 165 Mo. 258, the sheriff had done exactly what the sheriff in this case did not do. There he attempted to take bail in a sum different from that fixed by the court on arraignment. Here the sheriff took bail in the exact sum fixed by the justice on commitment. In the case of State v. Nelson, 28 Mo. 13, Nelson was indicted in St. Charles county, and a bond taken by a judge of the county court of Dallas county was held bad. The case of State v. Crosswhite, 196> Mo. 1, is so entirely different from the case at bar that comment is unnecessary. The case of State v. Jenkins, 24 Mo. Appi 433, is an authority against appellants. It certainly does not warrant the construction put .upon it in appellants’ brief. The case of State v. Watson, 54 Mo. App. 416, simply holds that the judge of the probate court, after indictment, cannot admit to bail in a felony case without the issuance of a writ of. habeas corpus.
   ROY, C.

— This is a proceeding by scire facias on a bond given for the appearance of the defendant Holt, in the circuit court of New Madrid county, to answer a charge of grand larceny.

The appellants herein, Lee Hunter and J. A. Cresap, were sureties on the bond. The defendant Holt forfeited the bond and the sureties were duly served with process. Judgment was rendered against them for the amount of the bond, and they have appealed.

Holt was' arrested on a warrant issued, on April 9, 1908, by J. D. Stop, a justice.of the peace of New Madrid county, and on the same day he was brought before the justice to answer. He waived preliminary examination, and bail was fixed by the justice at the sum of five hundred dollars, and in default of bail he was committed to jail to await the action of the circuit court. The amount of his bail as so fixed was at the time indorsed on the warrant' of commitment by the justice. Holt was held in custody by the jailer under the warrant of commitment from April 9th until April 18,1908, when he was released bn the bend now in controversy, which was taken and approved by the sheriff in the amount fixed by the justice.

The information charging Holt with grand larceny was filed September 10, 1908, in the circuit court, and a default was entered at the September term, 1908,

I. The point is made by the Attorney-G-eneral that the bill of exceptions was not signed by the trial judge, but as he concedes that the question in issue can be raised on the record proper, no further notice will be taken of that proposition.

II. The appellants contend that section 5126, Revised Statutes 1909, does not authorize the sheriff to admit to bail a person committed to jail by a magistrate on account of failing to give bond to await the action of the circuit court when the amount of bail has been fixed and indorsed on the warrant by the magistrate. That section is as follows:

“When any sheriff or other officer shall arrest a party by virtue of a warrant upon an indictment, or shall have a person in custody under a warrant of commitment on account of failing to find bail, and the amount of bail required is specified on the warrant, or if the case is a misdemeanor, such officer may táke bail, which in no case shall be less than one hundred dollars, and discharge the person so held from actual custody.”

It must he that a prisoner confined in jail under such circumstances is in the custody of the sheriff in accordance with provisions of section 1573, which provides as follows:

“The sheriff of each county in this State shall have the custody, rule, keeping and charge of the jail within his county, and of all the prisoners in such jail, and may appoint a jailer under him, for whose conduct he shall he responsible; hut no justice of the peace shall act as jailer, or keeper of any jail, during the time he shall act as such justice.”

None of the authorities cited by appellants supports their contention. On the other hand, the plain reading of the section in controversy supports the validity of the bond. That construction is supported by other sections of the statute in pari materia. It will be noticed that section 5048 provides for commitments to jail by courts and judges. Section 5041 directs the magistrate to indorse on the warrant of commitment the amount of bail required. This section plainly contemplates that the bail shall he taken pursuant to section 5126' by the sheriff, as was done in this case.

The judgment herein is affirmed.

Bond, G., concurs.

PEE CURIAM.

— The foregoing report of the commissioners is hereby adopted as the opinion of the court.


author: LAMM, J.

text:
    ROBERT S. PENISTON et al., Appellants, v. HYDRAULIC PRESS BRICK COMPANY et al.
    Division One,
    June 1, 1911.
    1. QUIETING TITLE: Section 650: Equitable and Legal Proceeding. A case under section 650, Revised Statutes 1899 (now Sec. 2535, R. S; 1909), is at law or in equity according to circumstances. Under that provision of the Constitution which says that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” all issues triable by a jury prior to the adoption of the Constitution are still so triable, and all cases brought under that statute which hinge alone on facts which bring them within the ten-year or thirty-year Statute of Limitations, and no equity is pleaded, are triable by a jury. On the other hand, if, under the Code of Civil Procedure, the case stands in equity, it is governed by equitable proceedings.
    2. -: To Separate Tracts of Land Owned By Separate Defendants: Misjoinder: Judgment on the Pleadings. Where suit is brought to quiet the title to 306 acres of land in a city, described in the petition as a single tract, against 475 defentiants, and they answer separately, each setting up title, ownership and possession in himself to a separate lot, and disclaiming any title or interest in or posession of any other land described in the petition, and pleading both the ten-year and the thirty-year Statute of Limitations, and to each answer plaintiff replies, alleging the land had been divided into many blocks and lots, but without authority, knowledge or consent of plaintiffs, and admitting that no one of the defendants claims an interest in all the property described in the petition and admitting that each only claims and is in possession of the lot described in his answer, the suit is an action at law, and there has been a misjoinder of parties and causes, and a motion by defendants for judgment on the pleadings is properly sustained. Such a joinder would necessitate 475 trials before a jury, and it is intolerable that the judgment upon each separate verdict should await the trial,of all other issues as to each of the other defendants, in order that thereby but one final 'judgment may be rendered.
    3. -: -: -: Practice: Demurrer: Answer. In a suit to quiet title, if the petition shows on its face a misjoinder of causes of action or of parties, it is demurrable. But where such defects do not appear upon the face of the petition, the objection may be taken by answer.

      4. -: Multifariousness: Equity: Severance. There must be such common relation, common interest or common question involved that one proceeding in equity may avail to prevent a multiplicity of suits and permit a general bill of peace, before different causes against separately interested defendants can be joined in one suit. Where there is no common interest, or common relationship, or common question relating to the subject-matter, decisive of the controversy, and each of many defendants stands upon his own title under the Statute of Limitations, and there is a right to a severance and a separate trial existing in favor of each of them, the right to join the various causes does not exist, and the equitable rule against multiplicity is not applicable; for, in that case, a multiplicity of suits is avoided only in name, and at the beginning, not at the ' end.
    5. -: Res Adjudicata. A former adjudication exactly in point is dispositive of the instant case, unless overruled or distinguishable in vital matter.
    6. -: -: Common Source of Title. Two cases are not differentiated by the fact that ,the later sets up a common source of title, while the former did not, if in each case defendants relied upon limitations.
    7. -: -: Allegation in Motion to Advance. The propriety of a judgment for defendants on the pleadings, on the ground of multifariousness, is not affected by an allegation made by some of the defendants in their motion in the appellate court to advance. The real question on appeal is whether the ruling in the trial court, upon the record as there made, was right.
    Appeal from the St. Louis City Circuit Court. — Eon. W. B. Eomer, Judge.
    Affirmed.

      E. W. Femmer for appellants.
    (Í) The plaintiffs’ petition was not multifarious for the reason that it joined numerous defendants who claimed distinct and separate parcels of land, unconnected from the other defendants, for the reason, as set forth in plaintiffs’ reply, that the defendants all claim title to the property described in plaintiffs’ petition through a common source, and that plaintiffs claim the same property by a paramount title to that of the defendants. It is not necessary, in order to avoid misjoining* parties defendants, that each defendant should claim an interest in the whole land in controversy. Railroad v. Dyer, 5 Fed. 366; Caines v. Mausseaux, Caines v. Cronan, Caines v. Compton, 9 Fed. 1049'; Wilson v. Castro, 31 Cal. 431; 5 Ency. PI. and P'rac. 675. The first three cases above cited adjudicate the very point before this court in the cause at bar, and the facts in those cases are almost identical to the ones before this court. (2) When the point in issue is a matter of common interest among' the parties to the suit, though the interest of the separate defendants are otherwise unconnected, still they may be joined. Reddick v. Newbnrn, 76 Mo. 423 ; Michael v. City of St. Louis, 112 Mo. 616; Donavan v. Dunning, .69 Mo. 438; Story Eq. Plead., sec. 285', 285a, 286; Rogers v. Blackwell, 49 Mich. 392; 15 Ency. Plead, and Prae. 676-677. (3) It is not necessary that each defendant should have an interest in the suit co-extensive with the claim set up by the bill; he may have an interest in a part of the matter in litigation, instead of the whole. Ingersoll v. Kirby, Walk. (Mich.) 65>. (4) Where one general right is claimed in the bill covering the whole case,, separate persons may be joined as .co-defendants, though they may have wholly distinct rights in the subject-matter of the suit. 15 Ency. Plead, and Pkac. 677; Kingsbury v. Flowers, 65 Ala. 479; Brown v. Solary, 37 Fla. 102; Bowden v. Achoi', 95 Ca. 243; Railroad, v. Branch, 78 Ga. 113; Dimmock v. Bixby, 201 Pick. (Mass.) 368. (5) So where the same relief is asked against several defendants, and the liability of all the defendants arises out of the same transaction, or where they derive their titles from ia common source and are charged with combination and fraud, and are all interested in the subject-matter of the suit there is no misjoinder of parties, although as to portions of the realty their titles may be distinct. Í5 Eficy. Plead, and Prac. 678. (6) It is wholly immaterial whether the interests of the several defendants are, or are not, in conflict with each other. Joinder is permitted in this class of cases for the purpose of avoiding a needless multiplicity of suits. 15 Ency. Plead, and Prac. 679; Lenz v. Prescott, 144 Mass. 505; Wilson v. Castro, 31 Cal. 428; Kennedy v. Kennedy, 2 Ala. 571; Brinnerhoff v. Brown, 6 Johns. Ch. (N. Y.) 151; Land Co. v. Guinault, 37 Fed. 523. (7) If there is any difference under the code, the rule is more liberal in permitting joinder of parties than in ordinary equity eases. Fairfield v. Bank, 77 Conn. 423; Demarest v. Holdman, 157 Ind. 467; West Muncie Straw-board Co. v. Slack, 164 Ind. 21; 30 Cyc. Law and Proc. 127, subd. 4. (8) A community of interest among de fendants is necessary, but it is a community of interest in something wider than the precise “subject of action” between plaintiff and each defendant — it is a community of interest “in the controversy.” 30 Cyc. Law and Proc. 128; Fairfield v. Bank, 77 Conn. 423; Cemetery Assn. v. Peecher, 53 Conn. 555'.

      Eliot, Chaplin, Blayney & Bedal, Nagel Kirby. Stewart, Bryan, Christie & Williams, Harold R. Small, A. & J. F. Lee, Geo. W. Lubke & Geo. W. Lubke, Jr., Theodore C. Eggers, Harmon J. Bliss, and Alexander Rahm for respondents.
    (1) The character of the suit provided for by Sec. 2535', R. S..1909, is dependent upon the issues raised in the pleadings. If the issues thus raised are such as áre triable before a jury, then the parties are entitled to a jury.' Where the defendants in a suit under section 2535 plead title acquired by the Statute of Limitation, the action is legal, and the defendants are entitled to a trial by jury. Minor v. Burton, 228 Mo. 558; Chilton v. Comanianni, 221 Mo. 695-; Lee v. Con-ran, 213 Mo. 404. (2) Where in a suit under Sec. 2535, R. S. 1909, each defendant disclaims interest in the entire tract described in the petition, but claims a distinct, several and sole interest in a certain portion thereof, and claims title to that portion by reason of title arising by adverse possession, then there is a misjoinder of the defendants, and a misjoinder of causes of action, since the action as between plaintiff and each of the defendants so pleading is an action in which the issues are separate and distinct from the issues presented a,s between plaintiff and every other defendant. Chaput v. Boclc, 224 Mo. 73; 111. Steel Co. v. Schroeder, 133 Wis. 561; Buchanan Co. v. Adkins, 175 Fed. 692; Slosson v. McNulty, 125 Ala. 124. (3) Equity permits a joinder of defendants and a joinder of causes of action to avoid multiplicity of suits, but if the joinder would not prevent a multiplicity of suits and issues, this fact alone will defeat the joinder of defendants and causes of action. 1 Pomeroy, Equity Jurisprudence (3 Ed.), Sec. 251%; Tribbette v. Railroad, 70 Miss. 182; Hale v. Allinson, 188 U. S. 56; Hale v. Allinson, 102 Fed. 7901; Tompkins v. Craig, 93 Fed. 885'; Railroad v. McFarlan, 3 N. J. Eq. 135; R'ayner v. Julian, 2 Dickens, 677; O’Brien v. Fitzgerald, 39 N. T. Sup. 709; Webb v. Parks, 110 Ga. 639 ; Portwood v. Huntress, 113 Ga. 8191; Scott v. McFarland, 70' Fed. 280: (4) A petition in a suit against 475' defendants to quiet title to a tract of land comprising 306 acres in the city of St. Louis, to- which each defendant filed a separate answer, each claiming to own a separate lot in said tract in severalty, and pleading a ten-year adverse possession, to which plaintiff replied, admitting that each defendant claimed in severalty the particular lot occupied by him and made no claim to any other part of the tract, is bad for multifariousness, and was properly dismissed. Ferguson v. Paschall, 11 Mo. 267 ; Sutton v. Casseleggi, 77 Mo. 397; Mullen v. Hewitt, 103 Mo. 639; Gardner v. Robertson, 208 Mo. 605; 111. Steel Co. v. Schroeder, 133 Wis. 561; Hale v. Allinson, 188 U. S. 56; Chaput v. Bock, 224 Mo. 73. (5) Sec. 650, R. S. 1899 (R. S. 1909, Sec. 2535), does not justify such multifariousness. That section must be read in connection with the following section, and with the Code of Civil Procedure, and under the code if a petition on its face shows a misjoinder-of causes of action it is demurrable, but if the defect does not appear upon its face, the objection may be taken by answer. Chaput v. Bock, 224 Mo. 73. (6) In order to justify the bringing by one plaintiff of a suit against numerous defendants there must exist among the defendants, or between each of them and the plaintiff, a common right, a community of interest, in the subject-matter of the controversy, or a common title from which all their separate claims and all the questions at issue arise. Chaput v. Bock, 224 Mo. 73. (7) The Code of Civil Procedure of this State providing for further pleading after the reply only in case the reply is demurrable, it follows that it is not necessary to traverse any allegation of new matter contained in such reply, and a failure to traverse or a motion of defendant for judgment on the pleadings does not admit the truth of such allegation. R. S., 1909, Sec. 607. (8) To' authorize a party to unite in the same petition several causes of action they “must affect all the parties to the action and not require different places of trial, and must be , separately stated with the relief sought for each cause of action in such manner that they may be intelligibly distinguished.” R. S. 1909, sec. 1795. ""When all parties to the suit are not interested in each count of the petition there is a misjoinder. Beattie v. Gerardi, 166 Mo. 143. And when there are several causes of action there must be separate verdicts or findings on each of them. State v.' Peterson, 142 Mo. 526. (9) Adverse possession of realty for ten years not only bars recovery, but vests perfect title in the adverse holder. Sherwood v. Baker, 105 Mo. 477; F'ranklin v. Cunningham, 187 Mo. 196'. "Whether or not the adverse claim and the possession thereunder was sufficient to confer title must be determined by fhe evidence in each case and must be left to tbe jury when title by adverse possession is pleaded. G-ordon v. Park, 202 Mo-. 236.
   LAMM, J.

— Plaintiffs sue in the circuit court of tbe city of St. Louis in 1906. Defendants are tbe Hydraulic Press Brick Company, a, corporation, and 474 other corporations and individuals. The object of the suit is to try the title and determine the interests of plaintiffs and defendants respectively in and to 306 acres of land west of King’s Highway in the city of St. Louis. [See Sec. 650, R. S. 1899; now Sec. 2535, R. S. 1909.]

Defendants answered separately. Plaintiffs replied and thereafter defendants moved for judgment on the pleadings. That motion was sustained on the 10th day of February, 1910', and (from a final judgment then rendered) plaintiffs appealed.

In October, 1910, one hundred and fifty of the defendants filed their motion in Banc-to advance the cause. The showing made thereby was .(among other things) that some of the corporate defendants were using the tracts claimed by them severally for business purposes; that some portion of the land was unimproved ; but that for the most part the land was claimed and occupied by individual defendants, who resided thereon in their homes; that from 1600' to 2000 people resided there, who were either defendants or members of their families; further, in substance, that the ■ claim of defendants was an ancient and stale one, viz., the same held in judgment by this court in Peniston v. Schlude, 171 Mo. 132 (wherein dramatic features appealing to the student of early annals are exploited); that the law question raised by the motion for judgment on the pleadings was settled in Chaput v. Bock, 224 Mo. 73; that plaintiffs’ old and shadowy claim was being held in terrorem for the purpose of tribute and speculation over the heads of the residents of St. Louis claiming lots and parcels of land within the described tract, -thereby casting a clond on their titles and preventing alienation and renewals of mortgages ; that delay fostered and fed the evil; and that the number of persons interested made the case' fall within that class where public and general interest was involved. Taking that view of it, we sustained the motion to advance and set the cause down for hearing in Division One at its April Term, 1911.

The question is: Was the motion for judgment on the pleadings well ruled?

That question seeks the pleadings, the substance of which follows:

The petition describes the land as a single tract by metes and bounds, courses and distances referring to old landmarks and monuments in St. Louis. Enough appears from the petition to show indirectly that the survey and description of the land relates to the boundaries of an old farm now a part of the city and laid out into streets, alleys, lots and blocks. It takes seven solid printed pages to list the names of the formidable aggregation of churches, schools, companies, trustees and other individual defendants, and the suit is self-evidently brought against the entire home-owning population in that part of the city. The petition charges that plaintiffs own the land in feé simple and that defendants “ claim some title, interest or estate adverse to the estate of the plaintiffs therein.”

The case runs, here, on the theory that the separate answer of Amos R. Taylor (mutatis mutandis) will do as a sample of all the others. Attending to his, it denied the allegations of the petition and then sets up title, ownership and possession in himself to lot 4, block 9, of F'airmount subdivision, a part of the locus in quo. It avers that he claims no title to, interest in, or possession of any other land described in the petition and disclaims any; that he has no claim or interest in common with any defendant or with any other person whatsoever in said land, and claims said lot 4 against all persons. Averring that this action, as to him, is. severable and that his defense is distinct from that of his codefendants, he demands a separate trial as to the issues between plaintiffs and him. He also pleads as defenses the ten-year and the thirty-year Statute of Limitations.

Each of the other answers raised the same issues.

To each of the answers a reply came in the same as to Taylor’s, which latter was to the effect that the land had been subdivided into many lots and blocks, hut that such subdivision was without authority, knowledge or consent of plaintiffs. The reply admits that no one of the defendants claimed an interest in all of the property described, in the petition, admits that Mr. Taylor, makes claim only to the particular property described in his answer, and admits that he makes no claim to the remainder of the'property described in the petition or to any of the described property claimed by any of the other defendants. The reply, after a .general denial, goes on to aver that there was a common source of title, to-wit, Solomon P. Sublette, and that defendant claims record title from one Esther Prances Sublette; that at the death of Solomon the land was a farm of 306 acres, and that Taylor and those under whom he claims, having entered under claim of title from Esther, divided the same into city lots and blocks without the authority or knowledge of plaintiffs and in defiance and disregard of their rights.

With pleadings in this fix, defendants,‘as said, filed a motion for judgment — the grounds thereof being that in each of the answers each defendant sets forth that he owns in severality and not jointly, one with the other, the separate piece or pieces of land described in the separate answers; that no defendant claims any title or interest in the entire tract described in the petition, nor any individual interest therein, nor any interest in any other part of said tract except that portion which in each answer is set out as being the property in severality “of the respective defendant;” that said allegations in each of the answers are admitted to he true by the reply filed in the cause; and that there is a misjoinder , of parties defendant, and a misjoinder of causes of action.

The motion was well ruled, because:

(a). Chaput v. Bock, 224 Mo. 73, was in Banc, was unanimously ruled, is in point and dispositive of this appeal, unless overruled, or distinguished in vital matter. Counsel for plaintiffs argues that the Chaput Case should be distinguished from the one at bar on principle; further, in effect, as near as we can put it, that the Chaput Case was unsoundly decided. The aggregation of counsel for the aggregation of defendants argue contra. Those phases of the matter will be presently considered.

Attending to the Chaput Case, the following propositions were there ruled, viz.:

(1) . The broad and general language of section 650, Bevised Statutes, 1899’ (now Sec. 2535, B. S. 1909. as amended), giving the right to institute an action to quiet title “against any person or persons having or claiming to have any title, estate or interest in such property” and authorizing the court to define and adjudge “by its judgment or decree the title, estate or interest of the parties, severally, in and to such real property,” must be read and construed in connection with the next section (651, now 2536) directing, in effect that the proceedings shall conform in all respects to the provisions of the Code of Civil Procedure. In other words, we must go to such Code for the rules regulating the joinder of parties and causes of action, or to the rules of equity.

(2) . Next (and herein of the concrete case), in a suit instituted under the old section 650' to quiet title to a tract of land, 7800’ by 385 feet, in the city of St. Louis, brought against 498 defendants, in which each defendant filed a separate answer of the same character and raising the same issues as the answers in the present case — that is, each o described a lot and claimed to own it in severalty as against plaintiffs and his codefendants and disclaimed any interest in the lots claimed by his codefendants or any other portion of the original survey, and in which plaintiffs filed a reply denying new matter excepting from the denial the averments in the answers that each of the defendants claimed to he the owner in fee of the separate lot or parcel of land described in his answer, and where at the trial plaintiffs admitted that each defendant claimed in severalty the particular lot occupied by him and made no claim to any other part of the tract, defendants were entitled to judgment upon the pleadings and admissions and that plaintiffs’ suit was well dismissed for multifariousness. •

(3) . Next, that under section 602, Revised Statutes 1899 (now Sec. 1804, R. S. 1909), if the petition showed on its face a misjoinder of causes of action or of parties, it was demurrable. But where such defects did not appear upon the face of the petition (as in the Chaput and the instant case) the objection may he taken by answer.

(4) . Next, that “while this court has been disposed to give a broad construction to section 650', it has not countenanced a -defiance of all the rules of good pleading in its endeavor to uphold the statute. ’ ’

We grounded our rulings in the Chaput Case on the doctrines of Gardner v. Robertson, 208 Mo. 605; Ferguson v. Paschall, 11 Mo. 267; Sutton v. Casseleggi, 77 Mo. 397; Mullen v. Hewitt, 103 Mo. 639 ; Illinois Steel Co. v. Schroeder, 133 Wis. 561; and Hale v. Allinson, 188 U. S. 56; and upon those provisions of our Code, which (under circumstances present in the Chaput Case and in this) would necessitate several hundred trials (Sec. 694, R. S. 1899; now Sec. 1971, R. S. 1909), and would require the judgment upon each separate verdict to await the trial of all the other issues as to each of the other defendants in order that thereby bnt one final judgment may be rendered as required by said section. (See also Sec. 2097.)

It was further pointed out, inter alia, that if a court permitted such joinder of parties and causes of action, then a defendant, unsuccessful in his trial, could not take an appeal until the other 497 cases were tried —a condition characterized as “so unjust that no court should tolerate it. ”

A case under former section 650 is at law or in equity according to circumstances. Its language points that way. Thus, it deals with “legal or equitable” interests, titles and estates'. Its words' are appropriate to both law and equity, it directs a “judgment” or “decree.” .The exposition of that statute was not without great difficulty, and has been guarded and cautious. It must be admitted we are not a little inclined to look upon it as in the nature of an equitable proceeding to be tried to a court without a jury or instructions. [Hudson v. Wright, 204 Mo. l. c. 423; Stone v. Perkins, 217 Mo. l. c. 601-2; Hutchinson v. Patterson, 226 Mo. l. c. 182-3; Chilton v. Metcalf et al., 234 Mo. 27.]

However, the foregoing view of it does not tell the whole story, but is subject to exceptions. Thus, in Lee v. Conran, 213 Mo. 404, Division One of this court held that where title rested on the fact of accretions and there were no equities relied on by either side, the defendant was entitled to a trial by jury and it was error to refuse one.

In Frowein v. Poage, 231 Mo. 82, it was held by Division Two, following the Lee Case, that in a case of accretions where there were no equities pleaded “nor did the evidence tend to show a right in equity on either side, ’ ’ the suit was a plain contest at law and triable by a jury on demand of defendant.

What was the principle underlying both" of those cases? It was this: Our Constitution provides that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” Therefore, all issues triable by a jury piior to tbe adoption of tbe Constitution of 1875 are still so triable. [Berry v. Railroad, 223 Mo. 358.] That principle clearly covers suits under old section 650 in all cases where tbe title binges alone on facts bringing tbe case within either tbe ten or thirty-year Statute of Limitations, and no equities are pleaded (as here); so that tbe evolution of tbe matter, shown by tbe present state of tbe ease-learning, amounts to this: A. court may not babe an equitable loaf in a legal pan, or a legal loaf in an equitable pan. Tbe question of practice under that section remains open to be determined by the pleadings and facts of each individual case.

Under tbe pleadings, this case was a -plain action at law, triable to a jury. Therefore, tbe statutory right of severance and 475 separate jury trials and verdicts, all to precede tbe final judgment as to any one litigant, brings tbe case directly within the delays, chaos, burdens, inconveniences and other mischief struck at in tbe Cbaput Case.

It is allowable to reason from similars to similars. The maxims are: Concerning similars the. judgment is tbe same. Nothing in law is more intolerable than to rule a similar case by a diverse law. It is obvious, therefore, as heretofore said, that tbe Cbaput case must control tbe disposition of tbe instant case unless its doctrine is to be exploded or tbe case itself is distinguishable.

(b). While we announce satisfaction with tbe Cbaput case, yet out of respect to counsel for plaintiffs, we may further consider one phase of bis argument. He lays marked stress on tbe rule permitting a suit in equity for tbe very purpose of avoiding a multiplicity of suits. As we grasp it, tbe force of bis argument is that if bis petition be held multifarious, that bolding shuts tbe door on tbe right of bis clients to go into equity to avoid such multiplicity. But we take tbe true rule to "be tliat a party, appealing to equity to avoid a multiplicity of suits, must still obey tbe rules of good pleading and steer clear of tbe vice of multifariousness. The reason that equity takes cognizance in order to avoid a multiplicity of suits is tbe common sense of it, viz., convenience. Now, convenience within tbe purview of tbe rule, faces three ways — one face turns toward plaintiffs, one toward defendants, and another toward tbe court charged with tbe duty of administering justice, not pell-mell or by chance-medley, but in orderly fashion by rule and good sense. Both parties litigant must be considered. If any preference is given to either, on mere convenience, it should be to defendants, since plaintiffs go into court voluntarily, defendants (speaking in fireside figure) are pulled in by tbe ears.

Speaking further to the question of inconvenience, here there-is no abatement óf tbe number of suits. Tbe joinder merely speaks a word of promise to the ear, to break it straightway or later. Tbe right to a severance and a separate trial, existing, as it does, in favor of each defendant, results in tbe same number of trials there would have been bad 475 suits been instituted, with tbe added inconvenience to defendants of delays arising from tbe right of a multitude of counsel to impress themselves on tbe incidents of that case, as their versatility prompts or tbe law allows. Had plaintiffs instituted 475 suits, each against a separate defendant, tbe Code would not have permitted their consolidation on motion. [Sec. 1963, R. S. 1909.] It is not contended that the right to joinder in this case arises from tbe code provisions relating to parties [Sec. 1732-3-4, E. S. 1909, quod vide~\ ; so that if plaintiffs be permitted sua sponte and by one stroke of their pen in their petition to consolidate them or join tbe defendants contrary to tbe spirit of tbe above sections and contrary to tbe spirit of tbe equitable doctrine which permits the avoidance of a multiplicity of suits when, and only when, there is such community of interest in a common decisive question or subject-matter as permits a court of justice in the course of orderly procedure to settle the whole controversy in one blanket proceeding and one blanket judgment, it would be in the exercise of a power not given by written law and not bottomed on reason.

The Chaput Case, while directly riding off on a question of mnltifarionsness, did not neglect to consider the equitable doctrine of avoiding a multiplicity of suits pressed upon us in this case. To the contrary, that question was involved there, and the authorities cited in that case dealt with that matter as did the case itself.

Counsel for defendants cite us to additional authorities strongly fortifying the Chaput Case, viz., Buchanan County v. Adkins, 175 Fed. 692; Slossen v. McNulty et al., 125 Ala. 124; Tompkins v. Craig, 93 Fed. 885; Lehigh Valley Railroad v. McFarlan, 30 N. J. Eq. 135 ; Webb v. Parks, 110 Ga. 639; Portwood v. Huntress, 113 Ga. l. c. 819; Scott v. McFarland, 70 Fed. 280; O’Brien v. Fitzgerald, 39 N. Y. Supp. 1. c. 709; 1 Pomeroy’s Equity (3 Ed.), sec. 251-½. The guiding principle announced in those eases and authorities is that there must be such common relation, common interest or common question involved that one proceeding’ in equity may really avail to prevent a multiplicity of suits and permit a general bill of peace. Where that principle does not obtain there is no real avoidance of a multiplicity of suits and, the reason of the rule failing, the rule cannot be invoked.

In the case at bar a multiplicity of suits is avoided only in name and at the start not in reality and at the end. Here each defendant stands on his own title under the statutes of limitations. There is no common interest, or common relationship, or common question anent the subject-matter, decisive of the controversy. When- a jury decides for or against one defendant, the title of-another is not affected a whit, but remains quite open, depending on the facts of his individual case— that is, each tub stands on its own bottom; and we can see no reason why these plaintiffs should be allowed to tie a whole population into a composite and blanket lawsuit, when no sensible benefit arises from it, except an avoidance to plaintiffs of the manual labor, of bringing a separate suit for each tract against the claimant of that tract, and the further relief to them of being eased of the burden of the preliminary costs of instituting so many actions.

The cases cited by counsel for plaintiffs from our own Reports (of which Tucker v. Tucker, 29 Mo. 350', is an example) when carefully analyzed and discriminatingly applied to the concrete facts in judgment do not run counter to Chaput v. Bock.

(c). But, it is argued, the instant case differs in material facts from the Chaput Case and, therefore, should not be ruled by it. We see no material difference in vital features.

(1) . True the reply filed in the instant case differs from that filed in the Chaput Case in that it set up a common source of title, viz., Solomon P. Sublette, while in the Chaput Case there was no common source of title. But that fact does not differentiate one case from the other on principle. A common source of title agreed to or shown to exist merely marks that link in the chain of title at which the trial of title between adverse claimants may begin, and if on the motion for judgment on the pleadings it be assumed there was a common source of title, viz., Solomon Sublette, yet the issues raised by the pleadings relating to the Statute of Limitations remain precisely the same in both cases. The issues entitle' defendants to a severance and make necessary 475 trials, thereby making the reasoning of the Chaput Case conclusive in the case at bar, unless something else distinguishes the case.

(2) . Counsel argues there is something else, and that something else is said to be that defendants are estopped from insisting- in this case that there is no common question decisive of the whole controversy and which brings the case within the equity rule of avoiding multiplicity of suits. As herebefore pointed out, after judgment below and an appeal taken an,d pending here, 150 of the defendants united in a motion to advance, and in that motion not only stated the grounds heretofore referred to, but alleged the further fact that plaintiffs claim through Pinckney W. Sublette and defendants through Esther Frances Sublette; that in the ejectment suit of Peniston v. Schlude, 171 Mo. 132, the sole question of fact at issue was whether Pinckney, survived Frances; and that in the present case' the sole question of fact is whether Pinckney survived Frances. That averment in the motion, it is argued, is conclusive on defendants and shows there is one common question in which all of the plaintiffs and defendants are interested, the decision of which decides the controversy and which brings the case within the rationale of the rule permitting joinder in equity to avoid multiplicity of suits.

But learned counsel by inadvertence argues unsoundly in that behalf. For that:

In the first place, the motion contains other averments as grounds to advance and directly invoking our discretion in the premises. Certainly, we did not advance the case because of the last mentioned allegation. We advanced it on the ground hereinbefore set forth, namely, because a matter of public interest was involved.

Again, the real question is whether the motion for judgment on the pleadings was properly ruled, not whether the motion to advance was properly ruled. The latter motion has served its day and office. Its averments are dead matter so far as the merits on the hearing of this appeal are concerned. The case stands for disposition as if that motion had never been made. Its averments, made after the appeal was taken, cannot be allowed to affect respondents right to an affirmance which right began with the appeal and ran with it to the end in unimpaired vigor.

In the next place, 325 of the defendants did not join in that motion and certainly cannot be precluded by what the other 150 said in their motion.

The motion for judgment on the pleadings raised questions of law, viz., whether on the admissions of the pleadings (made directly or by necessary inference) the petition was multifarious; whether there was a conglomeration of independent lawsuits; or a case involving a bill of peace against many defendants, all of whom had a common interest in the subject-matter of the suit under the equitable rule for avoiding a multiplicity of suits. Those questions, as we said at the outset and say again, were well decided below.

The judgment is affirmed. .

All concur.


author: GRAVES, P. J.

text:
    THE STATE ex rel. WAYNE COUNTY v. WILLIAM WOODS et al., Appellants.
    Division One,
    March 31, 1911.
    1. APPEAL: Motion to Dismiss: No Record Showing Filing. Unless the abstract of the record proper shows that appellant’s motion to dismiss and abate the action was filed, such motion cannot be considered upon appeal, although the motion itself is set out in the bill of exceptions. The record of the circuit court should show the filing of such a motion if in fact it was filed, and that entry of the clerk is a part of the record proper, and on appeal should be abstracted as such.
    2. -: Exceptions to Referee’s Report: Record Showing of Filing. Although the abstract of the record'proper fails to show that the entry made by the circuit clerk at the time the exceptions to the referee’s report were filed has been abstracted, yet if the judgment recites that the cause came in for hearing “upon defendant’s exceptions to the referee’s report as heretofore filed,” and that judgment is set out in the abstract as a part of the record proper, it will be held that the abstract shows ‘the filing of exceptions to the referee’s report.
    3. -:-:-: Timely Filing: Presumption. Where the record proper shows the filing of exceptions to the referee’s report and a consideration of them by the court, it will be presumed that they were either filed within the time limited by the statute, or within such time as was granted by the court.
    4. -: -: No Reference to Exceptions in Motion for New Trial. If the motion for a new trial does not charge the court with error in overruling the exceptions to the referee’s report, such exceptions cannot be considered on appeal. Where there has been a reference, exceptions to the report must be filed, and the cause is heard upon the report and those exceptions, and where those exceptions are overruled the losing party must in his motion for a new trial call the court’s attention to alleged error in overruling the exceptions. An assignment in the motion that “the court erred in approving the report of the referee filed in said cause and in rendering judgment in accordance with the report of said referee” is not sufficient. That assignment could as well have appeared in a motion for a new trial wherein no exceptions to the report had been filed, as in one wherein exceptions to the report had been filed.
    5. -: -: - — : Necessary Steps for Review. To get a ruling from the appellate court upon the rulings of the trial court on exceptions to a referee’s report, it is necessary: first, to preserve an exception to the action of the trial court in overruling or sustaining exceptions to the referee’s report; second, the motion for a new trial must charge said action to be error, and thus call the trial court’s attention to the error; and, third, this motion and the ruling thereon and exceptions thereto must be properly preserved in a proper bill of exceptions.
    6. REFERENCE: Course of Procedure: At Trial and on Appeal. ' In a reference case, the referee is required to make and report his rulings both on the evidence and the law, and the errors which he makes are called to the attention of the trial court by specific exceptions to the report, to be filed within four days'; and the errors of the trial court are called to the attention of the appellate court through his rulings upon those exceptions.

      Appeal from Wayne Circuit Court. — Eon. Joseph J. Williams, Judge.
    Affirmed.

      Thomason & Ciarle, J. F. Green, V. V. Ing and O. L. Munger for appellants.
    (1) The court erred in overruling appellants’ motion to dismiss and abate this action because not authorized by order of the county court of Wayne county. “In each county there shall be a county court which shall be a court of record and shall have jurisdiction to transact all county and such other business as may be prescribed by law.” Constitution, art. 6, sec. 36. Section 3781, R. S. .1909, requires the county court “to order suit to be brought on the bond of any delinquent and require the prosecuting attorney of the county to commence and prosecute the same.” It was admitted on the hearing on the motion to dismiss, that no order was made by the county court directing the prosecuting attorney to commence and prosecute this action, and it follows that if the power to order suit to be brought is in the county court, the prosecuting attorney, on his own initiative, may not involve the county in litigation. The power being lodged with the county court, no other person or tribunal can exercise that power, and the maxim, expressio umius est exolusio alie Hus, applies. State v. Hill, 147 Mo. 63 ; Bank v. Graham, 147 Mo. 250'; State v. Harney, 168 Mo. 212; Henderson v. Keonig, 168 Mo. 370; Ex parte Arnold, 128 Mo. 256; State v. Bengsch, 170 Mo. 115; Cooley, Const. Lim. (6 Ed.) 78, 79, 93, 94. The county court is a court of record and can only speak by its record, and no order of record being shown, there could have been no direction by the court to the prosecuting attorney to commence and prosecute the suit. Dennison v. St. Louis County, 33 Mo. 168; Maupin v. Franklin County, 67 Mo. 329; Mobley v. Nave, 67 Mo. 549; Riley v. Pettis County, 96 Mo. 321; Sanderson v. Pike County, 195 Mo. 604. (2) Tbe final settlement made with defendant Woods by the county court at the close of his term of office can only be impeached for fraud or mistake of fact. No fraud was charged in the pleadings attacking the settlement, and it is conclusive on the county in a collateral proceeding. Scott County v. Leftwich, 145 Mo. 32; State ex rel. v. Ewing, 116 Mo. 136; State, ex rel. v. Shipman, 125 Mo. 436; Kronenberger v. Binz, 56 Mo. 122; Moore v. McCullough, 8 Mo. 401; Kent v. Highleyman, 28 Mo. App. 6-20; Marmon v. Waller, 53 Mo. App. 614; Callaway County v. Henderson, 139 Mo. 520'. Whatever was paid to defendant Woods by the county court by its order dated December 31, 1906, for work done which the court found he was not required by law to do as co’unty clerk and which the court allowed him to retain as a credit, cannot be recovered in this action by the county. That was a mistake of law and not of fact. Hethcock v. Crawford County, 200 Mo. 177; State ex rel. v. Hawkins, 169 Mo. 619; State ex rel. v. Shipmán, 125 Mo. 436; State ex rel. v. Ewing, 116 Mo. 129; Corbin v. Adair County, 171 Mo. 389. Sections 3773 to 3776, R. S. 1909, prescribe the procedure when an officer fails to render true accounts, and the proceedings had under those sections are judgments of the county court. Owen v. Andrew County, 49 Mo. 372; Cole County v. Dallmeyer, 101 Mo. 63. The action on the official bond of Woods is a collateral attack on the judgment and order of the county court. It is not a proceeding instituted for the purpose of annulling, correcting or modifying a judgment and decree, which is the test. Johnson v. Realty Co., 167 Mo. 341; Lovitt v. Russell, 238 Mo. 483 ; 2 Freeman on Judgments (4 Ed.), sec. 336; 1 Black on Judgments (2 Ed.), sec. 252; Yan Fleet on Collateral Attack, sec. 3. The finding of fact by the referee in this ease has no evidence to support it, and it will be treated in the appellate court as the verdict of a jury, and is not conclusive. McGregor v. Construction Co., 188 Mo. 621; Handlan v. McManus, 100 Mo. 124; Vogt v. Butler, 105 Mo. 479; Bissell v. Warde, 129 Mo. 439; State ex rel. v. Purcell, 131 Mo. 312; James v. Insurance Co., 148 Mo. 15; Sandidge v. Hill, 76 Mo. App. 540:

      J. F. Meador, J. II. Raney and Jas. Orchard for respondent.
    (1)- The motion to abate and dismiss plaintiff’s action cannot be considered for the reasons, (a) the abstract of record filed herein by appellants mentions no record showing the filing of such a motion, and (b) the record shows the answers of defendants were on file, pending and not withdrawn at the time appellants say such a motion was filed and overruled. (2) The abstract of record makes no mention of an entry of record showing the filing of defendants’ objections to the report and finding of the referee, and for that reason such exceptions are not properly before this court for consideration. To incorporate them in what is designated the bill of exceptions will, not supply the deficiency in the abstract of record. (3) The court committed no error in overruling defendant’s motion to abate and dismiss plaintiff’s action, if, indeed, such a motion was filed. Appellants are laboring under a misapprehension of the nature of this action. They assert that an order of the county court must first be had, ordering the institution of this suit, before same can be maintained. Were this a suit to collect a balance found by the county court to be due the county on settlement with the clerk, under the provisions of Secs. 10721 and 10723, R. S. 1909; this proposition would be well founded. This, however, is a very different sort of action. Here it is alleged that defendant, Woods, by a system of false and incorrect reports, kept back various items of fees and failed to make any settlement therefor, and seeks to recover those and only those that were omitted from such reports. State ex rel. v. Henderson, 142 Mo. 598; State ex rel. v. Henderson, 139 Mo. 510'; State ex rel. v. Chick, 146 Mo. 645; State ex'rel. v. Gideon, 158 Mo. 329. (4) Whatever settlement Woods had with the county court at the close of his term, or at any time prior thereto, included and had reference to such fees only as were reported collected by him. State ex rel. v. Adams, 172 Mo. 1. (5) This suit is not an attack upon a judgment. It was the duty of Woods under the ' statute to make correct reports of all the fees received by him as clerk, and when he failed he committed a breach of his bond, for which this action will lie. The county court in passing upon the reports of officers in respect to their fee accounts does not act in a judicial capacity, and the quarterly reports which the statute requires officers to make and the county court to examine, have not the binding force of judgments. R. S. 1909, sec. 10721; and authorities, supra. (6) The right of public officers to compensation must be shown by express statutory authority. Sanderson v. Pike County, 195 Mo. 598.
   GRAVES, P. J.

— For four years, William Woods was clerk of the county court of Wayne county. By law, he was entitled to retain from the fees of his. office $1250 per year for his salary, and $900 per year for deputy hire. The present suit is an action upon his bond for fees and moneys collected and not reported in his several settlements with the county court. The delinquency of each year of his term is the subject of a separate count in the petition. The cause was sent to a referee, who in his report made a finding of facts and stated his conclusions of law, and in which he recommended that judgment, for the full penalty of the bond go, but to be satisfied upon the payment of $3108.32, the aggregate amount found to be due from said Woods to Wayne county. Judgment was entered in accordance with the report and recommendation of the referee. Prom this judgment, this appeal was taken and the cause is here for determination. The form of the petition is not attacked and it need not be further mentioned.

By answer, the defendant Woods (1) denies generally the matters pleaded, except that he was clerk of the county court and executed the bond sued upon, and (2) full settlement and acquittance by the county court. In this latter portion of the answer is con-' tained an averment that the county court had directed said Woods to do things which he was not required as clerk to. do, and that these matters entered into the settlement made.

The reply by specific allegations put in issue all matters set up in the answer.

Other defendants answered by way of a general denial.

Defendants also claim to have filed a motion to dismiss and abate the action because the county court had made no order of record directing the prosecuting attorney to institute the proceeding.

This sufficiently outlines the case. Other matters of record and evidence can best be stated and discussed along with the points made.

I. In natural order, the motion to dismiss should be first considered.

Plaintiff urges that the record fails to show the filing of this motion, and for that reason it is not here for consideration. This contention is correct. The abstract of the record proper nowhere shows the filing of such a motion. Under the heading, “Bill of Exceptions ’ ’ we find such a motion, as well as a recital of the action of the court thereon, and defendant’s exceptions to such action of the court. This is insufficient. When such motion was filed, if it was filed, the clerk of the court had to make a record entry of such filing, and this entry should have been abstracted as‘a part of the record proper. We have universally held .that the record proper should show the filing of motions for new trial, motions in arrest of judgment, motions to make more specific, and all similar motions, and if such record, as abstracted, did not show these record facts, such motions were not here for consideration. The motion in question falls within the general class, and the contention of the plaintiff is sustained. [Hill v. Butler County, 195 Mo. 511; Stark v. Zehnder, 204 Mo. 442; Harding v. Bedoll, 202 Mo. 625; Crossland v. Admire, 149 Mo. 650; Lawson v. Mills, 150 Mo. 428; St. Charles ex rel. v. Deemar, 174 Mo. 122.]

II. Plaintiff further contends that the abstract of record fails to show that defendants filed any exceptions to the report of the referee. In one sense this is true, and in another it is not true. Going to the abstract of the record proper we find that the entry made by the clerk at the time the exceptions were filed has not been abstracted. But going further into the abstract of the record proper, we find the entry of the judgment in the case, and in that judgment, we find this recital: “Now on this 14th day of February, 1908, this cause coming on to be heard upon the defendant’s exceptions to the referee’s report as heretofore filed, and the court having seen and heard the same and being fully advised in the premises all and singular doth overrule the same.”

This recital from the record proper shows that exceptions had been filed. It further shows that the exceptions were considered by the court, and after consideration were overruled. It is true that this record entry does not show that the exceptions were filed within the fours days’ limit prescribed by statute (R. S. 1909, sec. 2012), but as we have held that the circuit court may grant further time in which to file such exceptions, and further held that even though such exceptions be filed out of time, it was not error upon the part of the trial court to refuse to strike them from the files, and not error for the trial court to consider them, although out of time (McPike v. McPike, 111 Mo. l. c. 222), we are of opinion, that the record in this case is sufficient to show the filing of the exceptions. But aside from this phase of the situation it should be said that as the record proper shows the filing of the exceptions and the consideration of them by the court, it will be presumed that they were either filed in the time prescribed by the statute, or within such time as may have been given by the court. This upon the theory that courts are presumed to proceed rightfully rather than wrongfully. However, with refers ence to the action of the court upon these exceptions there is a serious question presented, which question we take next.

III. 'When a case has been referred, the hearing before the court is upon the report of the referee, and the exceptions filed thereto. These exceptions must specifically point out the rulings which are challenged. [Smith v. Haley, 41 Mo. App. 611.] If they do not inform the court in what respect the report of the referee was not warranted by the law or the evidence, they will be disregarded. [Wiggins Ferry Co. v. Railroad, 73 Mo. l. c. 419; Singer Mfg. Co. v. Givens, 35 Mo. App. 602; Dallas v. Brown, 60 Mo. App. 493; Cahill v. McCornish, 74 Mo. App. 609.] And if no exception be saved to the ruling of the court upon these written exceptions to the referee’s report they are not here for review. [Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 671, 672.]

In the above case, it is said: “Those exceptions were in. writing as required by section 2154 (R. S. 1889), and partook of the nature of a pleading or motion in the cause.”

The Walker case, supra, refers to State ex rel. v. Burkhartt, 83 Mo. 430. In- the Burkhartt cases exceptions were filed and overruled, and presumably exceptions taken to the action of the court in so overruling such exceptions. But counsel failed to file a motion. for a new trial calling the trial court’s attention to its alleged error in this respect. In discussing that situation of the case, this court said: “The errors complained of are such as must be preserved by bill of exceptions. These are duly preserved in the bill of exceptions, but there is nothing in the bill of exceptions to show that a motion for new trial was filed or overruled by the court, nor is there any such a motion found in the transcript. Before this court can review the alleged errors, the attention of the trial court must be called thereto by a motion for new trial, and that and the ruling thereon must be incorporated in the bill of exceptions. [State v. Marshall, 36 Mo. 400; Long v. Towl, 41 Mo. 398; Collins v. Saunders, 46 Mo. 389; and Rotchford v. Creamer, 65 Mo. 49.] The judgment of the circuit court in each of these cases is affirmed.”

We have gone thus far in outlining the law to the end that we might discuss the serious point in this record. The bill of exceptions in this case preserves the exceptions and the ruling thereon. It shows that the defendants excepted to the ruling upon their exceptions. We also find a motion for new trial properly preserved, and an exception to the action of the court in its ruling thereon. The trouble, however, lies in the motion itself. This motion nowhere charges the court with error in overruling the' exceptions to the report of the referee. It contains some eight grounds, but not one of-them mentions the áction of the court upon defendants’ exceptions to the report of the referee. The nearest to such a question is the second ground, which reads: “Because the court erred in approving the report of the referee filed in said cause and rendering judgment in accordance with the report of said referee.”

■ Nowhere is it charged in the motion that the court erred in overruling defendants’ exceptions to the referee’s report. "What we have quoted from the motion for new trial, could as well have appeared in. a motion for new trial where no exceptions had been filed, as in a case where exceptions had been filed. Tet, if no exceptions had been filed, the motion would be unavailing. The question therefore is, can we consider the exceptions to the referee’s report, where the motion for new trial fails to assign the overruling of such exceptions as error. We think not. When we consider that in referee cases the cause is heard nisi upon the report and the exceptions filed thereto, and further consider that the litigant must not only except to the action of the trial court in overruling his exceptions to the referee’s report, but must further by his motion for new trial, call the court’s attention to the alleged error in overruling such exception, it is clear that there is nothing for review in this case, except the record proper, and this is without error.

In filing their motion for new trial counsel seem to have overlooked the fact that the trial in the court, nisi, was on the report and the exceptions thereto. In reference cases the referee is required to make and report his rulings both on the evidence and the law, and the errors which he makes are called to the attention of the trial court by specific exceptions to be filed within four days. The errors of the trial court are called to the attention of this court through his ruling upon these exceptions. To get a ruling from this court upon the action of the trial court it is necessary, (1) to preserve ah exception to the action of the trial court iu overruling or sustaining exceptions, (2) the motion for new trial must charge such act of overruling the exceptions to be error, and thus call the trial court’s attention to the error, and (3) this motion and the ruling thereon and exceptions to the ruling must be properly preserved in a proper bill of exceptions. The record before us falls short of the rule. There being nothing but the record proper for review, and that being sufficient upon its face, the judgment should be and is affirmed.

All concur, except Valliant, J., absent.