author: BOND, J..

text:
    SUSAN J. TOLER et al. v. WILLIAM C. EDWARDS et al., Appellants.
    Division One,
    March 28, 1913.
    1. TJUIETING TITLE: Estoppel and Laches, But No Affirmative Defense, Pleaded: Action at Law. Where plaintiff’s suit to quiet title is a strictly legal action, defendant’s answer, pleading estoppel and laches' solely as a bar to plaintiff’s action, but neither pleading any affirmative equitable defense nor praying any affirmative relief, does not convert the action into a suit in equity; and the finding of facts, by the court without a jury, will not on appeal be reviewed as are the facts of a suit in equity.
    2.-: Allegation of Ownership: Necessary Proof. In a suit' brought under the statute to quiet and determine the title, where plaintiff alleges in his petition that he is “the owner in fee and claims title” to the land, it is not necessary that he show a legal title in fee or a perfect title; it is sufficient if he show a better title than defendant. The contest is between plaintiff -and defendant, and the one who . establishes title in himself as against the other is entitled to judgment.
    3.-: Common Source. If a common source of title is assumed or pledged or proven by the parties on the trial of the suit to quiet title, then the only question is, which of them has the title of the common ancestor. And where the record title stood in the name of the plaintiffs, and defendants attempt to base their title upon a sheriff’s deed made in pursuance to a judgment against them for taxes, defendants assumed and attempted to prove plaintiffs were the common source of title.
    4. -: Carleton’s Abstracts: Sheriff’s Deed: Presumption of Acknowledgment: Infant. Under the provision of the Act of 1907 concerning Carleton’s Abstracts, it cannot be presumed as against minors that a sheriff’s deed was executed and acknowledged, although the recital in said abstracts specifically says “acknowledgment regular.” Under the provisions of that act, prior to its amendment in 1911, recitals in those Abstracts are not made evidence as against infants.
    5.-: Sheriff’s Deed: Order of Publication: Notice by Initials. Where the record showed the infant plaintiffs by their full given names to be the owners of the property, an order of publication addressed to them by their initials in the tax suit did not give the court jurisdiction over them, and a sheriff’s deed under a' judgment rendered in pursuance thereof conveyed no title.
    6. -: Limitations: Substantial Evidence. Where there was substantial evidence that defendant’s adverse possession of' the land was n*ot continuous for the statutory period, a finding for plaintiffs by the court sitting as a jury on the issue of limitations will not he ’disturbed on appeal.
    7. -: Laches: Eighteen Years Delay. The defense of laches arises whenever the holder of a paramount title with knowledge of his rights neglects to assert it as against an adverse claimant for such a period of time that, its assertion would prejudice tlie other party or put him at a disadvantage in proving his title. Where plaintiff took the deed to the land with her when she went to Texas at the age of ten years; the land was sold for taxes soon thereafter, but the sheriff’s deed is held to have conveyed no title; the grantee entered into possession, made improvements, and he and his grantees have cultivated it, and it has become greatly enhanced in value; plaintiff never paid any taxes, her reason being that she did not wish to pay taxes until she had reduced the land to possession; she corresponded with attorneys about bringing suit, but they declined to do so;, she acquiesced in defendants’ possession and as far as they knew made no claim to it; during the thirty years since the land was sold for taxes the county records, including the sheriff’s deed, have been burned, plaintiff’s suit, brought eighteen years after she reached legal age, is barred by laches. •
    •Appeal from Butler Circuit Court. — Hon. Jesse C. Sheppard, Judge.
    REVERSED AND REMANDED (with directions).

      Ward & Collins for appellants.
    Plaintiffs plead that they are “owners in fee” of the 160 acres of land in controversy; and but for the answer this would be an action at law. But the answer pleads an equitable defense, to-wit, laches and estoppel, and therefore converts this action into a suit in equity. Actions under section 650 are either legal or equitable, depending upon the issues raised by the pleadings. Minor v. Burton, 228 Mo. 563; Nelson v. Jones, 245 Mo. 579; Hayes v. Shaw, 229 Mo. 124; Lee v. Conran, 213 Mo. 404. In cases of equity the Supreme Court will adhere largely to the finding of facts by the trial judge, but is not bound by them. Morley v. Staley, 54 Mo. 419; Hencfricks v. Woo'ds, 79 Mo. 540; Carter v. Dilly* 167 Mo. 564. And this is only when the finding of the trial court is based on conflicting evidence. Sharpe v. McPike, 62 Mo. 300; Springer v. Cleinsorge, 83 Mo. 152; Loring v. Atter-berry, 138 Mo. 262. Plaintiffs restricted their claim to a fee simple title, they tender that sole issue, and plead no equitable estate, etc. Stewart v. Land Co., 200 Mo. 289; Shelton v. Horrell, 232 Mo. 371;. Shelton v. Franklin, 224 Mo. 357; Hayes v. Shall, 229 Mo. 124; Minor v. Burton, 228 Mo. 563. Plaintiffs wholly failed to establish any title in themselves, and most especially failed to establish the legal fee simple title in themselves. No common source of title was assumed, for plaintiffs, instead of assuming a common source of title, undertook to deraign their title from the G-overnment, and when they reached the deed conveying the land to plaintiffs they stopped and nothing was said about common source of title by plaintiffs. Therefore, in the language of Nall v. Conover, 223 Mo. 491, plaintiffs did not rely upon a common source of title. There is no presumption of law that the service against these parties was by publication; there was no proof introduced by plaintiffs to show that service was had by publication; and even the witness Susan J. Summers (Toler) nowhere in her testimony states that she was not served personally, though a witness in the case; but there was a deed, and that deed was based upon a judgment, and the law presumes that all things were regular and that the judgment was' rendered upon proper service and that the judgment was valid and binding. Sec. 3150, E. S. 1899; McCormick v. Fitzmorris, 39 Mo. 244; Adams v. Cowles, 95 Mo. 501; McClannahan v. West, 100 Mo. 309. Plaintiffs are estopped herein by laches. Guffy v. O’Eeilly, 88 Mo. 426; State ex rel. v. West, 68 Mo. 232; Hudson v. Cahoon, 193 Mo. 562; Moreman v. Tolbert, 55 Mo. 392; Loomis v. Eailroad, 165 Mo. 495; Kroenung v. Goehri, 112 Mo. 648; Kline v.- Yogel, 90 Mo. 247.

      James R. Breiuer for respondents.
    (1) While the answer of the defendants set up laches and estoppel yet as no affirmative relief is asked or prayed, this answer does not convert the snit to one in equity. Kostuba v. Miller, 137 Mo. 172; Kerst-ner v. Yorweg, 130 Mo. 196. '(2) The appellants contended below and in their brief contend in this court that they have acquired the title of Susan Summers (now Mrs. Toler) and William A. Summers, hence they are in no position to contend now that as the plaintiff counted on a “fee simple” title, they cannot recover. Dixon v. Hunter, 204 Mo. 390. Appellants contend in their answer that they have the fee simple title and contend that they have the Susan Summers and William Summers title, hence they thereby admit that the title of Susan Summers and William A. Summers is a fee simple title. (3) There is no proof jn the record in this case nor any presumption that the “S. J. Summers and W. A. Summers” mentioned in Entry 14 are the William A. Summers and Susan Summers to whom the land in question was deeded in 1874. State v. Priest, 215 Mo. 1.
    STATEMENT BY THE COURT.
    This suit was brought in the 9th of April, 1906, by Susan J. Toler, formerly Susan J. Summers, and others, to determine the title, estate and interest between plaintiffs and defendants in 160 acres of land.
    Defendant W. C. Edwards disclaimed any interest in the land in controversy, and averred that all his title and interest therein had been conveyed, in February, 1897, to his co-defendant, W. R. Edwards. Defendant Joseph Sanders made no answer. The remaining defendant, W. R. Edwards, answered separately, stating that none of the defendants other than himself had any interest in the land sued for; admitted that he was a claimant of title to said land, and averred that he owned it in fee simple and that plaintiffs had no right, title or interest in and to said land. For a second defense he pleaded the Statute of Limitation of ten years. For a third defense he pleaded the Statute of Limitation of thirty years. For a fourth defense he averred that neither plaintiffs nor those under whom they claimed title had paid any tases on said land since 1874, nor had possession of the same, nor exercised any ownership over said land; that though in full possession of knowledge concerning the claim they now seek to establish, they remained silent until the bringing of this action; that during all these years defendant and those under whom he claims title paid taxes on the land, spent large sums of money in lasting and valuable improvements, cleared and fenced a good portion of the same, thereby materially enhancing its value; that with reasonable care plaintiffs might have known of these acts and doings of defendant, but by their conduct led defendants and others under whom he claims to believe they had no claim to the land. All of which defendant avers constituted laches and estoppel against the claim now made by plaintiffs.
    The case was sent to- Butler county on a change of , venue. At the April term, 1908, the cause was submitted to the court, a jury being waived, and was taken under advisement until the January term, 1909, when the court rendered judgment in favor of Susan J. Toler for an undivided three-sixths interest in and to three-fourths of the above described land, and in favor of plaintiff James R. Brewer for an undivided two-sixtlis interest in and to the same quantity of land, and in favor of plaintiff J. S. Patrick as the owner of an undivided one-sixth interest in and to the same amount of land, and adjudged that defendant had no right, title or interest in and to an undivided three-fourths interest in the land described in the petition.
    As showing the theory upon which the casé was decided, the learned circuit judge made a finding of facts and law, setting out plaintiffs’ chain of title and the chain of title claimed by defendant emanating from a sheriff’s deed after a tax sale of the land while Susan J. and "William A. Summers were the record owners. ■ The court held that deed to be void and that defendant had no paper title to the land nor- any title by the Statutes of Limitation of ten and thirty years, respectively; and that plaintiffs were not estoxjped by the laches pleaded. The court then decreed the title in plaintiffs to three-fourths of the land according to their respective interests- — one-half of that amount to Susan J. Toler and the other half to her attorneys. Other facts will be stated in the opinion.
    Defendant duly perfected his appeal to this court; and assigns for error, that the judgment is contrary to the evidence and the law; that incompetent testimony was admitted; and that the judgment is erroneous on the face of the record..
   OPINION.

BOND, J..

(after stating the facts as above):—I. Preliminary to a review of this case, we will dispose of the contention of the learned counsel for appellant, that this action, though strictly one at law in its inception, was transformed into a suit in equity by the inclusion in the

answer of the defense of laches and estop-pel.

As has been seen, four defenses were interposed in the answer. The record shows that each one of them, including the one resting on laches and estop-pel, concluded in the following terms: and defendant “again prays the court to go hence without day and with his costs.” None of the defenses asked for any affirmative relief whatever.

It has long been settled In this State that a purely legal action, such as ejectment, is not converted into one in equity simply by the interposition of equitable defenses thereto unless there is a prayer for affirmative relief based on those defenses. [Shaffer v. Detie, 191 Mo. l. c. 388; Kostuba v. Miller, 137 Mo. l. c. 172; Kerstner v. Vorweg, 130 Mo. 196.] Both, divisions of this court, after some hesitation, have applied this rule to suits to quiet title. [R. S. 1909, sec. 2535.] In the leading case on that subject, the test was stated to be, “If the issues joined entitle the parties to an ordinary judgment at law, then, under the Constitution and laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor.” [Lee v. Conran, 213 Mo. l. c. 412.] That case was followed, after a thorough discussion of the subject, in a case’ where the point for review arose upon the answer in a suit under the statute to determine title, to which the defendant made the identical pleas made in the case at bar, but concluding his answers with a prayer for full and complete affirmative relief by the investiture of title, and for general relief. [Withers v. Railroad, 226 Mo. l. c. 384.] Speaking as to the state of the pleadings in that case, Division No. Two said, that while it was true that the setting up of equitable defenses without more would not change a legal action into one in equity, yet in that case there was a prayer for affirmative relief, and that this conjoined with such defenses did “convert the case from one at law to a suit in equity,” citing cases. [Withers v. Railroad, supra, l. c. 397.] And added, that this distinction brought the ruling of the court in harmony with the doctrine announced in the leading case of Lee v. Conran, supra. This latter case was also affirmed by this Division in Minor v. Burton, 228 Mo. l. c. 563. And again affirmed in Division No. Two in Frowein v. Poage, 231 Mo. l. c. 90.

We are cited to a recent decision of this court In Banc where a suit was brought to determine title, and it was held that the case was one in equity. The answer in that case “pleaded estoppel in aid of defendant’s title.” This is the only reference to the contents of the answer, and from it the inference may be drawn that the answer contained a prayer for affirmative relief; and, hence, the decision in that case was in harmony with those cited above. (The ruling in that case was over the dissent of Woodson and Graves, JJ.) [Nelson v. Jones, 245 Mo. 579.]

In the case at bar the petition merely stated that they “owned in fee” and “claimed title” to the property described. It presented no matter of distinctive equitable cognizance. The answer pleaded only matters* in bar and preclusion. A jury was waived on the trial. Instructions or declarations of law were requested by the parties and given and refused. The court made a finding of facts and law. Only one of the defenses— estoppel and laches- — presented ,any matter of equitable cognizance. It was interposed solely as a bar to plaintiffs’ suit. If it had been interposed in that form and to that extent only in any other legal action, including ejectment, it could not have converted such action into a suit in equity under the unbroken current of decisions in this State. Nor can it have that effect in the present case without destroying the symmetry of the law. The statutory remedy as it now exists for determining titles provides in explicit language for the bringing of legal as well as equitable actions which shall conform in all respects to the code of civil procedure. [R. S. 1909, secs. 2535 and 2536.] Under this statutory authority plaintiffs brought a strictly legal action. We do not see how the answer to that action can have a greater potency than the -same answer to other legal actions, except by the creation of an arbitrary rule. We think (as the record shows the parties thought on the trial below) that this was a legal action; and being submitted to the court, without a jury, the finding of facts has the force of a verdict of a jury. [Minor v. Burton, 228 Mo. l. c. 564, and cases cited.] We do not concur in appellant’s contention that the case is before ns for review as upon appeal in a suit in equity.

II. The first point in appellant’s brief is directed to the assumed effect of the allegation in the petition, that plaintiffs are “the owners in fee and claim title to the following described real estate,” appellant’s contention being, that this allegation confines the proof of plaintiffs to the establishment of a legal estate in fee; and that failing proof of that exact estate, they must be cast in this suit. This is an erroneous conception of the statute under which this action was brought. The allegations of the petition are in conformity with the langauge of the statute and have been expressly approved as sufficient to obtain the benefits of the statute by this court. [Huff v. Land & Imp. Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. l. c. 659; Ball v. Woolfolk, 175 Mo. 278; Elliott v. Sheppard, 179 Mo. 382.] These allegations describe full rights of absolute ownership and necessarily include any and all lesser titles, interests or estates, for it takes every degree of title to make up the perfect title of an absolute owner of land. It has been again and again ruled by this court, that the object of this statute (as expressly said in it) is to ascertain and define “respective titles” and to adjudge or decree the “several” estates of the parties between themselves. Whichever of the parties has the better title, is entitled to have it quieted against his adversary. It is not essential that either plaintiff or defendant should possess the highest form of ownership in land, such as would warrant a judgment investing him with a fee simple title good against the world. It is sufficient if one of the parties proves title and ownership superior to that of the opposite party. When this is done the owner of the better title has the right to a judgment or decree establishing it as against the opposite party and quieting it from further attack by him. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Gage v. Cantwell, 191 Mo. 698; Craton v. Land & Lumber Co., 189 Mo. 322.] Appellant cites the case of Stewart v. Land Co., 200 Mo. 281. An examination of that case will show that plaintiff while claiming a fee simple title gave no evidence of any title whatever. The defendant stood upon a demurrer to the evidence, and the ruling was that the case should be reversed and remanded with leave to the parties to amend their pleadings if so advised. The only point decided by the court was, that an allegation of absolute ownership on the part of the plaintiff could not he sustained, where there was no evidence of any kind of title. That case neither in the point in judgment nor in its reasoning gives any aid to the contention of appellant. 'We, therefore, rule there is no merit in appellant’s point, that plaintiffs’ petition precluded them from showing any quality of ownership, legal or equitable, in the land in dispute, which (though less than an absolute fee) was superior to that shown by defendant.

III. The learned trial court found that the title to the land in controversy originated in a military land warrant in 1852 issued to one Albion Crow, whose title was devolved by mesne conveyances upon said Susan J. and William A. Summers and was of record in them at the time of its sale for taxes; that defendant’s title ran from the deed under the aforesaid tax sale. The law is well settled as to this proceeding, as well as in ejectment, that if a common source title is assumed by the parties on the trial of the case or pleaded or proven, then the only question is, which of the parties has the title of the common ancestor. [Machine Works v. Bowers, 200 Mo. l. c. 235; Stewart v. Land Co., 200 Mo. l. c. 291; Charles v. White, 214 Mo. l. c. 211; Gage v. Cantwell, 191 Mo. 698; Nall v. Conover, 223 Mo. 477.]

Appellant claims that no common source of title was assumed or pleaded or proven on the trial. We think a common source of title was assumed and attempted to be proven by defendant on the trial. At the time of the tas sale the record title to this property stood in the names of Susan J. and William A. Summers. It was the land described in the deed to them which the sheriff undertook to sell and convey. If the title of the record holders (Susan J. and William A. Summers) was not divested by the sheriff’s deed, then the purchaser under that deed (from whom defendant deraigned title) got nothing and could transmit no title to defendant, and the title remained in Susan J. and William A. Summers had vested in them by conveyances running hack to the military grant from the Government. Hence, it was" indispensable that defendant should prove that the sheriff’s deed transferred the title of the plaintiffs, and defendant attempted to show that fact by the evidence afforded in the recitals of Carleton’s Abstracts. Those entries are to-wit: “Entry 14; Pemiscot county; sheriff’s deed to Virg P. Adams; sheriff’s deed dated March 16, 1880; filed October 10, 1880, Book G, p. 57; consideration $7; acknowledgment regular;” a column of remarks under which are the words “S. J. and W. A. Summers.” The right to use these abstract entries as evidence is given by the Laws of 1907, which was enacted on account of the destruction of the land and court records in Pemiscot county by fire. The probative force of these abstract entries is wholly dependent upon the terms of the session act. Giving the fullest meaning to them, by assuming upon the oral evidence adduced, that the column of remarks was the heading under which was placed the names of the parties whose land was conveyed by the deed, and the result is, that the above entries denote the making of a sheriff’s deed, dated and recorded as above stated, conveying the particular land sued for in this case, as the land of “S. J. and W. A. Summers” to the purchaser at the tax sale for a consideration of seven dollars. At the time of this deed Susan J. Summers was nine or ten years of age. The record strongly indicates that the brother had died and the sister had moved to Texas about that time, where she has lived ever since. There is nothing in the record which affords a legitimate inference as to whether the tax suit was begun by publication or by personal service. The sheriff’s deed referred to in Carleton’s Abstracts is non-existent, and hence we cannot gather anything as to its contents other than is afforded by the recitals, of the abstract. It would be prima facie evidence if it existed of the matters and things contained in it. [R. S. 1909, sec. 11501.] And also prima facie evidence that the persons named therein as defendants in the tax suit were the absolute owners of the land conveyed. [R. S. 1909, sec. 6346.] As it has been destroyed, we are left to what may be gleaned of its contents from the scant recitals of the Abstracts, to the extent these are made evidentiary under the Laws of 1907, p. 271. When this case was tried the act providing for the. use of Carleton’s Abstracts contained a provision not in the amendment of 1911 (Laws 1911, p. 254) but which was then in full force, to-wit: “In all cases in which any abstracts, minutes, copies and extracts, or copies thereof, which are made admissible in evidence under the provisions of this act, shall be required to be used in evidence, all deeds, conveyances, or other instruments appearing thereby to have been executed by any person or corporation, or in which they appear to have joined, shall (except as against any person or corporation in .the actual possession of the lands described therein, at the time of the loss, destruction or injury of the said records of such county, claiming title thereto, and except also, as against infants and persons of unsound mind, at the time of the trial or inquiry), be presumed to have been duly witnessed, executed and acknowledged, unless the contrary appear therein.” [Laws 1907, p. 271.] At the time of this sheriff’s deed Susan J. Summers was an infant of tender years, and her brother, who died when eight years old, if then living was younger. Under the exceptions of the Act of 1907, set out above, the sheriff’s deed as against these minors, cannot he presumed to have been executed and acknowledged. It was clearly void in the absence of proper acknowledgment and execution. [R. S. 1909, sec. 11501.] Since the abstracts carry no presumption of its execution or acknowledgment, and as the deed itself was not produced and the record thereof was destroyed by fire, it is evident that there was no evidence in this case showing that any title was conveyed by the sheriff to defendant’s ancestor; and the trial court was right in its finding that defendant had no paper title to the land.

Learned counsel for appellant cites the concluding part of the Act of 1907, hut that paragraph does not touch the point specifically covered by the one before quoted. It refers to sales under powers of attorney, judgments, decrees or other legal proceedings, whereas the one cited above in express terms is applicable to the sheriff’s deed relied upon as the beginning of appellant’s title. And while it has been stricken out of the act by the act of 1911 (p. 254), it was a part of the act and in full force when this trial took place.

Again, if there had been proof of a valid deed by the sheriff, still if the tax suit was based upon publication, as it must have been if Susan J. Summers had left the State at that time, then the court acquired no jurisdiction whatever of the parties, for the rule i-s ti-iat where a publication is made by using the initials of defendants who are the record holders of property in their Christian name, no jurisdiction is acquired, and the judgment rendered in a tax suit thus begun is void. [Shuck v. Moore, 232 Mo. l. c. 656; White v. Gramley, 236 Mo. l. c. 648; Spore v. Land Co., 186 Mo. 656; Vincent v. Means, 184 Mo. l. c. 344.]

IV. There was conflicting evidence in this case as to the continuity and hostile character of the possession of the land in controversy by the tenants or representatives of those under whom appellant claimed for the ten years prescribed by statute. The trier of the facts could, therefore, properly make a finding on that issue, as he did, that the defense of the Statute of Limitations was not made out. ITe was also at liberty from all the evidence in the case to find, as he did, that the defense of the Statute of Limitation of thirty years was not established. His conclusions on these issues are not subject to review in the state of the record on this appeal.

V. The only question left in this case is, whether or not plaintiffs are estopped from asserting their title to the land by reason of failure to take any steps to assert it or to recover the land for about eighteen years after plaintiff Susan J. Summers, now Susan J. Toler, arrived at her majority. The evidence given by her shows that.she took the-deed to the land with Per when she left Missouri for Texas; that she left the State when about ten years of age; that she never .paid any taxes on the land nor authorized any one to do so on her behalf, her reason being that she did not wish to pay taxes until she reduced the land to possession; that while living in Texas she had some correspondence with attorneys in Pemiscot county (letters and names not given) and that they declined to bring any suits for her to recover this land; that she secured the services of her co-plaintiffs, Brewer and Patrick, under an agreement shown by her quit-claim deed conveying to them one half of the land in controversy, of date August 21, 1905. The evidence is uncontradicted that during all this time the land has been claimed by the persons whose titles defendant acquired; that improvements have been made upon it; that money has been expended in clearing, and a partial enclosure; that the land has been successively tilled and cultivated by the agents of the grantees in the chain of title running back to the sheriff’s deed; and that the 160 acres have greatly advanced in value; that until the institution of this suit, in April, 1906, plaintiff Susan J. Toler made no claim to any right, title or interest in said land; but as far as defendant or his grantors knew, acquiesced in the claim of ownership made by him; that during the thirty years of non-claim by respondents, the public records of that county containing the sheriff’s deed and court proceedings have been burned and witnesses have disappeared. The learned circuit judge does not call attention to any fact or matter, in proof supporting his finding against the facts admitted by plaintiff in her deposition or established by the evidence. The defense of laches is based on the maxim, that he who seeks equity must do equity; it exists independently of the Statute of Limitation and arises whenever the holder of a paramount title with knowledge of his rights neglects to assert it as against an adverse claimant for .such a period of time that its assertion would prejudice the other party or put him at a disadvantage in proving his title. [5 Pomeroy Eq. Jurisprudence (1 Eq. Remedies), secs. 22 et seq.; Shelton v. Horrell, 232 Mo. 374; Cockrill v. Hutchinson, 135 Mo. l. c. 75; Rutter v. Carothers, 223 Mo 640; Stevenson v. Smith, 189 Mo. 447; Bucher v. Hohl, 199 Mo. l. c. 330; Loomis v. Railroad, 165 Mo. l. c. 495; Hudson v. Cahoon, 193 Mo. l. c. 562; Kline v. Vogel, 90 Mo. l. c. 247.] All the elements to constitute this defense were stated in the deposition of the plaintiff, or shown by the nncontradicted evidence of other witnesses. As trier of the fact, neither the circnit judge nor the jury could properly exclude from their view the evidence establishing this defense resting upon the admission under oath of the respondent, and the nncontradicted corroboration thereof by all the facts and circumstances in the case. The finding should have been for appellant on that issue.

Our conclusion is that the court at the close of the testimony should have been given a declaration of law that upon the pleadings and evidence the plaintiffs were not entitled to recover.

The judgment herein is reversed and the cause remanded with directions to dismiss plaintiffs’ suit.

Graves, J., concurs; Woodson. P. J.. and Lamm, J., concur in result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    ED. J. SHUCK, Plaintiff in Error, v. EMMA LAWTON et al.
    Division One,
    March 28, 1913.
    1. JUDGMENT: Motion to Set Aside: No Bill of Exceptions: - Presumption. Where there is no bill of exceptions bringing up the evidence, the allegations of defendants’ sufficient motion to set aside a judgment on the ground that there was no allegation of non-residence in the petition and that no separate affidavit charging non-residence was filed before the order of publication was made, will on appeal be taken proved as laid — the motion having been sustained, and the presumption being that courts of general jurisdiction act by right and not by wrong.

      2. -: -: At Subsequent Term. The power of a circuit court on motion to set aside its judgments is not limited to the term at which they are rendered. Under Sec. 2121, R.. S. 1909, a judgment may be set aside at any subsequent term within three years of its rendition for irregularities patent of record; that is, for irregularities not resting in proof dehors the record. Where plaintiff sued for damages for outlay in, and performance in specie of, a land contract, and there was no service attempted to that term, and the petition said nothing about the non-residence of defendants or any of them and contained no allegation upon which an order of publication could be based, and no affidavit of non-residence was made and filed at any time, a judgment thereafter obtained upon a prof of publication, reciting that the petition alleged that all the defendants “are non-residents of the State of Missouri so that the ordinary process of law cannot be served upon them in this State,” may be set aside at a subsequent term upon motion by the defendants — the irregularity clearly coming within the intendment of the statute.
    Appeal from Shannon Circuit Court. — Hon. W. N. Evans, Judge.
    Writ quashed.

      Ed. J. Shuck pro se.

    (1) The defendants’ remedy in this case was in a form of a petition to review judgment under sections 2101, 2103 and 2104, and they signally failed to meet the requirements of that statute for they do not allege in their petition the existence of the facts set forth in section 2101, and they also fail to allege that the petition is untrue in some material matter, and they fail to state in what particular the petition is untrue on which the judgment is based, they fail to state that they had a meritorious defense to plaintiff’s petition, therefore they utterly fail to bring their case within the requirements of section 2104. Burns v. Burns, 63 Mo. App. 617. (2) The court that tried the former case and rendered the judgment that the defendants seek to set aside had the whole case before him and it was the court’s duty to make a finding that the defendants were duly served, and having so done it cannot be set aside in this collateral proceedings. Kane v. McCown, 55 Mo. 200. (3) In this State there is authority that seems to indicate that a motion to set aside a judgment rendered at a former term of court without imposing conditions is permissible. Branstetter v. Rines, 34 Mo. 318. But the case of Harbor v. Railroad, 32 Mo. 423, and all the cases there cited, are at cross-purposes with the Branstetter case, and it se'ems that many of the States have followed the Branstetter. case, and there are equally as many States that, hold that a motion to set aside a judgment rendered at a prior term cannot be sustained unless the motion states a defense. But there is no division of authority on the filing of a motion to set aside a judgment rendered at a prior term in a case in equity, for in equity it is always necessary to show a meritorious defense. Meyers v. Wilson, 166 Ind. 651; Crocker v. Allen, 34 S. C. 52; Thomas v. West, 59 Wis. 103.

      Eugene H. Angert and L. B. Shuck for defendants in error.
    Where there is any irregularity in the proceedings, a court may on motion at a subsequent term set aside the judgment, or do whatever ’the justice of the case may require, but where the proceedings are regular, however erroneous, the power of the court to interfere ceases with the term. Harbor v. Railroad, 32 Mo. 423; Branstetter v. Rives, 34 Mo. 318; Downing v. Still, 43 Mo. 309; Phillips v. Evans, 64 Mo. 17; Craig v. Smith, 65 Mo. 536; Showles v. Freeman, 81 Mo. 540; State ex rel. v. Tate, 109 Mo. 265; Cross v. G-ould, 131 Mo. App. 585; State ex rel. v. Riley, 219 Mo. 667. The statute, R. S. 1855, art. 13, sec. 26, p. 1290. (same as Sec. 795, R. S. 1899), allows three years, to a party in which to move to set aside a judgment of a court of record for irregularities. Branstetter v. Eives, 34 Mo. 318. On a motion to set aside a judgment for irregularity, no affidavit of the merits is necessary. Branstetter v. Eives, 34 Mo. 318. A judgment may be set aside at any time within three years from the date of its rendition for irregularities patent of record, but not after lapse of term for matters de-hors the record. Phillips v. Evans, 64 Mo. 17; Showles v. Freeman, 81 Mo. 540; State ex rel. v. Eiley, 219 Mo. 667. In Missouri, a motion will lie to set aside a judgment for irregularity in the same court within three years from its rendition. State ex rel. v. Tate, 109 Mo. 265.
   LAMM, J.

To the September term, 1907, of the Shannon Circuit Court, Mr. Shuck sued for damages for outlay in, and performance in specie of, a land contract. There was no service attempted to that term, and the petition says nothing about the non-residence of defendants or any of them and makes no allegation upon which an order of publication could be based. Nor was an affidavit of non-residence made and filed at any time. The next step in the case was proof of publication, reciting, inter alia, that the petition alleged that certain named defendants, to-wit, all of them, “are non-residents of the State of Missouri so that the ordinary process of law cannot be served upon them in this State.” This order was made by the clerk in vacation between the September term, 1907, and March term, 1908. Following at the heels of proof of publication, of that order, at said March term, 1908, judgment went on default against defendants for the relief prayed.

During said judgment term defendants appeared not and no motions were filed on their behalf. Presently on August 10, 1908, in vacation between the March and September terms, 1908, defendants appeared specially by counsel and filed a motion verified by affidavit to set aside the judgment, grounding their said motion on an absence of legal service of process, in this, to-wit, that the record shows no personal service and that the order of publication, purporting to be made by the clerk in vacation, is based on a false narration of fact therein, to-wit, that the petition alleged defendants were non-residents of the State of Missouri, when there was no such averment n,or was any affidavit of non-residence filed at any time.

There was another ground not material here.

Thereupon movents caused a summons (with a certified copy of the motion annexed) to issue to Mr. Shuck, notifying him to appear to the motion on the first day of the September term, 1908. Service was had thereon, but Mr. Shuck saw fit not to appear. At the September term, the motion was continued. At the next March term, 1909, it was reached in due course, taken up, heard and sustained (Mr. Shuck still standing mute and in default). The court found the allegations of the motion true and vacated and annulled its former judgment Thereat, within a year, Mr. Shuck brought error and served notice.

The questions are: Is the motion timely? Was it sufficient? Had the court authority at a subsequent term to set aside the judgment?

We answer each, “yes.” Because:

(a) One proposition advanced by plaintiff in error, to-wit, that the motion does not fill the office and function, of a petition for review is put to one side. This for the very good reason that no one claims the motion was of that character or was filed by virtue of statutory provisions (R. S. 1909, sec. 2101 to 2108, inclusive) relating to such petition.

(b) Plaintiff in error puts his finger on no vice of insufficiency in the motion. It makes a plain and unequivocal charge of irregularity in procedure, with time, nature and circumstance. Absent a bill of exceptions bringing here the testimony admitted on the motion (as here) its allegations must he taken proved as laid — the presumption being that courts of general jurisdiction act by right and not by wrong. Moreover, the record brought up by our writ shows a patent and blazing irregularity on its face, viz., an order of publication issued by a clerk without a particle of statutory right to do so. [R. S. 1909, sec. 1770.] Instead of being insufficient the motion is quite otherwise. Hinc illae lachrymae, to fall into the phrase of Terence.

(c) During the- trial term judicial acts are so far forth in the breast of the court that judgments may (under given circumstances) be set aside on the motion of a party, or, as a debt due to justice, by the court on its own motion. [Ewart v. Peniston, 233 Mo. 695; Aull v. Trust Company, 149 Mo. l. c. 13 et seq.]

The foregoing discretionary power of a court over its judgments during the term by no manner of means measures the full breadth of the statutory authority of a circuit court on motion to set aside a judgment after the term ex debito justitiae. That power, under guarded limitations (set forth in a wealth of judicial exposition construing it) is found (possibly in the common law, but at all events) in a statute venerable with age — a statute whose practical wisdom is vindicated by many cases, and in none more triumphantly than in the case at bar, viz.:

“Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered.” [R. S. 1909, sec. 2121.]

We have construed that statute to mean that for a class of irregularities patent of record (i. e., not resting in proof dehors the record) a judgment may be set aside at any subsequent term within three years of its rendition on motion. [State ex rel. v. Riley, 219 Mo. l. c. 681, and cases cited.]

The student, ambitions and alert to follow the law to its ultimate sources and garner its philosophy and reason from judicial exposition, may consult with profit the Riley case, supra, and Cross v. Gould, 131 Mo. App. 585. The opinion in the latter is an exhaustive treatise on the authority of courts to set aside their judgments after the term at common law as well as by virtue of the statute, and the distinctions between and separate offices of writs of error coram nobis, motions in the nature of such writs, motions based on irregularities patent of record, and those resting in proof dehors the record, with a wealth of cases illustrating the guarded limits surrounding such motions and writs and their true office and function. [Quod vide.]

The law on that subject needs no new exposition. The irregularity we are dealing with in this case clearly comes within the intendment of the quoted statute. If it could not be corrected by the court whose process and jurisdiction were abused, it would be a scandal on the orderly administration of justice.

"We find no fault with the court’s setting aside the judgment. Accordingly the writ of error should be quashed and the' proceeding dismissed. It is so ordered.

All concur.


author: BOND, J.

text:
    LEO RASSIEUR, JR., Administrator of Estate of MARGARET BURROUGHS, v. NICOLA P. ZIMMER, Administrator of Estate of THOMAS J. PAYNE, Plaintiff in Error.
    Division One,
    March 28, 1913.
    1. ADMINISTRATION: Presentation of Demand: Limitations. A demand, otherwise sufficient, - which is lodged, after proper notice to the administrator, with the clerk of the probate court in vacation and filed by him before the statutory period for presenting demands has elapsed, is presented to the court, within the meaning of the statute, from the date of its filing, and is not barred by limitations though such statutory period has run when the next term of the court begins.
    2. -: -: Pleading.' No formal pleadings are required in the" presentation of demands for allowance in the probate court. A statement of facts constituting a cause of action is sufficient if it advise the opposite party of the nature of the claim and be sufficiently specific to bar another action.
    3. -: -: -: Sufficient: In the Form of a Notice. The plaintiff gave timely notice that he would present for allowance against the estate of decedent certain notes, giving therein the dates and amounts and complete copies of them, and also the amount of a judgment rendered by the circuit court of Illinois, setting forth a complete transcript thereof. The notice further specified that these several demands would be presented for allowance at the next term of the probate court. After due service of the notice the original thereof was filed with, and .properly indorsed by, the clerk of the probate court, and at the succeeding term the demands specified in said notice were submitted to the court without objection as to the form, both parties being present. Held, that the paper set forth the constitutive facts of a demand, and described the nature and extent of the indebtedness, and was a statement of facts sufficient to constitute a demand. The only informality was' a failure to put the contents of the paper in the form of a statement of indebtedness against the estate, without the use of the prefatory words of notice to the administrator, and those words were mere surplusage, which did ' not affect the otherwise clear and complete statement'of the nature of the demand.

      Error to St. Louis City Circuit Court. — Eon. Robert M. Foster, Judge.
    AFFIRMED.

      G. F. Ziebold for plaintiff in error.
    (1) No formal pleadings are required iii the prosecution before the probate court of demands against the estates of deceased persons; but the requisites for exhibiting, presenting and proving demands are jurisdictional, in the absence of any of which neither the probate nor successive courts obtain jurisdiction over the cause or person. Britian v. Fender, 116 Mo. App. 96; R. S. 1899, sec. 200. (2) All demands must be “exhibited to the administrator and presented to the court for allowance, as provided by law,” within two years, else they will he forever barred. R. S. 1899, secs. 184, 185, 187, 189, 191, 197 and 198; Price y. McCause, 30 Mo. App. 627; Bank v. Burgin, 73 Mo. App. 108;* Guewe v. Hansen, 85 Mo. App. 136; Ryan v. Boogher, 169 Mo. 673; Ewing v. Taylor, 70 Mo. 394; Wernse v. McPike, 100 Mo. 476; Bank v. Suman, 79 Mo. 527; Stephens v. Bernays, 119 Mo. 143. (3) The demand itself, and not a mere copy of a notice of demand served on -the administrator, must he presented to the court, by filing or otherwise, within the required two years. Bank v. Burgin, 73 Mo. App. 108. (4) Exhibition of a demand is a proceeding separate' from its allowance. Walley v. Gentry, 68 Mo. App. 298:

      Rassieur, Kammerer & Rassieur for defendant in error.
    (1) All the requirements of the statute, with respect to the exhibition of the demand to the administrator and the giving of notice of its presentation to the probate court for allowance, were strictly complied witli, and the probate court was thereupon at once vested with jurisdiction over the demand and the parties. Secs. 194, 203, 204, R. S. 1909; Stephens v. Bernays, 119 Mo. 147; Britian v. Fender, 116 Mo. App. 96; Corson v. Waller, 104 Mo. App. 623. (2) No formal pleadings are required in the prosecution of a demand in the probate court; if the demand is filed in such form as to unmistakably disclose the nature of the transaction which gave rise to it, it is sufficient. Sec. 206, R. S. 1909; Sublett v. Nelson, 38 Mo. 488; Watkins v. Donnelly, 88 Mo. 323; Bronze Co. v. Doty, 99 Mo. App. 195; Christianson v. McDermott, 123 Mo. App. 448. (3) Defendant having appeared and taken part in the trial of the demand on the merits, both in the probate court and in the circuit court, without objecting to the form or sufficiency of the demand, or moving to have it made more definite or certain, thereby waived such objections, and will not be heard now to complain. Barrett v. Baker, 136 Mo. 521; Hammons v. Renfrow, 84 Mo. 345; Avery v. Bank, 221 Mo. 82; Britian v. Fender, 116 Mo. App. 97; Finley v. Dyer, 79 Mo. App. 606. (4) But even if the record in this case had failed to show that claimant’s demand, or a statement thereof, was filed in the probate court, yet, since no exceptions to the omission or to the ruling of the trial court, grounded on the alleged defect, were taken in the circuit court, the objection is not open for review in this court; nor can the objection be raised for the first time on appeal. Beard v. Parks, 44 Mo. 244; Fisher v. Railroad, 46 Mo. 304. (5) Claimant was not required to file with his demand a certified copy of the foreign judgment sued on; the demand founded on this claim was one of debt. Campbell v. Wolf, 33 Mo. 459; Crim v. Walker, 79 Mo. 335; Smith v. Kander, 58 Mo. App. 65. Nor was it necessary for defendant in error to have filed with his demand, the cancelled note which bis intestate bad paid as surety for Thomas J. Payne, deceased; the claim was not founded on the note, but was one for reimbursement, upon the implied promise of the principal to repay the money. Burton v. Rutherford, 49 Mo. 258; Blake v. Downey, 51 Mo. 437. In any event, plaintiff in error cannot now complain of the omission to file these papers, since he waived such alleged error by going to trial without objection. Burdsal v. Davies, 58 Mo. 138; Peake v. Bell, 65 Mo. 224. (6) While the question of limitation raised in the brief of plaintiff in error is not presented by the record in this case, still, it has been expressly decided by this court that the requirement of Sec. 195, R. S. 1909, that a demand must be presented to the probate court for allowance within the statutory period, is fully satisfied if a demand is in fact filed with the clerk of the court within that time. Keys v. Keys, 217 Mo. 65.
    STATEMENT BY THE COURT.
    On the 14th of April, 1905, letters of administration upon the estate of Thomas J. Payne, deceased, were granted by the St. Louis Probate Court to Nicola P. Zimmer. On the 5th of April, 1907, the administrator of the estate of Margaret Burroughs (formerly Margaret Payne) gave notice that he would present for allowance against the estate of said Payne certain notes, giving the dates and amounts thereof, respectively, and setting forth full and complete copies of the same, and for the amount of a judgment rendered by the circuit court of Monroe county, Illinois, at its March term, 1905; setting forth a full and complete transcript thereof, and also for a demand setting forth the amount thereof arising out of the payment by Margaret Burroughs (formerly Margaret Payne) of a debt of said Thomas J. Payne, deceased, for which, it was stated, the said Margaret Burroughs and another were sureties; setting forth a complete copy of the note of the intestate and the signatures of the sureties. The notice further specified that these several demands would be presented for allowance at the nest term of the probate court, to-wit, June term, 1907. After due service of the aforesaid notice of demands, the original thereof was filed on April 8, 1907, with, and properly indorsed by, the clerk of the probate court of St. Louis. At the succeeding term of said probate court, to-wit, June, 1907, the parties appeared by their respective attorneys, and the demands' specified in said notice of demand were submitted to the probate court; and, after a hearing, were allowed in the amounts claimed. The administrator thereupon appealed to the circuit court, where the parties again appeared; and upon a trial before the judge, a jury being waived, the judgment of the probate court was affirmed, and judgment rendered for $8201.63.
    No bill of exceptions was taken or filed in the circuit court, and the motions for new trial and in arrest filed by Nicola P. Zimmer, administrator, were stricken from the docket, because not filed within the statutory time.
    The defendant administrator brings the case here by writ of error, submitting for review only the record proper.
   OPINION.

BOND, J.

(after stating the facts as above).—I. Plaintiff in error submits two questions to this court: (1) that the copy of the “notice of demand” filed on April 8, 1907, as and for the demand of defendant in error, is not a statement of facts sufficient to constitute a demand against the estate of which plaintiff' in error is administrator; (2) that the filing of this paper with the clerk of the probate court in vacation and a few days before the lapse of two years from tbe grant of letters of administration, not being followed by a presentation for allowance until tbe next term of tbe probate court when tbe statute of two years bad run, is thereby barred.

If tbe copy of demand filed as tbe basis of tbe claim against tbe estate in appellant’s band contains tbe elements of a cause of action for tbe sums therein mentioned and may be treated as a formal demand, then the second point relied upon by ajjpellant must be ruled adversely, for this court has recently held that a demand otherwise sufficient which is lodged after proper notice to tbe administrator with the clerk of the probate court and filed by him before tbe statutory two years have elapsed, is presented to tbe court, in tbe sense of the statute, from tbe date of its filing. [R. S. 1909, sec. 195; Keys v. Keys, 217 Mo. l. c. 65.] As tbe notice of demand was thus deposited with tbe clerk of tbe probate court and filed by him a few days before tbe expiration of tbe statutory limit for the presentment of claims, it falls within tbe purview of that ruling.

Tbe only question left is, whether tbe statements of this notice of demand are sufficient to constitute a cause of action and a valid demand against tbe estate undergoing administration. The rule is well settled that no formal pleadings are required in the presentation of demands for allowance in tbe probate court on an appeal to tbe circuit court. [R. S. 1909, sec. 206; Watkins v. Donnelly, 88 Mo. 322; Sublett v. Nelson, 38 Mo. l. c. 488; Britian v. Fender, 116 Mo. App. l. c. 96; Christianson v. McDermott Estate, 123 Mo. App. l. c. 455; Monumental Bronze Co. v. Doty, 99 Mo. App. l. c. 198.]

Tbe paper filed in this case sets forth the constitutive facts of a demand, for it described tbe exact nature -and extent of the indebtedness and contained a full copy of the notes and tbe judgment evidencing it. It 'stated further that this indebtedness would be presented to the court for' allowance at its next term. The only informality was the omission to put the contents of this paper in the form of a statement of indebtedness against the estate, without the use of the prefatory words of notice to the administrator. These words were mere surplusage which did not affect the otherwise clear and complete statement of the nature of the demand or causes of action arising upon the notes and demands copied into “the notice of demand” served on the administrator and filed as and for a statement of the demand and indorsed by the clerk of the probate court and upon which the parties went to trial, without objection to its formal sufficiency — both in the probate and circuit courts.

In courts where no formal pleadings are required, such as probate and justice’s courts, a statement of facts constituting a cause of action is sufficient, if it advise the opposite party of the nature of the claim and be sufficiently specific to bar another action. [Iba v. Railroad, 45 Mo. 469.]

The notice of demand filed with the clerk of the probate court in this case met this test. It, therefore, did not show on its face a “total failure to state any cause of action.” Not being subject to that objection, no other can be urged against it on this appeal, which brings up only the record proper.

Our conclusion is, that the pleadings supported the judgment of the circuit court; and it is affirmed.

TVoodson, P. JLamm and Graves, JJ., concur.


text:
    ANNA M. LORENZEN v. UNITED RAILWAYS COMPANY, Appellant.
    Division One,
    March 28, 1913.
    1. NEW TRIAL: Discretion of Trial Court. Although the discretion of a trial court in granting a new trial is reviewable on appeal, yet that discretion will not be interfered with on appeal unless manifestly. abused below.
    2. NEGLIGENCE: Speed of Car: Expert. Where a teamster, driving a loaded coal wagon, turned it across a street car track at an acute angle with the rails and had got it one-half over the track when it was struck about the middle by an oncoming street car propelled by electricity, and he was killed, and his wife sues for damages, alleging excessive speed in the ear, another teamster who had been such for many years on the streets of the city, was familiar with the running of street cars on defendant’s tracks and had watched their rate of speed as they passed him while hauling, and who stood hard by the accident and saw everything that happened, is qualified to give an estimate of the rate of speed at which the car was running.
    3. -: — : -: Opinion Not Formed at Moment of Accident. The testimony of an expert qualified to give an opinion of the rate of speed at which the street car was running cannot be' excluded on the ground that he formed no opinion, judgment or estimate instantaneously with the accident.
    4. -: -: -: Metaphysical Distinctions. To determine the admissibility of evidence by subtle distinctions and refinements, lurking in the convenient shade of psychology and metaphysics, is an experiment of questiqnable value in the everyday administration of the laws of a practical people.
    5. -: —•-:-: Opinion on Speed Like Other Expert Evidence. Opinion evidence on speed of a street car is precisely of the same quality as opinion evidence on time, quantity, number, dimensions, height, distance and the like, and is admissible for the same reason, namely, because, from the nature of the subject under investigation, no better evidence can be obtained or the facts cannot otherwise be presented to the court.
    6.-:-: -: -: Gathered from Observation. Opinion evidence gathers efficacy and wisdom by reference to the phenomena of everyday experience and observation. The sources of judgment on the admissibility of such evidence are, therefore, to be looked for in the homely illustrations of everyday life. The facts forming the basis of an opinion may have been long observed before the opinion is formed.
    7. -:-:-: No Formal Tender: New Trial. The fact that plaintiff made no formal tender of the testimony of the witness after the trial court ruled his opinion of the speed of the car was incompetent, is not a sufficient ground for com victing the trial court of an abuse of its wide and wise discretion in granting to plaintiff a new trial.
    8.-: -:-: -: Excluded on Theory Tender was Made. Where the testimony of the witness as to the speed of the car was excluded as incompetent, and his examination proceeded on the theory on all sides that it would show the car was running at a speed in violation of the ordinance, it is too late on appeal to insist the record does not show the excluded testimony was material.
    Appeal from St. Louis City Circuit Court. — Ron. William M. Kinsey, Judge.
    Affirmed.

      Boyle & Priest and T. E. Francis for appellant,
    The trial court erred in granting plaintiff a new trial on the ground error was committed in rejecting evidence offered by plaintiff, because: (1) Witness O’Loughlin was not qualified to give an opinion with respect to the'Speed of the car. (a) Because he admitted on his voir clire examination that his estimate of the speed of the car would be a mere guess and his testimony as a whole conclusively shows that his estimate would be nothing else. McCreery v. Railroad, 221 Mo. 27. (2) Because he testified that he formed no opinion as to the rate of speed of the car and paid no attention to its speed at the time of the collision, and that the first time he formed an opinion concerning that matter was when he was at the office of counsel for plaintiff and being interrogated about the accident, a week or, so after it occurred. Mathiesen v. Railroad, 97 N. W. 243. (2) Even though the trial court were correct in ruling that this witness should have been permitted to testify, it nevertheless erred in sustaining the motion for a new trial on that ground, inasmuch as no offer of proof was made by plaintiff, and hence there was no showing that the testimony, if admitted, would have been relevant or competent and that its exclusion was prejudicial; Jackson v. Hardin, 83 Mo. 187; Berthold v. O’Hara, 121 Mo. 98; Hickman v. Green, 123 Mo. 179; Ruschenberg v..Railroad, 161 Mo. 81; State v, Arnold, 206 Mo. 596; State v. Shapiro, 216 Mo. 371.

      Edward C. Kehr for respondent.
    (1) A trial court must be allowed a wide discretion in the matter of sustaining a motion for new trial and unless it should appear that it had made a mistake in the construction of the law or that its discretion in sustaining the motion had been abused its action in that regard will not be reversed. Roden v. Transit Co., 207 Mo. 392; Seegar v. Silver Co., 193 Mo. 407; Stetzler v. Railroad, 210 Mo. 711; Richter v. Railroad, 145 Mo. App. 1. As to the granting the first new trial, if the action of the court can be upheld upon any ground, the judgment awarding a new trial will be affirmed. Peper v. Peper, 241 Mo. 264; Sliver v. Owen, 241 Mo. 325. (2) One in attempting to cross a railroad track will be presumed to have been in the exercise of proper care. Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 100; McKenzie v. Railroad, 216 Mo. 21. (3) The duty of a vigilant watch for travelers about to cross the tracks rests upon the motorman of a street ear and he is held to have seen what he might have seen. Ellis v. Railroad, 234 Mo. 657. (4) One who has observed the running of street cars in the city and saw the speed of the car which struck the traveler is qualified to put an estimate upon its speed. Ellis v. Railroad, 234 Mo. 657; Stotler v. Railroad, 200 Mo. 123.
   LAMM, J.

Plaintiff, -widow of Niels A. Lorenzen timely sned in the circuit court of St. Louis for statutory damages for Ms wrongful death at the hands of defendant. Verdict for defendant. New trial ordered and granted on plaintiff’s motion. Defendant appeals from that order. Such strokes earmark the case.

The specifications of negligence are: . (1) a violation of the “Vigilant Watch Ordinance,” (2) the violation of an ordinance limiting the maximum speed of street cars in St. Louis at the place in hand to ten miles per hour- — both, it is alleged, having causal connection with Lorenzen’s death and both introduced in evidence. The Vigilant Watch Ordinance has been here often. It relates to the duty of employees in charge of a going street car in St. Louis to keep a vigilant watch for those approaching their tracks and to use diligence in stopping the car on the first appearance of danger to such persons. [White v. Railroad, 202 Mo. 1. c. 549.] Its terms are not material to any issue here; for the court instructed on that ordinance and the jury found for defendant on that issue. Moreover, plaintiff does not now contend the order granting a new trial can be sustained because of error in the way that issue was put to the jury. So that if we held, as we would be bounden to do, that the ratio decidendi on the motion was immaterial, if other good ground existed, it would not mend matters a whit.

The court granted‘a new trial for error in ruling out testimony on negligent speed. By that ruling plaintiff was left without proof of the rate of speed of the car killing her husband and her case breaking-down on that issue, it did not get to the jury. It is obvious, therefore, that if the court erred in excluding testimony on speed that error materially affected the merits, and, when later the trial court corrected that error by awarding a new trial, it did excellent justice. ' Contra, if the court did not err in excluding such testimony, then it erred in granting a new trial because of such exclusion, the verdict for defendant should he reinstated and final judgment thereon follow as a sequence.

The shoe pinching at that precise point and nowhere else (under the briefs on both sides), the blunt and single question on this appeal is: Was there error in excluding testimony of eye witnesses on the speed of the car killing Niels A. Lorenzen? That question will he put in a form narrowing it very much presently when the actual ruling below is reached.

A word more on the record, before coming to the turning question:

Lorenzen was a teamster plying his calling at the time by driving a loaded coal wagon south on Broadway in St. Louis at dusk on November 12, 1907. South of (and approaching) him was one of defendant’s street cars propelled by electricity, in charge of defendant’s employees, running on defendant’s track and about defendant’s business of carrying passengers for hire. We take it the point of the accident was well lighted by street lamps, that Lorenzen could see the street car (and that those manning it could see him) for a block away — there being no turn in the street or obstructions. Defendant had two tracks on Broadway and Lorenzen was driving outside of both. O’Fal-lon intersects Broadway. At that intersection Loren-zen turned to cross defendant’s- tracks, on a line making an acute angle with the rails, to go down 0 ’Fallon. He had got so far that his wagon was one-half over the track' the car was on when it was struck about the middle by the oncoming car and he was thrown off and instantly killed, the car stopping in a few feet. There is testimony that the car was about sixty-five to seventy-five feet away when the team got on the track.

The facts and circumstances indicating that the car’s rate of speed bore a causal connection to his death, plaintiff sought to prove by two eye witnesses, O’Longhlin and Carroll, that the car’s speed exceeded the ordinance limit. The testimony of Carroll we pnt to one side on this appeal. Because, whether it was admissible or not is immaterial in view of the farther fact that if O’Longhlin was admissible we onght not to disturb the order granting a new trial.

I. At the threshold lies this guiding and general proposition to quicken us, namely:

Although the discretion of a trial court in granting a new trial is reviewable on appeal as the statutes read (R. S. 1909, see. 2038), yet that discretion will not be interfered with unless manifestly.abused below. Such discretion has been defined as a “judicial” one—i. e., a soimd discretion. It has also been defined as one to be exercised whenever in the judgment of the trial court an unfair advantage has been obtained at the expense of justice. It is a discretion appellate courts have encouraged trial courts in exercising to prevent a miscarriage of right, one we are reluctant to interfere with unless exercised capriciously, arbitrarily or improvidently, a discretion resting “mainly” and “peculiarly,” it has been said, with the trial judge. [Schmidt v. Railroad, 149 Mo. l. c. 282; Stetzler v. Railroad, 210 Mo. l. c. 711; Rodan v. Transit Co., 207 Mo. l. c. 406; McCarty v. Transit Co., 192 Mo. l. c. 401, and cases cited.]

II. As said, the turning question may be narrowed. This task we now undertake, viz.: The eye witness, O’Loughlin, stood hardby the intersection of O’Fallon and Broadway; he saw the oncoming car sixty-five or seventy-five feet away at the time Lorenzen was driving on the track; he watched the car and saw all there was to see of the collision. lie had been a teamster for many years on the streets of St. Louis; testified like a man of good sense and solid parts; was familiar with the running of street cars on defendant’s tracks on Broadway and other streets and had watched their rate of speed as they passed him while hauling. Indeed (as his testimony indicates) he was obliged to know how to estimate such speed to save himself in hauling on streets where such cars ran. His qualification to give an estimate of the speed, we think, was abundantly shown under the steadily maintained and liberal doctrine of our courts on that head.

The case calls for no new exposition of that doctrine; for in Stotler v. Railroad, 200 Mo. l. c. 123, et seq., the question is considered at length In Banc and unanimously ruled. (Q. v.) The authorities are there reviewed and the writer can add nothing more to what is there said. A later case, Mccreery v. Railroad, 221 Mo. l. c. 27, may be taken as authority for denying probative force to a mere “guess” on the part of a witness, but there is no note of discord in principle between the Stotler and McOreery cases.

O’Loughlin being qualified to give an opinion, why was it excluded? Observe, his testimony was rejected on the ground that he formed no opinion, judgment or estimate instantaneously with the accident. A very few days later, on being inquired of for the first time, he then formed an opinion or estimate of the speed. A long, running, tri-lateral discussion between court and counsel on both sides is brought up, which it would serve no useful purpose to set forth in detail or summary, making it entirely clear that the only reason he was not allowed to give his opinion or estimate was as stated.

The actual question, then, shifts or narrows itself to this:

May a witness, otherwise qualified to give a speed opinion, testify to that opinion when he did not form it instantaneously with the event itself, but after-wards ?

We think the court erred in excluding the testimony on that ground, this because:

(a) To determine the admissibility of evidence by subtle distinctions and refinements, lurking in the convenient shade of psychology and metaphysics, is an experiment of questionable value in the everyday administration of the laws of a practical people. Too much metaphysics is bad in legal exposition. [Stauffer v. Railroad, 243 Mo. l. c. 325.] There is danger there and courts should sound at every step to see they are on solid ground.

(Note: On the theory of the rhyming adage, A little — to-wit, a very little — nonsense now and then, etc., I recall the facetious and rather sly definition of “mind” and “matter” laid at the door of a celebrated metaphysician, viz.: What is mind? No matter. What is matter? Never mind. It serves to somewhat earmark the elusiveness and obscurity inherent in the subject.)

So much, by mere way of warning.

(b) In the next place (and closer home) opinion evidence on speed is precisely of the same quality as opinion evidence on time, quantity, number, dimensions, height, distance or the like (vide, Lawson on Expert and Op. Ev., quoted in the Stotler case, supra, p. 123) and is admitted as evidence for the same reasons, viz., because, from the nature of the subject under investigation, no better evidence can be obtained or the facts cannot be otherwise presented to the tribunal.

(c) Finally (and still closer to the point) opinion evidence gathers efficacy and wisdom by reference to the phenomena of everyday experience and observation. The sources of judgment on the admissibility of such evidence are, therefore, to be looked for in the homely illustrations of everyday life. Let us take some hypothetical cases of that sort by way of illustration:

(1) John is asked to give the height of his favorite tree in his father’s dooryard. Now, he has not seen that tree for many a day. He had never, that he remembered, formed an opinion of its height in his boyhood or since. In fact had never been asked the question before, or thought about its height in feet and inches. Is Ms estimate o.r opinion of the height of the tree of no value?

(2) Apply that same illustration to quantity or number. Mary, the maid, is asked by her mistress, Mrs. Wilkins Micawber, a week after the event, how many eggs and how much butter she borrowed from the neighbors across the way. The number and quantity had not interested Mary before, yet may she not give a fairly correct estimate on reconstructing the facts in her, mind, viz., that she used both in making five cakes by the Micawber family recipe for use at at dinner given by Wilkins Micawber to Heep, Copperfield et al.?

(3) It becomes material to know, subsequent to the event, the distance between A and B. Henry having formed no opinion at the time of the occurrence, may he not on a review in his mind of all the incidents give an estimate of the distance worth while?

Nay, is not an opinion (say, of the speed of a car at the time it killed a man) which is formed after the event in a moment of calmness of more substance than one formed instantaneously in a moment of intense excitement or when the mind was off guard and taken by surprise?

Conceding that impressions may be formed spontaneously (and simultaneously with the event) yet are all impressions formed that way? May not some good ones be the product of meditation, of deduction, of a review of known facts and recalled details ?

We see no good reason why, subject to the supreme test of cross-examination on the sources of his opinion, a witness may not give an opinion on the speed of a car formed a few days after lie saw its movement. Indeed, facts forming the trne basis of an opinion may 'have been observed at the time of the event and yet the conscious opinion itself may not be formed at the time, bnt be the later product of the judgment. To rule otherwise would be an innovation of no substantial value in jurisprudence, as we see it, and would likely be spurious psychology as well.

Accordingly the circuit court committed no error in granting a new trial in this case.

Appellant cites a case from Nebraska (Mathieson v. Railroad, 97 N. W. 243) which, on first blush, seems to run a little counter to the views expressed. But critically analyzed,'in view of the testimony there dealt with, we deem the case not an authority in support of ’the first ruling of the trial court in this case. The reasoning of a court and propositions ruled must be read in the dry light of the facts of the case and the issues on trial. [State ex rel. v. St. Louis, 241 Mo. l. c. 238, et seq.]

III. It is argued by appellant’s counsel (and the record shows) that after the adverse ruling excluding the opinion, plaintiff made no formal tender of the evidence she expected the witness to give. That, in other words; the record d°es n0^ s^low the testimony excluded was material. Let us look to that. If the court had not granted a new .trial and plaintiff was here on appeal without any showing of what the witness would testify, the case would present a phase not before us at this time — a phase more than once ruled. This case is different. It is an appeal from an order granting a new trial and must be judged from- the viewpoint of the wise and wide discretion allowed to a trial judge in granting a new trial where he believes justice has suffered at his hands. The trial judge in this case thought so and we are asked to say he had no right to think so. We cannot very well rule that way.

But, aside from that view, the point is disallowed to appellant because this record does indicate what the testimony of O’Loughlin would he. In his voir dire preliminary to the question finally ruled out, it is shown that his opinion would he the car was running from fifteen to sixteen miles per hour. Not Only does that appear, but something more appears, viz., the whole trend of his examination, together with the ruling of the court and the objections of counsel, proceeded on the theory on all sides that his testimony would show a violation of the speed ordinance. Haying secured the exclusion of the testimony on that theory, it is too late to now insist that the record does nof show the excluded'testimony to he material.

On the whole record, the premises considered, the order granting a new trial should be affirmed and the cause .remanded to be proceeded with on the new trial awarded below. It is so ordered.

All concur.


text:
    LEONA CASTANIE v. UNITED RAILWAYS COMPANY, Appellant.
    Division One,
    March 28, 1913.
    TESTIMONY: Expert: Testifying the Fact to Be Found. Where defendant sharply denied that there was any accident at all, an expert witness should not he asked if he ascribes her present condition to the injury she received, and if he is asked such a question by plaintiff and his answer is yes, the error is reversible. It is proper to ask him if plaintiff’s injuries could be ascribed to the accident detailed in the question, but it is not proper to ask him if the accident caused those injuries.

      Appeal from St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    EeVERSED AND REMANDED.

      Elmer G. 'Adkins and T. E. Francis for appellant; Morton Jourdan and Boyle & Priest of counsel.
    (1) The court erred in allowing Dr. McElwee to testify, over defendant’s objections, that he ascribed the condition of plaintiff’s hip to an injury she had received in being thrown from the street ear, thereby permitting him to invade the province of the jury. Taylor v. Eailroad, 185 Mo. 255; Glasgow v. Eailroad, 191 Mo. 358; Smart v. Kansas City, 208 Mo. 202; State v. Hyde, 234 Mo. 252; Atkinson v. School, 240 Mo. 355. (2) The verdict is grossly excessive, and the court erred in refusing to grant defendant a new trial on account thereof. Wellman v. Eailroad, 219 Mo. 154; Stolze v. Transit Co., 188 Mo. 580; Dean v. Eail-road, 229 Mo. 425; Taylor v. Eailroad, 185 Mo. 239, 257.

      Charles Fensky for respondent; 4-ruthur G. Moseley of counsel.
    Counsel complains that the court erred in allowing Dr. McElwee to testify that he ascribed the condition of plaintiff’s hip to an injury she had received in being thrown from the street car, thereby permitting him to invade the province of the jury. If the court will read the testimony of this physician it will find the doctor did testify that “this crepitation was due, in his opinion, to inflammatory exostosis thrown out from the bottom of the socket in the attempt on the part of nature to repair the injury that the patient had sustained in her fall from the car on the 20th of the previous September,”- but defendant made no objection to this and no motion was made to strike it out, but permitted it to stand, and this is the only place where this physician testified that the injury to the hip was caused by being thrown from the street car. Wood v. Railroad, 181 Mo. 453; Glasgow v. Railroad, 191 Mo. 363.
    STATEMENT BY THE COURT.
    This is an action by the public administrator of . St. Louis as the curator of plaintiff for personal injuries alleged to have been sustained by her on the 20th of September, 1907, while a passenger on defendant’s street railway, which she alleges was stopped in obedience to a signal from her and was then caused to be negligently and suddenly started forward while she was in the act of alighting, thereby throwing her to the pavement and severely injuring her left hip bone, lacerating the tissues around the same, and shocking her spine and nervous system. The defense was (1) a general denial; (2) contributory negligence. On the trial there was evidence tending to prove the allegations contained in plaintiff’s petition. There was conflict in the evidence as to the nature, extent and curability of her injuries; and defendant also introduced testimony in denial of the occurrence of the injury. The jury returned a verdict for $12,000, from which defendant has appealed; assigning for errors, the refusal of the court to sustain its objection to the testimony of two physicians, and that the verdict is grossly excessive.
   OPINION.

BOND, J.

(after stating the facts as above.)

I. In the view we have taken of this case, it is only necessary to refer to the exceptions preserved as to the hypothetical question put to Dr. McElwee. This question, after embodying a suppositional statement of the testimony adduced on behalf of plaintiff in reference to the occurrence of the injury, was permitted to he asked by the court so as to conclude with the following inquiry, to-wit: “Q.. I ask you the question, do you ascribe that present condition to the injury I described to you in the hypothetical question.” The answer of the witness was as follows: “A. That is what I understand by the hypothetical question — that is* the long question you asked me! Q. Yes. A. Yes.” Objections were made and exceptions taken to the question and answer. It will be borne in mind that the defendant denied that plaintiff had been injured or thrown from one of its cars, and sought to sustain that denial by its conductor and motorman, who testified that no such'accident had happened. The issue thus raised by defendant was one which it was entitled to have determined by the jury and not by the expert called on behalf of plaintiff. The authorities on that subject are uniform in this State, and the rule is nowhere stated with more clearness than by Valliant, J., in discussing the propriety of a similar question in the case of Glasgow v. Railroad, 191 Mo. l. c. 365, to-wit: “In the case at bar the question was not, was the fall from the street car described sufficient to have produced the displacement of the ut’erus? but it was, did the fall produce it! An affirmative answer to the question in the one form, though credited as true, would have still left the jury to find from all the evidence in the case whether or not the affliction under which the witness found the plaintiff suffering was caused by a fall from a street car; an affirmative answer to the question in the other form, if credited, would have closed the inquiry.” So in the case at bar, the issue as to whether or not the injury to the plaintiff was caused by a fall from the street car was one which the jury were called to try. It would have been entirely proper for the question under review to have been put in a form which would have permitted an answer by the physician, that the injuries might or could have been produced by such a fall as that described in the hypothetical question. But it should have not been framed (as it was) so as to elicit an answer that the supposed fall did cause the injury, because that was a “fact to be proved,” and which it was the duty of the jury to determine in view of all the evidence bearing on that issue. The answer of the physician undertook to relieve them of that task. The objection to the form of the hypothetical question should have been sustained. The answer of the witness was incompetent and necessarily prejudicial. It left nothing for the jury to find if they believed the statement of the witness as to the cause of the injuries sustained by plaintiff. [Atkinson v. School of Osteopathy, 240 Mo. l. c. 355; Smart v. Kansas City, 208 Mo. l. c. 202; Taylor v. Railroad, 185 Mo. l. c. 256, and cases cited.]

Since this misreception of evidence necessitates the reversal of this cause, it is unnecessary to discuss other errors assigned.

The judgment herein is reversed and the cause remanded.

Woodson, P. Jand Lamm and Graves, JJ., concur.


author: GRAVES, J.

text:
    HENRY C. GEORGE, Administrator of Estate of ANDREW P. GEORGE, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Plaintiff in Error.
    Division One,
    March 28, 1913.
    APPELLATE JURISDICTION: Suit Based on Statute: Constitutionality. Where the vital point in plaintiffs petition for damages for personal injuries is based on the statute, and plaintiff’s right to recover does not raise a construction of the statute that involves its constitutionality, it is defendant’s duty, if it wishes to rely upon the unconstitutionality of the statute, to raise the point in its answer; and if it fails to do that, it is too late to inject a constitutional question into the case by instructions and the motion for a new trial; and if the suit proceeds to a verdict for plaintiff for $3000, the Court of Appeals has jurisdiction of the defendant’s writ of error.
    Appeal from Adair Circuit Court. — Hon. Nat M. Shelton, Judge.
    TRANSFERRED TO KANSAS ClTT COURT OF APPEALS.

      J. G. Trimble and Campbell & Ellison for plaintiff in error.

      G. E. Mibrrell and IB1 ogle & Fogle for defendant in error.
   GRAVES, J.

This cause reaches us by our writ of error to the circuit court of Adair county. Andrew P. George, a brakeman in defendant’s employ was run over and killed by a train of the defendant. At the time he was attempting to couple cars in this train, which was doing some switching near the depot in Kirksville, Missouri. Plis foot was caught in an unblocked frog and in this position he was run over and killed. With the view we have on the question of jurisdiction but few facts need to be stated. Verdict and judgment was in the sum of $3000. Prom the amount it is clear- that we have no jurisdiction. Our jurisdiction is dependent upon an alleged constitutional question. If such question was timely and properly raised, the jurisdiction would he here rather than elsewhere. This calls for a little fuller statement.

Plaintiff’s petition is in two counts. By one the action is squarely planted under our statutes as to blocking the frogs of switches. By the other we have a common law count of an unsafe place in which to work. This latter count was dismissed and the case submitted on the statutory count.

Going to that the plaintiff in error has thus stated its case: “Deceased was a brakeman working for defendant on November 7, 1907, at the time of his death. The petition charged that his death was caused by his foot getting caught in an Unblocked frog ‘in defendant’s yards and where the trains were made up in the city of Kirksville, Missouri,’ and by the train of defendant while he was engaged in an attempt to couple a car'therein, and while such train was being made up, running over, crushing and immediately killing him while his foot was so caught and held in said unblocked frog.

“This suit is based upon sections 3163 and 3164 of the Revised Statutes of Missouri.
. “Defendant in an amended answer pleaded a general denial and the following two defenses: (1) That the frog in controversy was in a track recently laid before the accident to deceased, and was still in process of construction, and defendant had been unable to surface and ballast the track and block the frog. (2) That deceased caused his death by his own carelessness and negligence.
“On plaintiff’s motion, the court struck out these special defenses and during the same term of court the case went on to trial.”

By this it appears that the defendant clearly admits that one count of the petition was based upon our statutes. By this statement from counsel, and it is fortified by the. record, it clearly appears that the answer did not raise a constitutional question. No question is raised in the answer which could not be heard and determined by the Court of Appeals. Such is shown by defendant’s own analysis of its answer. The answer comports with the analysis. Later, it is true that, by instructions and motion for new trial, an attempt, in general terms, is made to inject the question that our-statutes are unconstitutional. It is also seriously urged that the statutes do not apply to the facts of this case, but that can be determined by the Court of Appeals. The question here is, have we jurisdiction?

It is conceded by the plaintiff in error that the vital count of the petition was based upon our statutes. If this be - true, as it is-, then the railway company should have raised the constitutional question at the first opporunity. Such is the case law in Missouri, and it is founded in reason. If a law is plainly relied upon by the plaintiff, as here, and defendant desires to challenge that law upon constitutional grounds, it should be done at the earliest practical moment, and in addition, a finger should be placed upon the provisions of the Constitution violated. This has been so long and well ruled that the mere mention of the ruling should suffice. But we will again cite a few of the cases: Lohmeyer v. Cordage Co., 214 Mo. l. c. 687; Hartzler v. Railroad, 218 Mo. l. c. 564; Dahnke-Walker Milling Co. v. Blake, 242 Mo. 23.

Now in this case it is conceded that the vital count of plaintiff’s petition was based upon our statutes. With-such concession it became the duty of the railway company to raise the question of unconstitutionality in the answer. This was not done. It should be remembered that this is not a case where the construction of the statute gives rise to the unconstitutionality thereof, but a case where the statute is relied upon as the basis of the action, and the defendant fails in his answer to plead that such statute is unconstitutional. Under the facts the constitutional question was not timely raised and the jurisdiction of this appeal is in the Kansas City Court of Appeals.'

The cause is therefore transferred to that court.

All concur.