author: WOODSON, J.

text:
    JOSEPH R. HUBBARD et al., Appellants, v. J. C. GATES.
    Division One,
    May 31, 1910.
    NO EXCEPTIONS: Motion for New Trial. Where the record nowhere shows that any exceptions were taken or saved to the court’s finding of facts or to the overruling of the motion for a new trial, and there is no error in the record proper, the judgment will be affirmed.
    Appeal from Buchanan Circuit Court. — Hon. C. A. Mosman, Judge.
    AEEIKMED.

      Geo. H. English for appellants.
    (1) As to the pojnt that the record does not disclose that appellant excepted) to the court’s action in overruling the motion for a new trial, we entertain the view that an announcement of the trial court and that exception is made to all adverse rulings of the court, is a sufficient answer to this point. But in addition, it will be borne in mind that the respondent is contend-' ing that this is an equity case. In equity cases the court reviews the whole testimony and renders such decree as the court below should have rendered. Exceptions perform no office in making up the record in equity cases. Surely respondent will not be heard to assert that this cause is in equity and at the same time to invoke a rule applicable only to law cases. Furthermore, the taking of the appeal in open court, on the very day and immediately upon the overruling of the motion for a new trial, is a sufficient exception to the court’s ruling. Moody v. Railroad, 115 S. W. 400; Gray v. J ames, 60 S. E. 906.

      L. E. Waters and L. C. Slavens for respondent.
    It nowhere appears from anything filed in • this conrt that any exceptions were taken or saved to. the action of the court in making its findings or in overruling appellants’ motion for a new trial. There is nothing, therefore, before this court for consideration, except the record proper. Reed v. Colp, 213 Mo. 577; State v. Harris, 216 Mo. 393.
   WOODSON, J.

The record in this case nowhere shows that any exceptions were taken or saved by appellant to the action of the trial court in making its findings of fact or in overruling his motion for a new trial.

Upon such a state of the record, we have frequently held that there was nothing before this court for consideration, except the record proper. [Reed v. Colp, 213 Mo. 577; State v. Harris, 216 Mo. 393.]

And finding no error upon the face of the record proper, the judgment should be affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    PETER B. HAMLIN et al. v. MALINDA WALKER et al., Appellants.
    Division One,
    May 31, 1910.
    1. Dismissal of Cause: Cross-Bill. At common law and under the statutes, plaintiff has the right to dismiss the cause of action at any time before the submission of the cause, notwithstanding his petition asserts that appealing defendants claim some title to the property adverse to another defendant, and said appellants have filed an answer alleging that said other defendant’s deed to an undivided half interest in the property was null and void because the grantor therein was incapable of making a deed and because she was unduly influenced by said other defendant to make the deed. That was not a set-off or a counterclaim, and Sec. 4499, R. S. 1899, permitting a defendant to remain in court after a dismissal by plaintiff applies only in case the answer sets up a set-off or counterclaim, and neither that section nor section 639 prohibits plaintiff from withdrawing from the case before submission.
    2. -: -: Partition Suit. The court, in a partition suit, is not compelled to keep in court a plaintiff who has filed a dismissal before the submission of the cause, for the mere purpose of adjusting conflicting claims among the defendants to a portion of the lands. Under section 639 plaintiff has a clear right to withdraw before a submission of the cause; and section 4389 of the Partition Act gives to the court a discretion to settle the adverse claims of defendants during the course of the partition proceeding or to direct the portion claimed by them to he set off and allotted subject to the claim of the parties against each other; and if the court has the discretion to remit the controversy among defendants to another action, it clearly has the discretion to refuse to keep plaintiffs and their cause in court for the mere trial of the controversy between defendants.
    Appeal from. Platte Circuit Court. — Hon. Alonzo H. Bwnes, Judge.
    Affirmed.

      B. R. Martin aud James H. Hull for appellants.
    (1) The court committed error in dismissing the suit and entering judgment for respondents against defendant James Wallis, on the stipulation filed between respondents and James Wallis, after answer filed by appellants. (2) The respondents bring a partition suit saying they desire the court to partition the land in question, according to the respective interests of the parties plaintiff and defendant; make the appellants, together with James Wallis, parties defendant, and state in their petition that the heirs at law of the said Nancy A. Hamlin, deceased, are made parties defendant, because plaintiffs are informed that they claim some right, title or interest in the real estate in question, adverse to the defendant James Wallis, but not adverse to the plaintiffs herein. And then proceed by'an agreement with Wallis to dismiss the cause without a trial and without determining the respective interests of the parties. Under the authorities that cannot he done. When a court of equity once acquires jurisdiction it will not relax_its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice. Savings Inst. v. Collinious, 63 Mo. 290; Stewart v. Calwell, 54 Mo. 536; Snyder v. Arn, 187 Mo. 177; Holloway v. Holloway, 97 Mo. 640. (3) This cross-complaint is merely in effect a counterclaim, and not calculated to defeat the partition, but entitles the party pleading it to some affirmative relief from his codefendant, and the controversy thus raised by the pleadings gives the court jurisdiction to determine it, and a court of equity will not drive the parties out to litigate this matter again merely because the issue arose in a partition suit brought against them. 17 Am. and Eng. Ency. Law (1 Ed.), 739; Snyder v. Arn, 187 Mo. 165. (4) It is the settled practice in this State that adverse and conflicting rights and interests may be contested and settled under the statutory proceedings for the partition of land. Thompson v. Holden, 117 Mo. 118; Snyder v. Arn, 187 Mo. 165; Holloway v. Holloway, 97 Mo. 633; R. S. 1899, sec. 4389; Benoist v. Thomas, 121 Mo. 660'; Gunn v. Thurston, 130 Mo. 339; Budde v. Rebenack, 137 Mo. 179.

      Anderson & Carmack and John W. Coots for respondents.
    (1) The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterwards. R. S. 1899, sec. 639; Ivory v. Delore, 26 Mo>. 505; Lanyon v. Chesney, 209 Mo. 1. (2) The respondents make no claim that the controversy between the defendant Wallis and the other defendants, who are the appellants in this case, might not have been settled in the partition suit, had it been submitted to the court for final hearing, by the parties, and not dismissed by plaintiffs before that stage of the case was reached.
   GRAVES, J.

Action for the partition of eighty acres of land in Platte county. We will give the facts as set out in the pleadings. This land was owned by Robert M. Hamlin in his lifetime. Hamlin died without issue and left as his widow, Nancy A. Hamlin. Upon the death of Hamlin, the wife and widow elected to take one-half of the property absolutely. The plaintiffs were nephews and nieces of the said Hamlin. Afterward Nancy A. Hamlin died, and the defendants appealing to this court are her collateral heirs at law. She deeded her interest in the. land! to the defendant James Wallis, who does not appeal. The foregoing facts are pleaded in the petition, and in addition thereto it is pleaded that the defendants appealing to this court claim some title to the property adverse to defendant Wallis, but not to the plaintiffs, and for the reason of such adverse claim to the interest conveyed to Wallis they were made defendants.

The appealing defendants filed a separate answer, in which they plead the same facts as to the death of Mr. Hamlin and the descent of his property as pleaded by plaintiffs, and then aver their relationship to the deceased, Nancy A. Hamlin. They then aver that the said Nancy A. Hamlin died intestate and seized of an undivided half interest in the land involved in this suit. They then further aver that the alleged deed to Wallis from Mrs. Hamlin was null and void because the grant- or therein was (1) mentally incapable to make a deed, and (2) that she was unduly influenced to make the same by Wallis, who at the time stood in a fiduciary relation to the said grantor, Mrs. Hamlin. They asked that the said deed be cancelled and for naught held, and that they be given and granted their respective interests in the property. This answer was filed on March 18,1907. On March 19,1907, the following stipulation was filed bv tbe plaintiffs and the defendant Wallis:

“It is hereby stipulated and agreed by and between the plaintiffs and the defendant James Wallis, that this cause shall be dismissed at the cost of. the defendant James Wallis.”

Over the objection of the defendants, who have appealed this cause, the trial court dismissed said cause as per the terms of the stipulation and entered judgment against Wallis for costs, as per the stipulation.

After unsuccessful motions for new trial and in arrest of judgment, an appeal was taken from the judgment aforesaid. The sole question therefore is whether or not under the pleadings the court could dismiss the cause upon the stipulation and thus preclude the appealing defendants from trying the issues raised by their answer or cross bill, if it should be denominated a cross-bill.

I. A glance at the statement discloses that there is but a single question for determination in this case. Its determination is dependent upon a close examination of the common law and our statutes. At common law there would be no doubt as to the right of the plaintiff to dismiss his cause. The rule of the common law is thus tersely stated in 6 Ency. Plead, and Prac., p. 847: “At common law, the filing of a plea or answer, in any form of action, merely responsive to the plaintiff’s complaint, does not affect his right to a voluntary termination of the action. Nor at common law did the filing of a counterclaim or plea of set-off have any efficacy in that respect.”

Not only so, but under the common law, as we adopted it in Missouri, the plaintiff had the right to dismiss at any time before verdict.

In 14 Cyc. at page 401, it is said: “In England plaintiff originally had a right to abandon an action at law and become nonsuit at any time before verdict. But tbe rule has been abolished there by a rule of the Supreme Court adopted1 under the Judicature Act, and has been changed by statute in a large number of the United States. So without any special statutory regulations on the subject the courts of many other States have declined to follow the rule. In other States where there has been no statutory change of the rule, plaintiff may still dismiss his action at any time before verdict; at least he can do so unless a set-off or counterclaim is pleaded by defendant, or unless defendant has acquired a right to some affirmative relief.” The change was made in England in the year 1845. [Howard v. Bugbee, 25 Ala. l. c. 550.]

Our statutes, however, have modified the common law rule. Thus by section 639, Revised Statutes 1899, the plaintiff can dismiss or take a nonsuit at any time before final submission to the jury or to the court sitting as a jury. [Lanyon v. Chesney, 209 Mo. l. c. 6 and 7.]

Prior to the enactment of section 4499, Revised Statutes 1899, which first appeared in the revision of 1889, a defendant filing a counterclaim or set-off could not ask judgment on such claim unless the plaintiff pressed his suit. In Lanyon v. Chesney, supra, it is said: “Prior to the revision of 1889, when section 8172, now section 4499, Revised Statutes 1899, was added, it was several times, in effect, ruled by the Supreme Court that when the defendant answered and pleaded a set-off or counterclaim, he could not, if plaintiff failed to appear at the trial, or take a non-suit, take a verdict and judgment against him for the amount of his set-off and counterclaim. [Nordmanser v. Hitchcock, 40 Mo. 178; Fink v. Bruihl, 47 Mo. 173; Martin v. McLean, 49 Mo. 361.] But in order to remedy this seeming injustice to defendants who had and pleaded set-offs and counterclaims in their answers to actions against them, said section 4499 was added, and since that time the dismissal or nonsnit of plaintiffs no longer carries with it the set-off or counterclaim of a defendant, hut such is proceeded with as an independent suit instituted by the defendant. The consequence is that the cases above referred to are no longer the law in eases where defendant files a set-off or counterclaim. [Pullis v. Pullis, 157 Mo. 565.]”

It would thus appear that in this State the plaintiff is not precluded from dismissing his cause and retiring from court at any time before submission, except in cases where a set-off or counterclaim has been filed, and then the right to retire absolutely from the cause is cut off in such cases by express statute. The common law rule has therefore been at least -modified in two particulars (1) the dismissal must be before submission, whilst at common law, it might be after submission but before verdict, and (2) in cases wherein a counterclaim or set-off has been filed, the dismissal of the plaintiff shall not preclude the defendant from going on with his counterclaim or set-off as' against the plaintiff.

This section 4499 reads: ‘‘Whenever a set-off or counterclaim shall be filed in an action, as provided in this chapter, it shall he deemed in law and treated as an independent action begun by the defendant against the plaintiff, except in the cases enumerated in section 4488 of this chapter; and the dismissal or any other discontinuance of the plaintiff’s action, in which such set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue such set-off or counterclaim, but the defendant so filing such set-off or counterclaim may, notwithstanding such discontinuance or dismissal of the plaintiff’s action, prosecute the same against the plaintiff in the same manner and with the same force and effect as if he had originally begun the action on his set-off or counterclaim against the plaintiff; and, in such case, the defendant so prosecuting such set-off or counterclaim shall he subject to all the rules applicable to plaintiffs in civil actions and1 other procedure, and the set-off or counterclaim shall be proceeded with, in all respects, as if the action had originally been begun by the defendant against the plaintiff.”

It will be observed that this section does not preclude the plaintiff from dismissing his cause of action, but it declares that such counterclaim or set-off shall be treated as an independent action by defendant against the plaintiff, and such independent action can be pressed to judgment irrespective of the plaintiff’s dismissal of his cause of action. This section is far from being a restriction upon the plaintiff as to his right to dismiss his case. The only restriction on his right to dismiss, unless it be in the law pertaining to partition proceedings, and this we discuss later, is found in section 639, supra, which read's: ‘ ‘ The plaintiff shall be allowed to dismiss his suit or take a non-suit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward.” As above stated, this section only modifies the ancient common law rule by limiting the right of dismissal to a time prior to the submission and not thereafter.

In the case of Atkinson v. Carter, 101 Mo. App. 485, the St. Louis Court of Appeals in discussing these statutes said:

“In 1880 a new section (8172) was added to the chapter on ‘Set-off’ by which it is provided that notwithstanding plaintiff might take a nonsuit or dismiss his suit before final submission, yet the defendant’s counterclaim or set-off should be proceeded with to final judgment. [Pullis v. Pullis, 157 Mo. l. c. 588.]

“The general rule in respect to a plaintiff’s right to dismiss before final submission is, that where the answer sets up new matter demanding affirmative relief for which the defendant might maintain a separate action against the plaintiff, the defendant, as to such new matter, is deemed a plaintiff and cannot thereafter he deprived of his right to a trial of' his cause hy a voluntary dismissal or nonsuit hy the plaintiff. [6 Ency. Pl. andl Pr., p. 848, and cases cited in the notes.] But this rule has never obtained in this State. On the contrary, the Supreme Court, except in special proceedings, has construed the right of a plaintiff to dismiss or take a nonsuit under section 639, supra, before final submission, to be absolute and unconditional. With this construction before it, the Legislature in 1889 enacted section 8172, supra. This section does not interfere with or in the least abridge a plaintiff’s right to dismiss a suit or take a nonsuit before final submission; but it secures to a defendant who has filed a counterclaim a new right; that is, it retains the counterclaim or set-off in court after the dismissal of plaintiff’s cause of action and authorizes a trial and judgment thereon. It does not modify or qualify section 639, supra, in the least and it is apparent that the Legislature did not intend by section 8172, supra, to abridge plaintiff’s right to dismiss a suit or take a nonsuit as that right had been theretofore defined by the Supreme Court, and, we think, the rule prevails in this State, that in all ordinary actions at law or in equity, the plaintiff has the right before final submission to dismiss his suit or take a nonsuit, irrespective of the fact that matters are pleaded in the answer which would entitle the defendant to affirmative relief and for which he might maintain a separate action against the plaintiff. It follows that the court erred in [not] sustaining plaintiff’s motion to dismiss.”

This language was quoted with approval by this court in the Lanyon case, supra; in the Atkinson case, the plaintiff, after answer, but before trial, had by formal motion asked leave to dismiss his case, which motion the trial court overruled and forced the trial of the case. The Court of Appeals reversed and remanded the cause with directions that the trial court sustain the plaintiff’s motion and dismiss the cause.

We therefore conclude that unless there is something in our law pertaining to partition suits which thwarts plaintiff’s rights, the action'of the court nisi in this case was right. Our partition statutes we take up next.

II. Turning now to article I of chapter 53, being our statutes upon the partition of real estate, how stands the ease? Under this chapter, section 4376 reads: ‘ ‘ Every person having an interest in such premises, whether in possession or otherwise, shall be made a party to such petition.”

Section 4378 reads: “Any person having an interest in such premises, whether the same be present or future, vested or contingent, though not made a party in the petition, may appear and be made a party on application for that purpose, accompanied by an affidavit of such interest.”

Then following there is the section which relates to the situation found in the case at bar. The section is numbered 4389, and reads: “Whenever it shall appear in any proceeding in partition, that there are parties claiming the same portion adversely to each other, the court may either decide upon such adverse claims, or, in its discretion direct the share or shares so in controversy to be set off and allotted, subject to the claims of the parties in controversy against each other. ’ ’

These are the only sections materially bearing upon the question in issue. In the case at bar, under section 639, supra, and the cases construing it, had the plaintiff alleged that the defendants, now appealing, were the owners of the disputed one-half of this eighty acres of land, and had not made the non-appealing defendant a party, there would be no doubt of the plaintiff’s right to discontinue his suit. Or, had plaintiff brought the suit against the non-appealing defendant alone, there would have been no question.. The question then is does section 4389, supra, change the situation? We think not. Under the statute, section 639, supra, the plaintiff is insured the absolute right to dismiss. The rule under such statutes is thus stated in 14 Cyc. at page 402: “In many jurisdictions there are statutes which provide in substance either that plaintiff, if he desires to suffer a nonsuit or dismiss his cause, ‘must’ do so before the cause is finally submitted to the court or jury or before the jury retire, or that he ‘may’ suffer a nonsuit at any time before the final submission of the cause to the court or jury or before the jury retire. Under either class of statutes it is of course competent for plaintiff to dismiss or suffer a nonsuit before a final submission of the cause, or, what amounts to the same thing, before the jury retire. This right being one given by statute is, it is believed, absolute, and one which the court has no right to deny.”

Under section 4499, relating to counterclaims and set-offs, the plaintiff, as we have seen, is not precluded from dismissing his action, but is simply held in court to defend the counterclaim or set-off filed by the defendant.

Section 4389 simply provides that if it appears in the course of a partition proceeding that there are parties claiming the same portion adversely to each other, then the court may either decide such contention, or may direct the disputed share or shares so in controversy to be set off and allotted, subject to the claims of the parties against each other. As to which course the court will pursue is a matter purely within the discretion of the trial court. To illustrate, taking the case at bar as the subject of the illustration, if the plaintiff in this case had pressed his suit, the court could have done either of one or two things as to the conflicting claims of the defendants to the one share of one-half. The court could have heard the controversy between tbe parties and decided it, or in tbe exercise of its discretion it conld have refused to decide such controversy and set-off this one-balf “subject to tbe claims of the parties in controversy against each other.” That there is a clear discretion given the court no doubt can be entertained. So in this case what have the appealing defendants lost? Had the cause been actually tried the court in the exercise of its discretion could have remitted the controversy brought to issue by their answer, to another action between the appealing defendants and the non-appealing defendant. If the court had that right, which we think it did, then the refusal of the court to keep plaintiffs and their cause in the court for the mere trial of this controversy between the defendants, was but the mere exercise of a discretion vested in the court by this statute.

Considering the common law and all of our statutes, we entertain no doubt of the correctness of the action taken by the trial court, and its judgment is accordingly affirmed.

All concur.


text:
    ARTHUR C. BUTTRON et al. v. JOHN C. BRIDELL et al.; CITY OF ST. LOUIS, Appellant.
    Division One,
    May 31, 1910.
    1. NEGLIGENCE: Lime Pit in Street: Attractive to Children Playing About Same. Testimony that children had been seen playing about the lime pit erected in the public street was competent, in the suit against the city for the death of a child who fell into the pit and was scalded to death, to show that the pit and its surroundings were attractive to children.
    2. -: -: -: -: Judicial Notice. But independent of that the court will take judicial notice that a lime pit thirty feet long, in which lime is being slacked, erected in the public street of a large city, is attractive to children. It is a matter of common knowledge, and need not be proven.

      3. -:-:-: -: Instruction. And the court does' not err in submitting to the jury, as one of the issues in the case, the question of whether or not children were accustomed to play near and around the lime pit erected in the public street.
    4. -: -: Dangerous: Admitted by Pleading, Where the answer pleads that the deceased child, who fell into a large lime pit in the public street "and was scalded to death, had been warned to stay away from the pit on account of its dangerous condition and that his parents were guilty of contributory negligence in not having cautioned him of the dangers, defendant necessarily admitted the pit was dangerous, and if was unnecessary to prove it- was.
    5. -: --: -: Matter of Common Knowledge: Proof. Every one knows that a large lime pit, erected in the public street of a great city, for slacking lime, filled with a boiling mass of lime and water, uncovered and unguarded, around and on which it is known children have been and will continue to play, is a dangerous thing to children, and it is unnecessary to prove it; but no error was committed in permitting witnesses to testify it was dangerous.
    6. -: -: Notice to City: Permit to Contractor: Instruction. The granting of a permit to a contractor by the city to erect a large lime pit in the public street, to be used in connection with the construction of buildings on abutting property, brings home to the city knowledge of the use to which the pit is to be applied; and the city is not entitled to an instruction telling the jury that it would not be guilty of negligence in failing to cover or cause to be covered the pit, until after it knew, or by the exercise of ordinary care could have known, that the same had been, on the evening in which the child fell into it, left filled with lime so heated as to be productive of injury to persons coming in contact therewith.
    7. VERDICT: Dividing Damages Among Tortfeasors: Surplusage: Amendment. The suit was for damages against two tortfeasors, and the jury used the form furnished by the court in these words: “We the jury in the above entitled cause find the issues herein joined in favor of the plaintiffs and assess their damages at the sum of $1700;” to which the jury added, “to be paid in equal amounts of $850 by defendants.” The court refused to receive the verdict in the form offered, and handed it to the foreman, saying, “Gentlemen, your verdict is not in proper form; you will use one of the forms given you by the court.” Thereupon, the foreman, in the presence of the court and without a retirement of the jury, erased the words “to be paid in equal amounts of $850 by the defendants,” and the court accepted the verdict as amended. Held, that the words erased were mere surplusage, that it was not in the province of the jury to divide the damages among defendants, and the court did not err in permitting the amendment to be made in the manner it was made.
    Appeal from St. Louis City Circuit Court. — Hon. Robt. M. Foster, Judge.
    Affirmed.

      L. E. Wdither, B. H. Charles and Wm. E. Baird for appellant.
    (1) The evidence must be confined to the issues raised by the pleadings, and it is not competent to prove a given condition or quality at a given time by evidence of incidents occurring prior to that time. Gable v. Kansas City, 148 Mo. 470; Hannibal v. Richards, 35 Mo. App. 15; Caleaterra v. Iovaldi, 123 Mo. App. 347. (2) Opinion evidence is inadmissible upon a subject upon which the jury may judge quite qs well as the witness. Hurst v. Railroad, 163 Mo. 320; Benjamin v. Railroad, 133 Mo. 289; Koenig v. Depot Co., 173 Mo. 721; Brown v. Railroad, 89 Mo. 155. (3) The instructions must submit to the jury only the issues of fact raised by the pleadings and evidence; hence it was error to submit the question whether or not “children were accustomed to play near the lime pit.” ' Glass v. Gelvis, 80 Mo. 297; Ely v. Railroad, 77 Mo. 34; Kingman v. Buggy Co., 150 Mo/ 282; Whitlock v. Appleby, 49' Mo. App. 295. A municipal corporation is liable for failure to keep its streets in reasonably safe condition only upon the ground of negligence, and negligence can be imputed to it only after notice of the defect or dangerous condition, and then only after a reasonably sufficient time has elapsed within which it may remedy the defect. Baustian v. Young, 152 Mo. 317; Gerber v. Kansas City, 105 Mo. App. 191; Fehlbauer v. St. Louis, 178 Mo. 635. The verdict should represent the well-considered judgment of the jury, and any change made therein by the court or any of the jurors which changes the expressed intent of the jury vitiates the verdict, unless the jury consent to such change. Oersteeg v. Paint Co., 106 Mo. App. 257; Hartman v. Railroad, 48 Mo. App'. 619; Henley v. Arbuckle, 13 Mo. 147; Nicholson v. Rombauer, 44 Mo. 590.

      John P, Leahy and Joseph Wheless for respondents.
    (1) The defendant city having issued a permit for the placing of the lime pit obstruction in the street, is liable for its condition without notice. “The principle is well settled that a city, which authorizes excavations in its streets, is not entitled to notice of the dangerous condition in which they have been left, in order to hold it liable for injury to third persons occasioned thereby.” Benjamin v. Railroad, 133 Mo. 285; Straub v. St. Louis, 175 Mo. 421; Lindsay v. Kansas City, 195 Mo. 178; Benjamin v. Railroad, 133 Mo. 285; Haniford v. Kansas City, 103 Mo. 181; Russell v. Columbia, 74 Mo. 4801; Wiggins v. St. Louis, 135 Mo. 558; Stout v. Railroad, 17 Wall. (U. S.) 657; Davenport v. Hannibal, 108 Mo. 477; Stephens v. Macon, 83 Mo. 357; Drake v. Kansas City, 190 Mo. 388. (2) The verdict as first returned by the jury was complete, and the clause in regard to dividing payment between the defendants was surplusage. The court properly directed the jury to return the verdict in proper form. “Before a verdict, whether oral or sealed, is recorded, and the jury have been dismissed from their relation as such to the case, the court has power to require them to reconsider their verdict, not merely to correct a mistake in form or make that plain which was obscure, but .to supply what is wanting, or to alter it in substance, if they so agree.” Abbott’s Civil Trial Brief, 537; Hancock v. Bnckley, 18 Mo. App. 465; Hill v. Bank, 100 Mo. 238; Spring Co. v. Tool Co., 103 Mo. App. 109; Ver Steeg v. Paint Co., 106 Mo. App. 287; Cattell v. Publishing Co, 88 Mo. 359; Gurley v. O’Dwyer, 61 Mo. App. 348; Kreibohm v. Vancey, 154 Mo. 82; Ranney v. Bader, 48 Mo. 541; Hartman v. Railroad, 48 Mo. App. 625; Gaither v. Wilmer, 5 L. R. A. (Md.) 756, note.
   WOODSON, J.

This suit was brought by the plaintiffs to recover of the defendants the sum of $5000 damages for their alleged negligence in maintaining in one of the public streets of the city of St. Louis an illegal obstruction, namely, a lime pit filled with hot lime, into which their son, nine years of age, fell and was scalded to death. A trial resulted in a judgment for the plaintiffs for the sum of $1700, from which the defendants appealed.

The petition was in the usual form, with the following charge of negligence, as appears in the respondents ’ statement of the case:

“Defendants are charged with negligence ‘in failing to provide covering for said pit, and proper and necessary guards around the same;’ and are further charged with negligence, in that a loose board was left lying in such a way that one end rested on the street and the other end projected over the lime pit, ‘and furnished a means of ascending from said street to the top of said pit;’ that these conditions were highly dangerous and were attractive to children lawfully on the said street and playing in the vicinity thereof; that these conditions had existed for such a length of time that the defendant knew or by the exercise of ordinary care could have know of the same; that plaintiffs’ child, nine years of age, while playing in the street was attracted to the lime pit, ascended the loose board and fell into the boiling slacked lime, and was scalded to death. ”

The answer was a general denial, and that deceased had been warned to keep, away from the pit,, and a plea of contributory negligence on the part of the plaintiffs for not cautioning the boy against the1 dangers of the pit.

The facts are few and are practically undisputed. Under a permit duly issued by the city, the defendant Bridell constructed and maintained for twelve days, in one of the public traveled streets of that city, a lime, pit, about thirty feet in length, extending into the* street a few feet beyond the center line thereof. The-, pit was several feet deep, and was used for slacking: lime, which was mixed in a box erected over the pit,, from which the boiling mixture ran into and remained' in the pit. The pit was left uncovered, and no guards-were erected to protect pedestrians on the street from, running against or from falling into it. The pit had been used for slacking purposes for several days prior to the accident.

The plaintiffs’ evidence, in addition, tended t'o1' show that they were husband and wife, and that the deceased was their minor son; that a loose plank was permitted to rest with one end on the street and the other projected upward and over the open lime pit, which furnished an easy means of ascent from the-street to the top of said box; that the place was attractive to children and that plaintiffs’ child and-other children of the neighborhood had been playing-about the pit from the time it was constructed down-to the date of the accident; that a policeman passed down the street by the pit a few hours previous to the • accident, which occurred about four o’clock p. m. on July 12, 1906. In playing about the premises the deceased child walked up the inclined board to the top of" the pit, which turned with him, and he fell into the-boiling mixture, and was scalded to death.

The defendants’ evidence tended to show that the pit was constructed and maintained by Bridell in connection with the construction of certain buildings on abutting property; that there was no board leading from the street to the top of the pit; and that a policeman did not pass by the pit a few hours previous to the accident; that the pit and lime box used in this instance were the usual and customary means employed by plasterers, and that it was impracticable to erect guards around such pits, as any barrier which would keep out trespassers would also- prevent the unloading of sand into the pit.

Such additional facts as may be necessary for a proper understanding of the legal propositions presented will be noticed during the course of the opinion.

The city of St. Louis makes the following assignments of error:

“1. The court erred in permitting witnesses to testify that children had been seen playing around and near the lime pit prior to the accident.

“2. The court erred in permitting witness for plaintiffs to testify that the lime pit was ‘dangerous.’

“3. The court erred in submitting to the jury, in plaintiffs ’ instruction 1, as one of the issues in the case, the question whether or not children were accustomed to play near and around the lime pit.

“4. The court erred in refusing instruction 11 offered by the city.

“5. The court erred in permitting the foreman of the jury to alter the verdict and in accepting the same when so altered, without first polling the jury' or at least securing their assent and without directing the jury to deliberate concerning such alteration.

“6. The court erred in permitting plaintiffs’ counsel in course of his argument to use the photograph for purposes for which it was not in evidence and to refer to and comment upon this point.”

I. The first error assigned by counsel for appellants challenges the correctness of the ruling of the trial court in permitting witnesses to testify that children had been seen playing for several days around and near the lime pit prior to the accident.

That action of the court is assailed for the reason stated, that the petition did not state that children were seen playing about the pit prior to the time of the accident. There was no error in admitting this testimony. It was admitted for the purpose of showing that the pit and the surroundings were as a matter of fact attractive to children, which was one of the charges made in the petition.

But independent of that, the courts will take judicial notice of the fact that such a structure maintained in the public streets of a city will attract children. That is common knowledge; and matters which are generally and commonly known by all need not be proven. This is elementary and needs no authority to support it.

These observations apply equally as well to the third assignment, and dispose of it also adversely to the contention of appellants.

II. It is also insisted by counsel for appellants, that the court erred in permitting witnesses to testify to the fact that this pit was dangerous.

In the consideration of this insistence, it should be remembered that the pit was located in a public street in a great city and filled with a boiling mass of lime and water, uncovered and unguarded, around which it was known that children had been and would continue to play. In fact the answer pleads that the deceased had been warned to stay away from the pit on account of its dangerous condition; and that his parents were guilty of contributory negligence for not having cautioned their child about those dangers. Under this state of the record, it was necessarily admitted that the pit was dangerous, and it was therefore unnecessary to prove that fact. But whether admitted -or not, every one knows such a pit, filled with a seething mass of lime and water, was a dangerous thing to -children, and would therefore require no proof of that .fact. The jury knew that fact as well as the witnesses ■did who testified to it. So, under no view of the matter was the interest of appellants injured by the admission of that testimony.

III. Counsel for appellants asked, and the court -refused, the following instruction, to which action of •the court the appellants duly excepted, to-wit:

“You are further instructed that the city would not in any event be guilty of negligence in failing to •cover, or cause to be covered, the lime pit, until after it knew, or by the exercise of ordinary care could have known, that the same had been on the evening in question left filled with lime so heated as to be productive of injury to persons coming in contact therewith and the same was uncovered.

“And the city would further be entitled in any event, after it knew or by the exercise of ordinary care could have known, of the condition of the lime pit, to a time reasonably sufficient to have enabled it to procure and place coverings upon the same, before you would be justified in finding a verdict against it on the ground that it failed to cover or cause to be covered the lime pit in question. ’ ’

This instruction was properly refused, for the reason that the city granted to Bridell a permit to construct and use the lime pit for the purposes for which it was being used at the time this child fell into it and' lost its life. It is common knowledge that these pits are constructed and maintained for the express purpose in which to .slack lime, and that while going through the process of slacking the lime becomes intensely heated, sufficiently hot to set on fire any ordinary combustible material that may come in contact with it, and when large quantities of water are added the whole mass becomes a boiling mass. The granting of the permit brought home to the city the knowledge for what the pit was to be used, as well as the knowledge of the natural and usual dangers incident to that use, namely, that it would he used for the purpose of slacking lime, which would produce a boiling mass; and that it would be dangerous to children playing around it, and to other pedestrians and travelers upon the street who should happen to come in contact with it. Under the circumstances the city was entitled to no notice.

This question was recently before this court in the ease of Merritt v. Telephone Co., 215 Mo. 299, and the question was there so thoroughly and ably discussed by my associate, Judge Graves, that nothing new remains to be said upon the subject.

The instruction was properly refused.

IY. It is next insisted by counsel for appellants that the court erred in directing the verdict of the jury to be amended and in accepting it in its amended condition.

The following is a fac simile of the verdict as originally returned by the jury, to-wit (Formal parts omitted):

Thereupon the court said': “Gentlemen, your verdict is not in proper form; yon will use one of the forms given yon by the court. ’ ’

Thereupon the papers were handed to the foreman, and he, in open court, the jury not retiring for further deliberation, erased the words “to he paid in equal amounts of $850 by defendants,” and returned the following verdict:

“We, the jury in the above entitled cause, find the issues herein joined in favor of the plaintiffs and assess their damages at the sum of $1700.”

The latter verdict vas by the court accepted, and judgment entered thereon. To the action of the court in all of those matters, the appellants duly excepted.

It is apparent from an inspection of the verdict as originally returned by the jury that they used the blank form furnished by the court and to which they added the following words and figures “to be paid in equal amounts of $850 by defendants.” The form of the verdict furnished to the jury by the court was in proper form, and if it had been signed by the jury it would have been legal and binding; but the addition of the words before quoted to the form furnished by the court was outside of and beyond the province of the jury. The law, and not the jury, determines who are to pay the damages to be assessed in damage suits; and when the jury undertook to impose one-half of the damages upon each of the defendants, it acted outside of and beyond its jurisdiction. If the jury had the authority to assess one-half of the damages against each defendant, then it had by virtue of the same authority the power to assess nine-tenths or any other proportional part thereof against one of them and the remaining part against the other. The jury possesses no such power, and when it attempted to so do by adding to the verdict the words erased, it was acting beyond its authority. Those words had no legal force or effect whatever and were mere surplusage; and the court properly had them stricken out.

This question came before the Court of Appeals in the case of Hancock v. Buckley, 18 Mo. App. l. c. 465, and there Judge Ellison, in speaking for the unanimous court, said: “The verdict was as follows: ‘We, the jury, find for the plaintiff $125.40, dividing entire costs equally between the parties’ . . . The second point must likewise be ruled against the defendant. That part of the verdict dividing the costs between the parties was wholly outside of the issues submitted to them, and was properly treated as surplusage by the court.” On rehearing: “Defendant claims that the verdict of the jury, in the form in which it was returned, was the result of a mistake, and that the jury would not have returned a verdict for the plaintiff at all but for their belief that they had a right, under the law, to so apportion the costs; and, therefore, the judgment entered up by the court is not, in fact, the verdict of the jury. The inquiry naturally arises, how is the court to ascertain the existence of the fact thus alleged to have influenced the minds of the jurors ? No rule of law is better settled than that the proper evidence of what the jury does decide is the verdict returned by them upon oath, and affirmed in open court. On the verdict returned into court in this case, the law, as shown in the opinion herein, required the court, without more, to treat so much of it as undertook to divide the costs between the litigants, as outside of the province of the jury, and, therefore, mere surplusage, to be rejected by the court in entering up judgment.” Abbott’s Civil Trial Brief, 537, says: “Before a verdict, whether oral or sealed, is recorded, and the jury have been dismissed from their relation as such to the case, the court has power to require them to reconsider their verdict, not merely to correct a mistake in form or make that plain which was obscure, but to supply what is wanting, or to alter it in substance, if they so agree. ’ ’

In Champ Spring Co. v. Roth Tool Co., 103 Mo. App. l. c. 109, the court said: “Until the rendition and record of the verdict, the jury remain in control of it with power to alter or withdraw it. [Proffatt, Jury Trial, sec. 456.] The power, however, has long been exercised to correct obvious errors in substance as well as in form. The rule has been amplified to the extent of authorizing the court, before the recording of the verdict and before the discharge of the jury, and while their relation to the case as jurors continues, to require a reconsideration of the verdict, not merely to correct error or remove obscurity in the verdict but to alter it substantially if the- jury so agree. ’ ’

And this court has said upon this subject: “The court may direct the jury to amend, when the verdict is imperfect and informal, and may send them back to the jury room for that purpose. In every case of a verdict rendered the judge should look after its form and substance so as to prevent a doubtful or insufficient finding from passing into the records of the court. ’ ’ [Cattell v. Publishing Co., 88 Mo. l. c. 359; Gurley v. O’Dwyer, 61 Mo. App. 348.]

“It sufficiently appears on the face of the proceedings in court upon the return of the- jury with their verdicts herein fully set out, that their return was such as ought to have been amended, that it was in fact properly amended, and that the amendment was made in open court in the presence and with the assent of the jury before entry and before the court did in fact adjourn, and we find no error in this proceeding.” Citing cases. [Kreibohm v. Yancey, 154 Mo. l. c. 82, 83.]

“It is common to reject as surplusage any statement in a verdict that does not affect the real finding, and enter judgment upon such finding, and to do so has never been held to be error.” [Ranney v. Bader, 48 Mo. l. c. 541.]

“It is tbe duty of tbe court, when informal verdicts are returned by the jury, either to have them retire to tbe jury room and correct tbe informality, or else to correct tbe verdict in open court in tbe presence and with tbe consent of tbe jury.” [Hartman v. Railroad, 48 Mo. App. l. c. 625; Gaither v. Wilmer, 5 L. R. A. (Md.) 756, note.]

Y. In tbe assignment of errors counsel for appellants complain of tbe action of tbe trial court in permitting respondents ’ counsel in course of argument to use a photograph introduced in evidence for a purpose for which it was not introduced, and to refer to and comment upon that purpose.

No reference is made to this alleged error by counsel for appellants in their briefs, and we suppose therefrom that tbe matter has been abandoned and is not urged upon us for consideration.

However, we investigated the abstract of tbe record bearing upon that matter, and are of tbe opinion that there is no merit in this assignment.

Finding no error in tbe record, tbe judgment should be affirmed; and it is so ordered. All concur.


text:
    JOHN L. McLAUGHLIN, Appellant, v. MARY M. McLAUGHLIN.
    Division One,
    May 31, 1910.
    1. CONVICT: Suit Involving Property. A convict confined in the penitentiary for a term less than life is civilly dead, and when his estate is being attacked by a suit he can, under the statute, be in court only through a trustee, and no valid judgment affecting his property can be rendered until such trustee has been appointed and brought into court.

      2. -: -: Divorce and Alimony. In a divorce suit hy the wife against her husband who is a convict confined in the penitentiary for a term of years, no valid decree can he entered investing her with his real estate unless he is in court through a trustee; and if such decree is entered, without the appointment of a trustee, he can, after his release and pardon by the Governor, maintain a suit for the recovery of his property, and to have set aside so much of the decree as vests the title in the wife.
    3. -: -: -: Summons: Exception. The service of a summons in a suit for a divorce upon the convict should he considered an exception grafted upon the statutory law making invalid a service of summons on an incarcerated convict in a suit involving his property. That exception cannot he permitted to extend to a case wherein it is sought under a petition for a divorce to confiscate the convict’s estate. The proceeding for a divorce, pure and simple, without alimony or sequestration of property, is one affecting the status of the parties, and not the estate of the convict, and to this extent the exception, permitting suit against the convict without a trustee, could in reason go, for the statute (Art. 2, chap. 141,' R. S. 1899) does not contemplate that the trustee look after the marriage relation of the parties; hut it does contemplate that when the convict’s estate is attacked, a trustee shall he present in court and made a party to the proceeding.
    4. -: -: Statutes Complete Scheme: Common Law. Article 2 of Chapter 141, Revised Statutes 1899, provides a complete scheme within itself for the holding, management, protection and disbursement of the estate of the convict incarcerated for less than life, and all that is to he done through a trustee, and it can he legally done in no other way. Those statutes are a step in advance of the common law, and the broad generalities of the common law are of no binding force as against them.
    5. JUDGMENT VOID ON FACE: Equity: Action to Quiet Title. In an action under Sec. 650, R. S. 1899, to ascertain and determine the title, if a judgment conveying the title was void on its face, the court should say so, and not sustain a demurrer to the petition on the ground that a hill in equity to cancel it is unnecessary.
    6.---: -: To Remove Cloud: Convict. The fact that a judgment, in a suit brought hy a wife for divorce from her incarcerated husband alone and decreeing to her his lands hy way of alimony, is void, does not appear upon the face of the record, and therefore a hill in equity to remove it as a cloud upon the title of the liberated convict is maintainable, and should not be dismissed on the theory that no suit in equity was necessary.
    7. -: -: Homestead. Whether or not the homestead of the head of a family can be decreed in kind to a successful plaintiff in a divorce suit is an extremely delicate question and one about which able legal minds might differ. Therefore, a suit in equity to set aside a judgment so decreeing should not be dismissed on the ground that, the judgment being void, no suit in equity is necessary. The delicacy of such question is adverted to in this case, but it is not decided, because the judgment decreeing away the incarcerated convict’s homestead land is held invalid and voidable on another ground, namely, because he was not represented by a trustee in the case which resulted in that judgment, and therefore the question of whether in any suit the homestead could be decreed to the wife as alimony is not decided.
    Appeal from Caldwell Circuit Court. — Hon. Francis H. Trimble, Judge.
    Eeversed and demanded.

      J. M. Davis S Son for appellant.
    (1) Alimony is an allowance payable out of the husband’s estate for the wife’s support, payable periodically, except where the statutes authorize an award in gross. It is not a portion of the husband’s estate to be assigned1 to her in fee simple. It never covers the estate itself, and cannot be decreed in specific property, except by statutory authorization or by agreement. 1 Bailey on Jur., sec. 271, p. 282; 2 Am. and Eng. Ency. Law (2 Ed.), p. 1291; 2 Bishop on Mar. Div. and Sep., secs. 835 and 1117; Calme v. Calme, 25 N. J. Eq. 548; Almond v. Almond, 4 Bandolph (Ya.) 662, 15 Am. Dec. 781; Campbell v. Campbell, 37 Wis. 216; Bacon v. Bacon, 43 Wis. 203; Perkins v. Perkins, 16'Mich. 167; McGuire v. McGuire, 7 Dana 187; Alexander v. Alexander, 140 Ind. 560. tinder the common law alimony can be awarded only in periodical allowances, not in gross, and this has been modified to the extent only of permitting it to he awarded in gross, but the court can only render a money judgment. R. S. 1899, sec. 2927. Upon “default” by the husband of the payment of the money judgment, the court may enforce payment of its money judgments by execution, sequestration of the rents and profits, etc., but this power only comes into existence after an order for payment has been made and “upon default . . .'to pay . . . such alimony.” (2) The sentence of plaintiff; to the penitentiary suspended all of his civil rights, and the court was without authority to enter a judgment affecting his property rights, until the appointment of a trustee, as required by section 8930, R. S- 1899'. R. S. 1899', sec. 2382 ; Rice v. Lawrence, 29- Kan. 113; New v. Smith, 84 Pac. (Kan.) 1030'; Williams v. Shackleford, 97 Mo. 322. (3) This court in a divorce action, under the pretence of awarding alimony, granted real estate, which under no circumstances it had authority to grant; its judgment was to that extent void. Scott v. Royston, 223 Mo. 568; Fithian v. Monks, 43 Mo. 522; 1 Freeman on Judg. (4 Ed.), secs. 116, 118, 120c; Cooper v. Reynolds, 10 Wall. 316; Richey v. Sayers, 100 Fed. 520; United States v. Walker, 109 U. S. 258; Windsor v. McYey, 93 U. S. 274; Hall v. Yernor, 49 L. R. A. (W. Ya.) 464; Risley v. Bank, 83 N. Y. 337; 24 Am. and Eng. Ency. Law (2 Ed.), 717-19: (4) The judgment undertaking to divest plaintiff of the title to his land being void for want of power of the court to render such judgment, plaintiff is entitled to attack it by a bill in equity. Johnson v. Coleman, 23 Wis. 452; Lumber Co. v. Ward, 85 Pac. (Okla.) 459; Caruthers v. Hortsfield, 3 Yerg. 366; White v. Espy, 21 Ore. 328; Murray v. Surety Co., 70 Fed. 346. (5) The first count of plaintiff’s petition, having for its purpose the annulling of the judgment, has every element of a direct attack. Yan Fleet, Col. Attack, secs. 2 and 3; Wanderley v. Lafayette Co., 150 Mo. 653; Whetstone v. Whetstone, 31 la. 276; 2 Colo. Law Times, 59; Truesdail v. McCormick, 126 Mo. 44. (6) Although the judgment was void it constituted color of title, and plaintiff is entitled to' the relief he seeks; Jones v. Thomas, 124 Mo. 586. (7) The judgment being such a cloud on plaintiff’s title as to require legal acumen to discover its invalidity, a court of equity will entertain jurisdiction to remove the cloud. Bank v. Evans,. 51 Mo. 657; Yerdin v. St. Louis, 131 Mo. 78; Jewett v. Boardman, 181 Mo. 657; Perkins v. Baer, 95 Mo. App. 78. (8) But if we treat this as a collateral attack on ■ the former judgment, then the count to ascertain title is maintainable, and that part of the former judgment attacked should be declared void for lack of jurisdiction in the court to render the judgment it did render, which infirmity appears on the face of the record. Adams v. Cowles, 95 Mo. 507; State ex rel. v. Tullbck, 108 Mo. App. 35. (9) Under the last count of his petition based on sec. 650, E. S. 1899, to ascertain and determine title, plaintiff was entitled to have the judgment of the court as to the title and interest of plaintiff and defendant in the premises in controversy; that count of the petition complied with every requirement of the statute and therefore was not subject to demurrer. Huff v. Land Co., 157 Mo. 65; Spore v. Land Co., 186 Mo. 656; Bulls v. Woolfolk, 175 Mo. 278; Elliott v. Shepherd, 179 Mo. 382. Under this section this action is maintainable without regard to the nature of the claim of the respective parties. Utter v. Sidman, 170 Mo. 289; Meriwether v. Love, 167 Mo. 514; Garrison v. Frazier, 165 Mo. 46. This statute is designed to determine all questions, whether of law or equity, relating to the respective title of the parties. Wheeler v. Land Co., 189 Mo. 289; Scott v. Eoyston, 223 Mo. 568.

      Crosby Johnson and C. C. Johnson for respondent.
    (1) If what the plaintiff .says is true, then the decree in question was void on its face, and therefore not a cloud upon his title to the land in question. Bolland v. Johnson, 80 Mo. 34'; Humphreys v. Milling Co., 98 Mo. 42; Truesdail v. McCormick, 126 Mo. 39. (2) This proceeding, although called by plaintiff’s attorney a direct attack on the judgment in question, is unquestionably a collateral attack upon such judgment. It could not be directly attacked except by appeal or writ of error. Truesdail v. McCormick, 126 Mo. 39; Ketchum v. Chrisman, 128 Mo. 38; Sims v. Gray, 66 Mo. 613. (3) Service of writ and summons on defendant in the penitentiary by the sheriff of Cole county, gave the court jurisdiction over the defendant in person. Gray v. Gray, 194 Mo. App. 529; Bland v. Bland, 12 Moah. Eng. Rep. 688. (4) As the property is described in the petition, which was personally served on the defendant in the divorce suit, the decree in that case is impervious to attack for any mere irregularity. Orvis v. Elliott, 65 Mo. App. 96; Jameson v. Kinsep, 85 Mo. App. 298; Covington v. Chamblin, 156 Mo. 574. (5) Our circuit courts are clothed with power to divest and vest title in the parties to the suit, in a proper case. Macklen v. Allenberg, 199 Mo. 337; R. S. 1899, secs. 785, 787. (6) The defendant could not be imprisoned on'a judgment for alimony. Kinsolving’s Case, 135 Mo. App. 631. (7) The grant of a power is considered1 to include the use of incidental powers to make the principal grant effective. Hardware Co. v. Building Co., 132 Mo. 452.' (8) The circuit court had power to award land as alimony. R. S. 1899; sec. 2126; Berthelemy v. Johnson, 3 B. Mon. (Ky.) 99, 38 Am. Dec. 179; Mussing v. Mussing, 194 111. 126; "Wheeler v. Wheeler, 18 HI. 39; Crews v. Mooney, 74 Mo. 29; Williams v. Shackleford, 97 Mo. 322. (9) A homestead is exempt from execution on a judgment for alimony. Biffle v. Pulliam, 114 Mo. 50.
   GRAVES, J.

Plaintiff and defendant were formerly husband and wife. This cause comes here upon a judgment sustaining a demurrer to plaintiff’s petition. His petition was in three counts originally, but it is stated that the second count thereof, which appears from the trial judge’s written opinion filed in the cause to have been a count in ejectment, was dismissed.

In the first count, plaintiff seeks by a direct count in equity to set aside that part of a judgment in a divorce suit between him and his wife by which the title to eighty acres of land in Caldwell county was decreed out of him and vested in his former wife, the defendant herein. In said count it is averred that plaintiff, from 1885 to 1897 was the owner of said land, was the head of a family and lived thereon; that his deed was recorded in Caldwell county; that he has never conveyed the same; that in 1897 he was convicted of murder and sentenced to the penitentiary of Missouri for ten years; that he remained in the penitentiary from 1898 to March 7, 1904, at which time he was released, and on May 19th was granted a full pardon by the Governor of the State. It is then averred that in 1902, whilst plaintiff was thus confined in the penitentiary and civilly dead, the defendant brought suit against him for divorce and alimony, as well as the care and custody of the children, and asked that such alimony or support and maintenance be decreed to her out of the property of this plaintiff; that service of the summons in said divorce suit was had upon plaintiff while he was incarcerated in the penitentiary under the judgment and sentence for murder aforesaid; that he could not defend the same; that in such divorce suit the defendant in this case was granted a divorce from this plaintiff, together with the custody of the children of their marriage, and in said judgment and decree it was further decreed that the defendant in this cause he vested with the title to the land aforesaid, and that the title to the land aforesaid was divested from this plaintiff; that said action was beyond the powers and jurisdiction of the circuit court, and such decree, in so far as it affects the land, was beyond the powers and jurisdiction of the court, but was such as to create a cloud upon plaintiff’s title to said land, as well as his homestead rights therein. The said first count concludes with the following prayer:

“Wherefore, plaintiff prays that said judgment and decree of this court divesting out of this plaintiff the title to said real estate described as aforesaid, and vesting the same in the defendant Mary M. McLaughlin, be declared to be a cloud upon plaintiff’s title to said real estate. That the same be set aside and for naught held and that the court remove said judgment and decree as a cloud upon the title of plaintiff in and to said land, and for all such other and further relief as pertaineth to equity and good conscience, and as the plaintiff may on the trial of said cause show himself entitled to.”

The third count is one under section 650, to have ascertained and determined the respective interests of the parties to the land in question. In this count it is averred that defendant claims some interest in the land under the judgment described in the first count. This second count pleads all the facts pleaded in the first count, and alleges in addition that the equity in said land did not exceed $1500', the sum allowed as a homestead. By the prayer the court was asked to ascertain and determine the interests of the parties in and to the land.

To the petition the defendant demurred in this, language:

“Defendant for plea to the first count of plaintiff’s petition in above cause demurs to tbe same for tbe following reasons:

“1. Because the facts therein stated1 constitute no cause of action against this defendant.

“2. Because tbe reasons assigned therein as causes for bolding tbe decree of divorce and alimony as void or invalid are not good in law.

“3. Because tbe facts stated therein do not entitle tbe plaintiff to tbe relief sought or any relief.

“To tbe third count of tbe petition tbe defendant demurs on tbe same grounds and for like reasons as those assigned as ground’s of demurrer to tbe first count. ’ ’

Plaintiff refused to plead further and upon judgment being entered against him has appealed to this court.

I. Plaintiff does not challenge that portion of tbe decree in tbe original cause which grants tbe divorce, but only that portion which deprived him of bis property. He charges in bis petition that be was civilly dead, and that no trustee was appointed for bis estate-as might have been done under article 2, chapter 141,. Revised Statutes 1899’. Tbe position of plaintiff is that a trustee must be appointed under said article 2, before-the court has jurisdiction of a case involving bis estate,, as contradistinguished from tbe marriage status.

Plaintiff was sentenced for a term of ten years; Our statute, Revised Statutes 1899, section 2382, reads: “A sentence of imprisonment in tbe penitentiary for a term less than life suspends all civil rights of tbe persons so sentenced, during tbe term thereof, and forfeits all public offices and trusts, authority and power; and tbe person sentenced to such imprisonment for life-shall thereafter be deemed civilly dead.”

Section 89-30 is tbe statute pertaining to tbs appointment of a trustee, and reads: “Whenever any persons shall be imprisoned in the penitentiary for a term less than his natural life, a trustee, to take charge of and manage his estate, may be appointed by the circuit court of the county in which such convict last resided; or if he have no known place of residence, then by the court of the county in which the conviction was had, on the application of any of his relatives, or any relative of his wife, or any creditor.”

By other sections of article 2, chapter 141, supra, it is provided, (1) such trustee shall take an oath and give bond, (2) and shall be under the control of the court appointing him, (3) upon taking of the oath and filing of the bond all of the estate of the convict shall vest in the trustee, (4) such trustee may prosecute and defend actions by or against such convict, (5) the court may order sale of property for support and maintenance of family and education of children, (6) trustee shall settle with creditors, and to that end may examine witnesses, and (7) such trustee may redeem mortgages, conditional contracts and pledges of the convict. Other provisions are found in this article, but the ones enumerated suffice to illustrate the scope thereof. Finally the trustee is required upon the release of the convict to turn over the estate to him, or' in the event of ,his death to account to the personal representative.

The question, therefore, is, should the plaintiff in the divorce proceeding have had a trustee appointed before instituting a suit which involved the taking of the convict’s estate, and without there being* such trustee did the circuit court have the right to proceed with the cause in so far as it pertained to the estate of the convict? The question is not one void of difficulties. Nor are the cases from other States always enlightening, because of the difference in the statutory provisions.

It would appear that under the common law, the convict could not sue, but he could be sued. The exact status of the convict at common law is not one to he determined without some perplexities. Andrews, J., in Avery v. Everett, 110 N. Y. l. c. 333, in discussing the status of a convict under the statutes of New York, hut having occasion to exploit the field of the common law, has well said: “Anyone who takes the pains to explore the ancient, and in many respects obsolete, learning connected with the doctrine of civil death in consequence of crime, will find that he has to grope his way along paths marked by obscure, flickering and sometimes misleading lights, and he cannot feel sure that at some point in his course he has not missed the true road. But there is a guiding principle which, in the present ease, greatly aids in solving the question presented, and that is, that no one can or ought to he divested of his property in invitum, except by the clear warrant of law, and this, we think, is not found in the statute relating to civil death.”

The law-writers usually announce the broad rule that at common law the convict could he sued, hut being deprived of his civil rights could not sue. [6 Am. and Eng. Ency. Law (2 Ed.), p. 65; 9 Cyc. 871.]

In the latter authority, at page 874, it is said: “By the great weight of authority, offenders, whether sentenced to State prison for life or for a term of years during which their civil rights are suspended, are still liable to he sued, and this liability necessarily carries with it the right to defend; although there are cases holding that a pending action is abated by the conviction and sentence of the defendant to imprisonment in the State prison. But again it has been held that a plea or answer in abatement setting up the civil death of the defendant is inconsistent and bad on demurrer, because the fact that he is able to plead or answer shows him to he alive. Where the statute provides for the appointment of a trustee of the estate of one imprisoned for crime, it is clear that such trustee should defend any action against the convict -that may be pending at tbe time of Ms conviction and sentence, and proceedings ongbt to be stayed until .after Ms appointment and qualification.”

In some cases it has been suggested that statutes declaring tbe civil death of convicted felons are but declaratory of the common law. In a way this is no doubt true, but it should not be overlooked that often statutes, whilst being in a sense declaratory of the common law, give indication of a legislative purpose to thwart the rigors of the common law. So to our mind the solution of the point in issue must be found in óur statutes. The first section quoted (Sec. 2382) modifies and changes the common law. Under it a person sentenced for a felony for a term less than life •only has his civil rights suspended during the term of the sentence. The common law rule went much further. In fact, under our Constitution, no statute could fully declare the common law status of a convicted felon. Not only is this true, but by article 2, chapter 141, supra, full provision is made for the protection •of the estate of the convict. At common law he could not sue to protect his estate, but under article 2 the law provides for a trustee to sue for him. Here we have an evidence of a legislative intent to modify the rigid rules of the common law. Section 2382, and’ the various sections of article 2, supra, must be construed together. Whilst by the first section the convict’s civil ■rights are suspended, yet they are not so suspended as to prevent the proper administration of his affairs under the sundry provisions of the latter article. And may it not be suggested that whilst at common law he could be sued, yet there was no adequate means given him for a proper defense, and the sections of •article 2, supra, were no doubt passed to the end that this situation would be relieved? This court has held that a deed of trust executed by a convict is void. [Williams v. Shackleford, 97 Mo. 322.] If sued, therefore, the convict would be powerless to make a contract binding bimself and his estate to procure legal talent to defend the suit, or to procure the necessary incidental expenses of a defense to the suit. The only way a defense could be properly made would be through the trustee provided for by the terms of article 2 of chapter 141. Under these statutes, the trustee under the direction of the court appointing him could see that the suit was properly defended1.

When all of our statutory provisions are taken and considered as a whole, as must be done, we are of opinion that they contemplate that when the estate of a convict is being attacked by a suit, such convict should be in court through his trustee before a valid judgment could be entered touching his property. In Bowles v. Habermann, 95 N. Y. 246, the New York court deals in a limited1 measure with the question before us. In that case Bowles had procured, before his conviction of murder, a judgment against the defendant in an action for tort. An appeal was taken by the defendant to the New York Court of Appeals. Pending this appeal the defendant was convicted, sentenced to the penitentiary for ten years, and was incarcerated therein. Defendant filed his motion to suspend action on the case during the term of plaintiff’s sentence. This motion the court overruled. And later the case was heard and the judgment affirmed. [98 N. Y. 267.] In the opinion upon the motion, 95 N. Y. l. c. 250, Earl, J., said: “But provisions are made by law by which this judgment may be enforced, and the appeal defended on behalf of the plaintiff. It is provided in the Revised Statutes (2 R. S. 15), that whenever any debtor shall be imprisoned in a State prison for any term less than his natural life, or in any penitentiary or county jail for any term more than one year, application may be made to the officers specified by any creditor of such person, or by any relative, or by any relative of his wife, for the appointment of trustees to take charge of his estate; that the trustees so appointed shall have the same rights in, and power over, his real and personal estate as trustees of the estate of an absconding debtor appointed under the Revised Statutes have; and it is further provided that such trustees shall pay the debts of the imprisoned debtor, and after paying his debts and their disbursements and commissions, that they may, under the direction of the officer who appointed them, or of any equity judge, from time to time, apply the surplus of any moneys in their hands to the support of the wife and children of such debtor and of such other relatives as he may he bound to support, and to the education of his children. So in this case trustees may he appointed under these provisions who may defend this appeal and enforce this judgment, and collect the money thereon, and' after paying the debts of the plaintiff, if there is any surplus and no relatives to be supported, the trustees will hold that for him until the term of his imprisonment shall have expired, when they will be bound to account to him.” The provisions of the New York statute are much like our own for the appointment of a trustee. In effect the New York court holds that whilst at common law the plaintiff could not prosecute a suit, yet after the prosecution was begun, under the statute his trustee could proceed.

In Kansas the statutes are much like those of this State. In fact most of the sections are practically literal copies of our article 2, chapter 141. The force and effect of such statutes came under review in the case of Commissioners of Rice County v. Lawrence, 29 Kan. 158. In that case the court passed judgment upon sections 338 and 348 of chapter 82, Compiled Laws of 1879. Section 338 is identical with our section 8930, quoted supra, and for that reason we shall-not repeat the language here. Section 343 of the Kansas law is identical with our section 8935 and reads thus: “Such trustee may sue for and recover, in his own name, any of the estate, property or effects belonging-to, and all debts and sums of money due or to become due to, sucb imprisoned convict, and may prosecute and defend all actions commenced by or against sucb convict.” We quote tbis section in full as we bad only given tbe substance thereof above after having quoted our section 8930.

In tbe Lawrence case, tbe facts were: Lawrence was a defaulting treasurer of Rice county, Kansas. November. 25, 1876, suit was brought against him and bis bondsmen to recover $20,000. In tbis suit issue was joined, and in June, 1877, by agreement tbe venue thereof was changed to Reno county. February 5, 1878, Lawrence and bis attorneys being present, tbe case was referred to a referee by an order of tbe court. Tbe referee qualified, beard tbe case and reported to tbe court. The report was confirmed and judgment entered April 15, 1878, for somethiug over $14,000. Execution was issued June 5, 1878, and on August 3d following, tbe personal and real property of Lawrence was sold, and tbis sale confirmed'by tbe court April 8, 1879. Sucb is the history of tbe civil case. It will be noticed that defendant was not only duly served1, but appeared and answered. Now to tbe accompanying criminal case. June 20, 1877, whilst tbe civil action was pending, but before tbe referee order was made, Lawrence was indicted for embezzlement. August 21, 1877, tbe venue of tbe cause was. changed to Reno county. On February 5, 1878, tbe same day that tbe reference was ordered, Lawrence was sentenced to tbe penitentiary for three years for embezzlement. He remained in tbe penitentiary until June, 1880, when be was released upon a pardon from tbe Governor. February 4, 1882, be filed motion to set aside tbe judgment in tbe civil cause entered as above stated, on tbe ground that be was under sentence when tbe judgment was entered, and no trustee was appointed to manage Ms estate or defend said civil action. This motion was sustained by the lower court and its judgment affirmed by the Supreme Court. In the course of the opinion, Horton, C. J., after quoting sections 338 and 343> chapter 82, of their laws, which are practically identical with sections 8930 and 8935 of our laws, among other things said: “Under these and the other sections of the article relating to the custody and management of the estates of convicts, we think that the service of a summons on a defendant, while imprisoned in the penitentiary for a term of years— excepting in a single instance hereafter noticed — must be treated as void, and that the conviction, sentence and imprisonment of the defendant in the State penitentiary, pending the action against him prior to the hearing or trial thereof, must abate the action; at least, a judgment rendered in such a case may be treated as a nullity and set aside by the court rendering it, upon proper proceedings had. [Comp. Laws 1879, art. 17, 770-773.] Of course, if a trustee is appointed under the statute, he may contest any action already commenced against the convict, and the judgment thus rendered would be valid in all respects. The provisions of said article 17 prescribe the remedy to be pursued by the court, when the civil rights of the debtor are suspended by imprisonment in the penitentiary under sentence for life, or for a term of years less than life, and these provisions in the nature of things are and ought to be exclusive, not merely cumulative. Inextricable confusion would follow, if one creditor proceeded personally against the convict after he is imprisoned, and another against a trustee, appointed upon his application. Not only would the proceedings to collect the judgments be liable to conflict, but, moreover, the object of the statute would be nullified. After a debtor is imprisoned under the law, he is in no condition to appear to defend a civil action pending against him; he is in no condition to consult or advise with witnesses or counsel concerning the defense of the action; nor is he in any condition to employ counsel, or continue the services of counsel previously engaged. That conviction, sentence and imprisonment of the defendant suspended his civil rights, and also suspended his creditors’ rights to bring action against him. After his imprisonment, a trustee might have been appointed, upon the application of plaintiff or any other creditor, to take charge of and manage his estate; but no valid judgment could be rendered after his imprisonment, without the appointment of a trustee.”

The court then proceeds to discuss the New York cases, but finally reaches a further question urged in the case at bar. It is urged in the case at bar that the statute makes a conviction for felony a ground for divorce, and therefore the defendant was properly served in this case. The Supreme Court of Kansas in the Lawrence case thus disposes of the same question: “Again our attention is called to section 639 of the Civil Code, empowering a district court to grant a divorce where either of the parties has been convicted of a felony and imprisonment in the penitentiary therefor subsequent to the marriage. Upon this, counsel contend that the statute recognizes that process for the commencement of an action against a convict may be served after imprisonment. G-ranted; but this is an exception specially provided for by the statute, and1 therefore does not militate against the construction given by us to the Matute regarding the' estates of convicts. In an action for divorce, for such a cause, the conviction and imprisonment are the material facts to be proved, and there are manifest and manifold reasons, which will naturally occur to anyone upon consideration, why the service in a divorce proceeding founded upon the conviction and imprisonment of the defendant ought to be excepted from the general rule forbidding the service of process upon a defendant in prison.”

The doctrine of the Lawrence case, snpra, is reiterated by the Kansas court in the case of New v. Smith, 84 Pac. 1030. We find1 that the Kansas court is the only one which has undertaken to express views upon statutes like our own, and the construction given such statutes appears to be reasonable.

To our mind the enactment of article 2, chapter 141, had no other purpose than that of protecting the estate of a convict. It is a step in advance of the common law. Under the common law he could be made a party defendant, but he was shorn of the power to make a real defense. Civilly dead, he could not contract as to his defense. Incarcerated, he could not defend in person. Every means of a real defense was taken from him, and the Legislature had some purpose when it passed these laws as to the preservation of his estate. To our mind that purpose was to compel the appointment of a trustee whenever it was desired to attack his estate, either for the payment of debts or for the support and maintenance of his wife and children.

By section 8950, it is provided: “The court shall have power, from time to time, to make, and cause the trustee to execute, orders for the application of any portion of the proceeds of estates in their hands for the support and maintenance of the family of such convict, and the education of his children, and to set apart and reserve to the use of such family any property, real or personal, • when it may be done without prejudice to the rights of creditors.”

As to creditors, section 8937 provides: “The trustee shall settle matters and accounts between such imprisoned convict and his creditors, and may examine witnesses touching such matters and accounts, upon oath, to be administered by him; he may, under the direction of the court, compound with any person indebted to such imprisoned convict, and1 thereupon discharge all demands against such convict.”

Other sections provide the details of hearing and 'determining the claims of creditors. In fact, this article provides a complete scheme within itself for the holding, management, protection and disbursement of the estate of a convict. Its very purpose is the preservation and protection of the estate and the thwarting of the designs of creditors and others in their attack upon the estate of one helpless by his incarceration. The broad generalities of the common law have no place in a State with such statutes as we have. As said by Chief Justice Horton, the service of a summons for a divorce should be considered as an exception grafted upon our statutory law. This exception should not be permitted to extend to a case where under a petition for divorce it is sought to confiscate the estate of the convict. The proceeding for a divorce pure and simple, without alimony or sequestration of property, is one affecting the status of the parties and not the estate, and to this extent the exception could in reason go, and no trustee need be appointed. The statute does not contemplate that the trustee look after the marriage status of the parties, but the statut.e does contemplate that when the convict’s estate is attacked, a trustee should be present in court and as a party to the proceeding.

We are cited to the case. of Gray v. Gray, 104 Mo. App. 520, wherein the St. Louis Court of Appeals Reid that a convict in the penitentiary could be sued for divorce. The lower court held that the party was civilly dead and could not be sued and the plaintiff’s bill was dismissed. This judgment the Court of Appeals reversed, but added: “Courts should carefully protect the rights and interests of a disabled defendant in a proceeding like this, and it would not be improper to appoint some attorney to look after the case as the friend of the court if no defense is made; especially if property interests are involved.”

What was said as to property interests was gratuitous in that case, and without any consideration of article 2, of chapter 141, of our statutes. The cases relied upon by that court were the old cases announcing the old. common law rule, which cases, in our judgment, have no application in a case where it is sought to obtain a money judgment, or sequestrate property in a jurisdiction having such statutes as we have in this State.

We, therefore, hold that on the face of the admitted facts, for the demurrer admits the facts pleaded, the judgment in the divorce suit was invalid and void in so far as it divested the present plaintiff of title to the land1 in’ dispute. '

II. Another extremely delicate question is presented by this record, and that is whether or not the homestead of the head of a family can be decreed in kind to the successful plaintiff in a divorce suit. What we have concluded above obviates a discussion of this question and we leave it to a case wherein necessity requires a ruling.

In other words, having found that the judgment attacked in this case is invalid and voidable, it is not necessary to discuss it further for the full determination of the case at bar.

III. But it is urged that if the judgment is void upon its face then there is no necessity for a bill in equity to cancel it and therefore the demurrer was properly sustained. How stands this proposition, remembering that the first count is one in equity to remove cloud upon title, and the other an action under section 650 to define title? As to the latter count, this insistence could not be sustained. In an action under section 650, if the judgment conveying title was void upon its face, then the court should so say, and declare that defendant acquired no title thereby, and further that the title was vested in plaintiff under the facts pleaded, if such facts are proven.

Nor are we prepared to say that the insistence- of defendant is good' as to the first count. On the theory that the judgment should be held void because defendant was a convict at the time it was entered, it must be borne in mind that such fact making it void does not appear upon the face of the record, but must be shown dehors the record. When such is the case, the judgment itself does cast a cloud, and equity will remove the same upon proper proof.

But going to the other question, i. e., as to whether or not the judgment is void upon its face because of decreeing the title to a homestead in lieu of alimony, it can be said that the question is one of such grave doubt, that even on that ground such a cloud would be cast upon the title as to justify equitable relief. This latter question as to the validity of the judgment is by no means clear and the best legal minds might differ thereon.

The demurrer was improperly sustained and the judgment in this case is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

All concur.