author: BRACE, P. J.

text:
    BUTZ, Appellant, v. MURCH BROTHERS CONSTRUCTION COMPANY.
    Division One,
    November 21, 1906.
    1. CONTRACTOR: In Charge of Building: Proof. Where the answer admits that at the time of the accident to plaintiff defendant was engaged in erecting the building, that plaintiff was in its employ on the third floor thereof, that he fell therefrom and received personal injuries, and the proof tends to prove that defendant was engaged in constructing the building as a master to whose orders and directions its employees doing the physical work yielded obedience, there is ample proof that defendant “had charge of the construction of the building” within the meaning of an ordinance requiring the person “having charge of the construction of a building to have joists or girders of each floor above the second floor covered with scaffold boards,” etc. A primary definition of the word “erect” is “to construct.”
    2. NEGLIGENCE: Contributory: Manifest Danger: Question for Jury: Uncovered Joist and Girders: Nonsuit. Where the entire third floor on which plaintiff was at work in handing up boards to the carpenters on the floor above was denuded of its covering except one plank, at the time he fell, and where, in the condition in which the floor was, through the failure of his master to obey the ordinance which required the joist and girders to be covered, compliance with the master’s orders was manifestly attended with some danger, negligence on the servant’s part does not necessarily arise from his knowledge of the danger. In order that it should, the danger in obeying the order must be so glaring and imminent that a man of ordinary prudence would not undertake to obey the master’s order; and the question, whether the danger was of that character or not, when one about which reasonable men might differ, is one of fact, to be considered by the jury in determining whether the servant had been guilty of negligence contributing to his injury. And in such case it is error for the trial court to force the injured servant to an involuntary nonsuit.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Reversed and remanded. (ivith directions).

      A. R. Taylor for appellant.
    (1) There was clear negligence against defendant established, for it is a settled rule of decision in this State that a violation of such an ordinance is negligence. Brannock v. Elmore, 114 Mo. 59; 1 Shearman & Redfield on Negligence, sec. 13; Murray v. Railroad, 101 Mo. 236 ,* Dickson v. Railroad, 104 Mo. 501; Hutchinson v. Railroad, 161 Mo. 253; Weller v. Railroad, 164 Mo. .205; Sluder v. Railroad, 1891 Mo. 135; Wendler v. People’s House Furnishing Co., 165 Mo. 527. (2) This ordinance is a valid exercise of the powers inherent in a municipal corporation to pass laws or ordinances for the protection of the lives and limbs of citizens. This is clearly deducible from the foregoing authorities— and is emphatically so declared in the case of Brannock v. Elmore, supra, of an ordinance in pari materia with this ordinance; and the ruling of the court upon a similar ordinance in the case of Wendler v. People’s House Furnishing Co., 165. Mo. 541, was to the same effect. (3) The risk arising from a failure of the defendant master to obey a law enacted for the protection of workmen is not assumed by the servant. It is not an ordinary risk of the employment, because it would violate reason and fact to say that upon entering the employment the master and servant in this case both understood that the master would fail to obey a binding law made for the protection of the servant, to-wit, render safe the third story of the building as the work progressed, by covering the joists and girders with material so as “to protect workmen either from falling through such joists,” etc., and we submit that it would stultify the intelligence of the workman to imply that he assented voluntarily to this neglect of the master, to do that for his protection which the law required. ' The following cases hold that a servant never assumes a peril, arising by reason of the neglect of a master, to perform the duties he owes the servant: Blanton v. Dold, 109 Mo. 75; Settle v. Railroad, 127 Mo. 342; Pauck v. Dressed Beef Co. 159 Mo. 477; Curtis v. McNair 173 Mo. 280; "Wendler v. People’s House Furnishing Co., 165 Mo. 527; Cole v. Railroad, 183 Mo. 94. The following cases hold that a servant cannot contract to assume a peril arising from a neglect of duty which the law imposes upon the master: Blanton v. Dold, 109 Mo. 75; Railroad v. Spangler, 44 Ohio St. 471; Roesner v. Hermann, 10 Bliss 486; Railroad v. Eubanks, 48 Ark. 460 ; Hessing v. Railroad, 91 Ala. 514. (4) In this case the plaintiff had been engaged less than one hour at the work in which he sustained disaster. He had been directly ordered to do the work by the master, through Allen Spencer, the foreman. He testifies that he didn’t realize the danger. He thought that notwithstanding the failure of the master to cover the joists sufficiently, as required by the law, he could use the means provided with safety. His master thought so too, or he wouldn’t have ordered him to do the work, presumably. He fell a victim to the fact that the plank on which he walked was treacherous and turned or broke with him, and he was cast into the chasm, open and uncovered, through the master’s neglect. If it be contended that the turning or breaking of the plank was the cause, the answer is that it was a part of the cause, but the open chasm prepared by the master’s negligence was the direct cause of the injury. Bassett v. St. Joseph, 53 Mo. 300; Lore v. Mfg. Co., 160 Mo. 626; Musick v. Pkg. Co., 58 Mo. App. 322: Newcomb v. Railroad, 169 Mo. 425.

      Percy Werner for respondent.
    (1) There was a total failure of proof that defendant “had charge of the construction” of the building in question, and consequently no evidence to' support the issue as to negligence or violation of the ordinance in failing to securely cover the girders by joists of the third floor, and, hence, it was the duty of the court to grant the peremptory instruction requested. (2) The negligence which will prevent a recovery is nothing more than the absence of proper care in such case as á person of ordinary prudence would exercise under similar circumstances, and when such contributory negligence is shown as defeats plaintiff’s right of action, it is the duty of the court to declare the result as a matter , of law. Doerr v. St. Louis Brewing Ass’n, 176 Mo. 557; Chaney v. Railroad, 176 Mo. 598; Coatney v. Railroad, 151 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Sindlinger v. Railroad, 126 Mo. 315; Purcell v. Shoe Co., 187 Mo. 276.
   BRACE, P. J.

This is an action to recover damages for personal injuries. At the close of the plaintiff’s evidence the court instructed the jury that under the pleadings and evidence the verdict should be for the defendant. The plaintiff excepted, took a nonsuit with leave, and in due time moved to set the same aside, which motion having been overruled he appeals.

The petition charges:

“That on the 9th day of June, 1903, the plaintiff was engaged in erecting a four-story building at or near the corner of Randolph street and Jefferson avenue, in the city of St. Louis, and had charge of the construction of said building; . . . that the plaintiff was in the service of the defendant as a laborer on the third story of said building and whilst in the due discharge of the duties of his employment he fell through the girders of said building at the third story, and fell to the basement, on the concrete, and sustained great and permanent injuries upon his head, face, nose and. body. His. right leg was crushed and the bones thereof broken and the sinews and ligaments crushed and injured, and also sustained great internal injuries. And the plaintiff avers that the defendant negligently failed to have the girders or joists on the third floor, and above the second floor, of said building covered with boards or other suitable material as said building progressed so as to sufficiently protect workmen and this plaintiff from falling through such girders or joists — and sustaining injury thereby, as required by section 165 of the Revised Ordinances of the city of St. Louis, which violation of said ordinance was the direct cause of plaintiff’s injury as aforesaid.
“And plaintiff further avers that the defendant was further negligent in providing such place, for him to work, in discharge of the duties of his employment, without having said girders or joists covered to prevent him from falling through said girders and sustaining injury thereby, which negligence of the defendant directly contributed to cause plaintiff’s said injuries.”

The answer of defendant, omitting caption, is as follows:

“Comes now the defendant and for answer to plaintiff’s petition admits that it is a corporation organized as therein alleged and that it was at the time mentioned therein engaged in erecting a building at or near the corner of Randolph street and Jefferson avenue, in the city of St. Louis, and admits that on the 9th day of June, 1908, plaintiff was in its employ as a laborer on the third floor of said building and that he fell therefrom and received certain personal injuries, but defendant denies each and every other allegation in said petition contained.
“And for further answer defendant says that the extent to which said third floor and the girders and joists thereof at the time in question, were covered or uncovered was plainly open and visible and obvious to plaintiff at said time, and that he assumed all the risks of injury to himself in working on or walking about said floor in its said condition.
“And for further answer defendant says that the said injuries were sustained by plaintiff as the direct result of his own want of ordinary care in going upon and walking over the uncovered portion of said floor.
“Wherefore, having fully answered, defendant asks to be dismisssed hence with its costs.”
The reply was a general denial.

The ordinance pleaded and given in evidence is as follows:

“It shall be the duty of the person or persons having charge of the construction of any building hereafter erected to have joists or girders of each floor above the second floor covered with scaffold boards or other suitable material as the building progresses, so as to sufficiently protect the workmen, either from falling through such joists or girders, or to protect the workmen or others who may be under or below each floor from falling bricks, tools, or other substances whereby accidents happen, injuries occur and life and limb are endangered.”

The evidence tended to prove that on the 9th of June, 1908, the plaintiff was in the service of the defendant as a common laborer; that he had worked for the defendant about three months, the last month on the building in which he was injured, the foundation of which, as one of the defendant’s employees, he had assisted in laying. The building was three stories above the basement — the third-story room was about fifty by eighty feet — in this room the plaintiff was, on that day, at work passing up boards through a skylight to the carpenters on the roof of the building in obedience to the order of defendant’s foreman — the floor of that room had not yet been laid — the main girders for the floor, of yellow pine, twelve by fourteen inches, running lengthways of the building and from fourteen to sixteen feet apart, with cross girders or joists about seven feet apart, were in place without any covering over them or the spaces between them except that here and there were some loose boards at distances varying from eight to twenty feet apart on the joists or girders and across the spaces between them. The plaintiff, after having passed up two or three boards of the required dimensions and procured another, was on his way with it over one of these boards across one of the open spaces between the joists or girders, to pass it up the skylight, when he fell, and, there being no board or covering within five or six feet of the one he was on, he was precipitated some fifty feet to the concrete floor of the basement below, receiving serious and permanent injuries.

The only question in the case is whether on the evidence under the pleadings the case should have gone to the jury.

•I. The first contention in support of the nonsuit is, that there was a total failure of proof that defendant “had charge of the construction of the building.” This contention is untenable. The defendant in its answer admitted that at the time of the accident it was engaged in erecting the building; that the plaintiff was in its employ on the third floor thereof, and that he fell therefrom and received personal injuries. One of the primary definitions of the word “erect” is “to raise, as, a building; to build, to construct.” ['Webster’s Dictionary.] So, it was admitted that the defendant was engaged in constructing the building, and all the evidence tended to prove that it was engaged in constructing the building as master, to whose orders and directions its employees doing the physical work yielded obedience, hence it “had charge of the construction” of the building within the letter and meaning of the ordinance.

II. That the defendant was guilty of a violation of the ordinance in regard to this floor on which the plaintiff was required to work in having it in the condition that it was at the time of the plaintiff’s injury is not disputed; and that the plaintiff did not assume the risk to him by reason of that condition, arising from the failure of the defendant to discharge the duty imposed upon it by the ordinance, is conceded in deference to a long line of decisions by the court. [Huhn v. Railroad, 92 Mo. 440; Soeder v. Railroad, 100 Mo. 673; O’Mellia v. Railroad, 115 Mo. 221; Francis v. Railroad, 127 Mo. 669; Bradley v. Railroad, 138 Mo. 302; Doyle v. Trust Co., 140 Mo. 1; Hamman v. Coal Co., 156 Mo. 232; Pauck v. Beef Co., 159 Mo. 467; Grattis v. Railroad, 153 Mo. 380; Connolly v. Printing Co., 166 Mo. 463; Minnier v. Railroad, 167 Mo. 112; Holmes v. Brandenbaugh, 172 Mo. 66; Haviland v. Railroad, 172 Mo. 112; Curtis v. McNair, 173 Mo. 279; Parks v. Railroad, 178 Mo. 108.]

But for the defendant, it is contended that, “admitting that the entire third floor had been denuded of its covering at the time in question, and that there was simply a network of girders and joists with here and there an occasional board left lying4 from girder to joist or joist to girder, over an area ninety by fifty feet, so that one attempting to walk across the joists or girders or the occasional board had on either side of him a yawning abyss fifty feet,” the plaintiff was guilty of such contributory negligence as warranted the court in taking the case from the jury.

It appears from the evidence that at the time of the accident the line of 'work in which the plaintiff was engaged was that of carpenters ’ assistant; that he was at work on the third floor in the condition in which it was, in obedience to the order of the defendant’s foreman, Mr. Spencer, by whom he was ordered “to get some twelve-inch flooring boards and pass them np to the carpenters, ’ ’ on the roof; that such boards were in the room in which he was at work, lying here and there across the joists and girders; that he got and passed up two or three of them, got another, and was in the act of crossing with it from the place where he picked it up to the skylight, where it was to be passed up to the carpenters on the roof, when the board upon which he stepped either broke or turned, and he fell.

If the plaintiff was guilty of any negligence in the matter, so far as the evidence shows, it was in undertaking to obey the order of his master under the circumstances. That, in the condition in which the floor was through the failure of his master to obey the ordinance, obedience to his order was attended with some danger, was manifest, and that such danger was known to the plaintiff is beyond question, but negligence on his part does not necessarily arise from such knowledge ; in order that it should, the danger in obeying the order must have been so glaring and imminent that a man of ordinary prudence would not have undertaken to obey it; and the question, whether the’ danger was of that character or not, about which reasonable men might differ, was one of fact, to be considered with all the other facts in the case by the jury in determining whether plaintiff had been guilty of negligence contributing to his injury. Whatever may be the rule elsewhere, this is the accepted doctrine, and has been the settled law in this State ever since the decision in Huhn v. Railroad, 92 Mo. 440, supra, as will be seen by reference to that and the other cases hereinbefore cited.

The court erred in giving the peremptory instruction and in overruling the motion to set aside the non-suit. The judgment of the circuit court thereon will, therefore, he reversed, and the cause remanded to that court, with directions to set aside the nonsuit and grant the plaintiff a new trial.

All concur.


source: Caselaw Access Project

author: GRAYES, J.

license: Public Domain

text:
    WILLIAM A. WILCOX et al. v. PHILLIPS et al., Appellants.
    Division One,
    November 21, 1906.
    1. TAXATION: Entry and Location: Assignment: Patent. An entry of location of land by the assignee of a military-bounty land-warrant, on the tract-book at the proper land office, and a record of a copy of that entry in the recorder’s office of the county where the land lies, gives to the locator or entryman the equitable title, and is 'sufficient to authorize the assessment of the land for taxes against the entryman, and service upon him in the tax suit will uphold a judgment for taxes against the land, and the purchaser at the tax sale takes the title, although the entryman may, after such location, have legally assigned the certificate of location to another and the United States on the authority of that assignment have issued a patent to the assignee, which, although issued long before the tax suit was brought, was not recorded in the county where the land lies until after the tax suit was brought, and the land sold.
    2. -: -: Failure to Record Patent. The patentee of land, to whom a patent was issued in 1860, who failed to have it recorded till 1902, can not complain that the land was in the meantime assessed for taxes against his' assignor, the entry-man whose entry was recorded in the county. And in the absence of actual notice of ownership by the patentee or his grantees, suit for taxes in such case should be brought against the entryman, as the record owner, although he may, before the patent was ever issued, have assigned his certificate of entry and location to the patentee and the patentee have sold the land by a recorded deed to plaintiff’s ancestor, and that ancestor at the time the suit was brought have been dead for many years; and if so brought, and the service is legal, judgment and sale will convey the title to the purchaser.

      3. -: Patent: Record: Innocent Purchaser. Within the meaning of the Missouri registry act a patent is not different from any other muniment of title, and like a deed should be filed and recorded, and if by failure to record the rights of innocent parties accrue, such rights must prevail, just as in cases where there is a failure to file a deed.
    Appeal from Sullivan Circuit Court. — Eon. Jno. P. Butler, Judge.
    Bevebsed and remanded.

      Wattenbarger <& Bingham, Calfee & Eubamks and Campbell é Ellison for appellants.
    (1) Section 9187, Revised Statutes 1899, provides as.follows: “Government lands entered or located on or prior to the first day of June, shall he taxable for that year, and for every year thereafter.” This statute has been on our books for many years and never until this decision, to our knowledge, has the right of a State to tax lands from the date of entry been questioned. The following cases seem to us to settle the question beyond cavil: Witherspoon v. Duncan, 4 Wall. 210; Railroad v. Price County, 133 U. S. 692; Carroll v. Stafford, 44 U. S. 441; Widdecombe v. Childers, 124 U. S. 404; Egbert v. Bond, 148 Mo. 23; Hadrick v. Beeler, 110 Mo. 91; Wilhite v. Barr, 67 Mo. 284; Callihan v. Davis, 901 Mo. 78; Johnson v. Fluetsch, 176 Mo. 470; Wirth v. Branson, 98 U. S. 118; Stark v. Starr, 73 U. S. 402. (2) At the time the suit for taxes was brought, the apparent record owner of the land in controversy was William H. Brownlee. The patent issued by the Government to this land in 1860 was not placed on record until 1902, almost two years after the land was sold for taxes. Neither was the assignment of the certificate of entry placed on record until that time. Brownlee, the only apparent and record owner of this land, was made a party to this suit and was personally served with summons. Appellants bought the land at the tax sale and received a title paramount to the holder of an unrecorded patent of which appellants had no notice, actual or constructive. We, therefore, stand on the doctrine laid down in Vance v. Corrigan, 78 Mo. 94; Allen v. Bay, 96 Mo. 542; Payne v. Lott, 901 Mo. 676; Lucas v. Land & Cattle Co., 186 Mo. 456; St. Joseph v., Forsee, 110 Mo. App. 127. ' The tax collector has a right to resort to the plat book on file in the recorder’s ' office to ascertain the ownership of lands. State ex rel. v. Sack, 79 Mo. 661; Watt v. Donnell, 80 Mo. 195; Cowell v. Gray, 85' Mo. 169'. The plat book being made admisssible in evidence means that it must be of some importance in determining the ownership of lands. Wilhite v. Barr, 67 Mo. 284. (3) The deeds offered in evidence by respondent from Montgomery to Martin, and from Martin to Bradbury, and from Bradbury to Wilcox were outside the chain of title and did not impart notice of title to any one. Tidings v. Fitcher, 82 Mo. 379; Becker v. Strother, 167 Mo. 306; Bank v. Bank, 171 Mo. 327; 16 Am. and Eng. Ency. Law (1 Ed.), 800.

      Wilson d> Clapp and A. W. Mullins for respondents.
    (1) The fee of land disposed of by the United States remains in the Government until the patent issues. Carmon v. Johnson, 20 Mo. 108; Le Beau v. Armitage, 47 Mo. 138; Sands v. Davis, 40 Mich. 14. (2) A patent is a better legal title than an'entry. Delassus v. Winn, 174 Mo. 636.- (3) The patent was recorded in the General Land Office. This was notice to the world, and was conclusive that the legal title vested in the patentee. B. S. U. S., sec. 458; Evitts v. Both, 61 Tex. 81; 20 A. & E. Enc. Law (1 Ed.), 530; David v.Bickabaugh, 32 Iowa 540; Webster v. Clear, 49 Ohio St. 392. (4) A judgment recovered in a suit begun and prosecuted against a dead person is void. Graves v. Evart, 99 Mo. > 13. (5) The heirs of Abbie D. Wilcox, not having been made defendants in the tax suit, the tax proceedings did not divest their interest, and they are entitled to recover in this action. Walcot v. Hand, 122 Mo. 621. (6) Brownlee was not the apparent owner of the land within the meaning of the statute; Abbie D. Wilcox was the apparent owner, and her heirs the real owners. Sec. 9303, R. S. 1889; Yance v. Corrigan, 78 Mo. 94; State ex rel. v.p Sack, 79 Mo. 661; Allen v. Ray, 96 Mo. 542. (7) The deeds of Montgomery, Martin and Mrs. Bradbury, being recorded, imparted notice to all persons of the contents thereof, and the defendants purchased with notice. Secs. 923, 924, R. S. 1899'. (8) United States patents may be recorded in the county where the land is situated. Recording them, however, is not compulsory and their recording does not impart notice as in the case of deeds. Secs. 923, 924, 9077, 9078, R. S. 1899. (9) The purchasers at the tax sale bought only the right, title and interest of Brownlee, who never was at any time the owner of the land; and a sheriff’s deed conveying his right, title and interest conveyed nothing in reality. Watt v. Donnell, 80 Mo. 195; Powell v. Greenstreet, 95 Mo. 13; Blevins v. Smith, 104 Mo. 583; Moore v. Woodruff, 146 Mo. 597; Wood v. Smith, 91 S. W. 85,
   GRAYES, J.

The facts in this case were elaborately and correctly stated in the opinion first filed, by Marshall, J., which statement, after careful examination, we adopt. The statement follows:

“This is an actionin ejectmentto recoverthe south half of the northwest quarter, and the northeast quarter of the southwest quarter of section 3, township 63, in Sullivan county. The ouster is laid as of the 15th of March, 1902.
“The answer admits the possession of the premises by the defendants, but denies all the other allegations in the petition. The action was originally instituted against the defendants Phillips and Reed. After-wards, on their own application, John M. and Arthur D. Campbell were made parties defendant, and filed a separate answer, in which they admitted that the defendants Phillips and Eeed were in possession at the commencement of the suit, deny all the other allegations of the petition, and then affirmatively plead that on the 19th of October, 1900, the land was sold by the sheriff, under a judgment for back taxes, in a suit against William H. Brownlee, and that the said defendants (Campbells) became the purchasers at said sheriff’s sale, and afterwards, on the 15th day of March, 1902, sold the land to the defendants Phillips and Reed, and that by virtue of their purchase at the sheriff’s sale they became owners of the land.
“The cause was tried on the 10th of April, 1902, by the court, a jury being waived, and judgment was rendered for the plaintiffs for possession, and for $20 damages, and $3 a month, rental value. After proper steps the defendants (Campbells) appealed.
“To sustain the issues on their behalf, plaintiffs proved that they are the heirs of Abbie D. Wilcox, who was the wife of William Lucas Wilcox. Abbie died October 26, 1884, and William died in June, 1889. The plaintiffs next introduced in evidence a patent to the land in controversy from the government of the United States, dated the 16th of June, 1860, which recites that:
“ ‘In pursuance of the act of Congress, approved March 3rd, 1855, entitled, “An act in addition to certain acts granting bounty lands to certain officers and soldiers, who have been engaged in the military service of the United States,” there has been deposited in the General Land Office, warrant number 31879, for one hundred and twenty acres, in favor of Charles Jones, private, Captain Alsbery’s company, Kentucky Militia, war of 1812, with evidence that the same has been duly located upon the northeast quarter of the southwest quarter, and lot numbered 1, of the northwest quarter of section 3, in township 63, of range 18, in the district of lands formerly subject to sale at Milan, now Boon-ville, Missouri, containing one hundred and twenty acres, according to the official plat of the survey of the said land returned to the General Land Office by the Surveyor General, the said warrant having been assigned by the said Charles Jones to William H. Brownlee, in whose favor the said tract has been located and the certificate of said location having been assigned by him to James Montgomery. Now Know Ye, that there is therefore granted by the United States unto the said James Montgomery as assignee as aforesaid and to his heirs, the tract of land above described — to have and to hold the said tract of land with the appurtenances thereof, unto the said James Montgomery as assignee as aforesaid and to his heirs and assigns forever.’
“This patent was recorded in the office of the recorder of the General Land Office, and was filed for record in the office of the recorder of deeds for Sullivan county on the 2nd of August, 1902.
“And plaintiff then showed a conveyance of the land from James Montgomery and wife to Leroy Martin, on the 18th day of May, 1864, which was recorded in Sullivan county on the 11th of March, 1866; and likewise a conveyance from Martin, a single person, to Hercillia G. Bradbury, on the 11th of June, 1878, recorded on the 13th of June, 1879; also a conveyance from said Bradbury to Abbie D. Wilcox, dated January 7th, 1879, recorded January 13th, 1879.
“The plaintiffs also offered evidence showing that they, or their ancestors, paid taxes on the land for the years 1882, 1883, 1885, 1886, 1887, 1888, 1889, 1891, 1892,1893 and 1894. They further introduced evidence tending to show that the land was never fenced, but is what is denominated ‘brush land,’ and that the defendants Phillips and Reed, since they entered into possession, fenced some of it, cleared a portion of it and put a part into cultivation and perhaps built a house upon it. This was all the evidence offered by the plaintiffs in chief.
“To sustain the issues on their behalf, the defendants introduced a certified copy of the tract-book of the Register of the Land Office at Boonville, Missouri, showing that on June 13th, 1857, William H. Brownlee entered the land, and that a copy of such entry was recorded in the recorder’s office of Sullivan county. The plaintiffs objected thereto upon the ground that the patent issued by the United States to James Montgomery, was superior to the entry of the land as shown by the certificate. The court overruled the objection and the plaintiffs excepted.
“Defendants next offered in evidence the files in the tax suit, which ran in the name of the treasurer and ex-officio collector of revenue, against James Montgomery, William H. Brownlee and Abbie D. Wilcox, and which was filed on the 5th of December, 1899, for the taxes for the years 1895, ,1896, 1897 and 1898; also the summons and return thereon, showing personal service on William H. Brownlee, on the 26th of February, 1900'; also the judgment roll from which it appeared that no service of any kind was ever had on the defendant James Montgomery, and that the service was by publication on Abbie D. Wilcox, who had, as previously stated, died on October 26th, 1884; the order of publication being based upon the allegation that she was a non-resident of the State.
‘ ‘ The defendants also introduced the deposition of William H. Brownlee, a man seventy years of age, who testified that he entered land in Sullivan county in 1857, but that he could not state the section, township or range of the land entered by him. He also stated that he had received patents for the land entered by him. He likewise stated that he had no recollection of the sheriff serving the summons in the tax suit uponhim, but that he did not doubt the truth of the sheriff’s return.
“The defendants then read in evidence the sheriff’s deed in the back tax suit, purporting to convey the interest of James Montgomery, William H. Brownlee > and Abbie D. Wilcox, to the defendants John M. and Arthur D. Campbell — the deed being dated October 20, 1900.
“The plaintiffs objected to the deed upon various grounds, among them, that the judgment roll and the files in the back tax suit showed no service upon defendant James Montgomery, and that the service by publication as to Abbie Wilcox was void, because she had died in 1884, some fifteen years before the suit was instituted ; and further on the ground that the certificate of location of the land conveyed no title to Brownlee, but that the title remained in the United States, until the patent was issued, and that as that patent was issued to Montgomery, as assignee of Brownlee, who was the assignee of Jones, the soldier who was entitled to make the entry, the title never passed out of the G-overnment until the patent was issued. The court overruled the objection and the plaintiffs excepted.
“The defendants also introduced evidence that Reed and Phillips had partially fenced, cleared and cultivated the land, but had built no buildings thereon. The defendants then rested.
“In rebuttal the plaintiffs introduced evidence showing that the tract book of the Register of Land Office at Boonville, Missouri, showed that on the 18th of April, 1857, William H. Brownlee entered eighty acres, being the east half of the southeast quarter of section 19, township 63, range 21, and on the same day entered 80' acres, being the west half of the southwest quarter of section 20, township 63, range 21, and on the 27th of August, 1857, he entered one hundred and twenty acres, being the west half of the southeast quarter, and the southeast quarter of the southwest quarter, of section 11, township 64, range 20; that on the 13th of June, 1857, he entered seventy-eight and eighteen hundredths acres, being lot two of the northwest quarter of section 5, township 64, range 21, and on the same day he entered one hundred and nine and twenty-one hundredths acres, being the west half of lot two of the southeast quarter, and the east half of lots one and two of the northwest quarter of section 6, township 64, range 21, and also on the same day he entered thirty-eight and seventy-two one-hundredths acres, being the east half of lot two of the northeast quarter of section 6, township 64, range 21.
“The defendants requested the court to declare the law to be, that under the evidence the plaintiffs were not entitled to recover, and also that if the tract-book showed that Brownlee entered the land in question and that Brownlee was served with process in the tax suit, the plaintiffs could not recover. The court refused so to instruct and the defendants excepted.
“At the request of the plaintiffs the court declared the law to be that the patent from the United States to James Montgomery and the conveyances from Montgomery to others and from them to Abbie D. Wilcox, conveyed the legal title to said Wilcox, and that if she died in the year 1884 and the plaintiffs are her heirs, then the plaintiffs were entitled to recover, unless the judgment in the tax suit conveyed the land to the defendants. The court further instructed that the purchasers at the back tax sale acquired only the .title of the defendants to that action against whom a valid judgment was rendered, and if Abbie D. Wilcox was dead when the judgment against her was rendered that judgment was a nullity as to her; and that the evidence showed that at the date of the judgment James Montgomery had no title to the land.
“The court further declared the law to be that-the title to the land remained in the United States until the patent was issued to Montgomery, and that the patent was better legal evidence than the prior entry or location of the land warrant.
“The conrt further instructed that no title to the land ever vested in Brownlee by whom the land-warrant was located, but that the title passed from the Government of the United States to Montgomery and that Brownlee was never the owner of the land, and was not the apparent owner of record.
“The court then further instructed that under all the evidence in the case the finding and judgment should be for the plaintiffs.”

I.

1. From this statement it appears that the entry-man, William H. Brownlee, is, in fact, the common source of title, that is to say, he entered and located the land, and it is through this entry and location, both sides in this controversy claim title — defendants through a tax proceeding, wherein personal service was had upon the entryman, Brownlee, and the plaintiffs through a patent (recorded after tax judgment and sale), which patent is based upon the assignment of Brownlee, the entryman, and but for which assignment, the patent would not have been issued by the General Government. The patent .under which plaintiffs claim evidences the fact that the rights granted are rights coming from and through William H. Brownlee. The entry of Brownlee was duly of record in Sullivan county, and we are confronted with the question as to what is the force and effect of a recorded entry, in this county, as against an unrecorded patent to an assignee of the entryman, in these tax .proceedings. An answer to that question will determine this controversy.

That an entryman, by force of his entry, acquires an equitable title seems to be well settled in this State. In the ease of Johnson v. Fluetsch, 176 Mo. 452, covering the assignment of a warrant similar to the one involved in tlxe case at bar, Gantt, J., among other things, said: •

“When John F. Stephan located his warrant and received his certificate of entry and purchase, he was required by law to deliver up his warrant to the register of the land office at St. Louis, and this the evidence shows he did. He could not control the officers of the land office, neither is he responsible for their neglect of duty in failing to report his location to the General Land Office at Washington City. The equitable title of the United States passed to the defendant’s remote grantor, Stephan, and the Government had no right to patent it to plaintiff. The right to a patent once vested as respects the Government is equivalent to a patent. [Wickersham v. Woodbeck, 57 Mo. 59; Wirth v. Branson, 98 U. S. 118; Stark v. Starrs, 73 U. S. 402.]
“While the State has no right to control the primary disposition of the public lands belonging to the United States, yet when the title passes from the Government, the State courts have jurisdiction to determine the controversy between the adverse claimants thereto. [Magwire v. Tyler, 45 Mo. 406; Hedrick v. Beeler, 110 Mo. 91; Carman v. Johnson, 20 Mo. 108.] ”

In the Wickersham case, above cited by Judge Gantt, Napton, J., says: “The register’s and receiver’s receipt is evidence that the State has passed the title, although the formality of a patent is wanting. The equitable title is at least passed, for the purchase money is paid, and the State cannot transfer her title, which is a mere naked legal title, to another. ’ ’

Justice Bradley, in Wirth v. Branson, 98 U. S. 118, says:

“We are satisfied that the second instruction, at ' least, correctly expressed the law of the case, and renders the production of the original patent to Egerton entirely immaterial. The land in question was shown to have been located in his favor in due form, under a regular military land warrant, and no attempt was made to show that this location was ever vacated or set aside. While this location was in force, no other could lawfully be made on the same land. A subsequent location, though followed by a patent, would be void. Everything was done which was required to be done to entitle Egerton to a patent to the land. Being for military bounty, no price was payable therefor. The land became segregated from the public domain, and subject to private ownership, and all the incidents and liabilities thereof.
“The rule is well settled, by a long course of .decisions, that when public lands have been surveyed and placed in the market or otherwise opened to- private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract is to be regarded as the equitable owner thereof, and the land is no longer open to location. The public faith has become pledged to him, and any subsequent grant of the same land to another party is void, unless the first location or entry be vacated and set aside-. This was laid down as a principle in the case of Lytle v. Arkansas, 9 How. 314, and has ever since been adhered to. [See Stark v. Starrs, 6 Wall. (73 U. S.) 402, 18 L. Ed. 925.] Subsequent cases which have seemed to be in conflict with these have been distinguished from them by the fact that something remained to be done by the claimant to entitle him to a patent'; such as the payment of the price, the payment of the fees of surveying, or the like. The proper distinctions on the subject are SO' fully stated in the cases of Stark v. Starrs (supra); Frisbie v. Whitney, 9 Wall. (76 U. S.) 187, 19 L. Ed. 668; Yosemite Valley case, 15 Wall. (82 U. S.) 77, 21 L. Ed. 82; Railroad v. McShane, 22 Wall. (89 U. S.) 444, 22 L. Ed. 747; and Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424, that it would be supererogation to go over the subject again.”

It will be noticed that the entry to the land in dispute was made undermilitary-bounty land-warrant No. 31879, in favor of Charles Jones, for 120 acres of land. This court in the Johnson case, supra, held these warrants assignable, even prior to the Federal Act of 1852. Under these warrants, when the land was located either by the person in whose favor the warrant was issued, or his assignee, it became the duty of the Government to issue a patent. No price was to be paid. These were bounty warrants, issued in recognition of service to the Government, and the party having the warrant had the right to assign it, and to the Government remained the one duty of issuing a patent. In such cases where the land was located, whether by the original holder of the warrant or his assignee, the General Government held a mere naked legal title and no more, a title which in good conscience and law ought to be vested in the party locating, whether such locator be the original holder of the warrant or his assignee. By act of Congress, the General Government, in issuing the warrant in this case, equitably divested itself of the title to 120 acres of the public domain with the right in the holder of the warrant, or his assignee, to go and locate the land. When this was done, as in this case, the mere naked legal title remained in the Government, because all conditions had been complied with, and it only remained for the patent to be issued by the Government. When the location was made by Brownlee, the presumption might be indulged that the patent would follow to him, although he legally had a right to assign and thus have the patent issued to his assignee. This entry in his name was on the records in Sullivan county and the effect of it was to divest the General Government of all rights, except a mere naked legal title, but yet leaving the duty to convey that naked legal title to Brownlee, unless he, by assignment, directed otherwise. This case differs from that class of cases where, after entry, something remains to be done by the entryman. Here the entryman became entitled absolutely to a patent when he located upon Government lands, theretofore untaken, and the case is readily distinguishable in a way from eases where certain conditions are to be performed after the entry, as in homestead cases.

2. Further, along the line as to what force should be given to the record of entry, in such cases, and in some even less strong than this, it is generally recognized that the mere entry or location of the land authorizes the State to tax the same, and to that end the entryman becomes the owner for that purpose. This, even in cases where there remain conditions to be performed after entry and before issuance of patent.

In this case there being no conditions after entry, there was and is a stronger reason for giving the State the right to tax. [Railroad v. Price County, 133 U. S. 496; Carroll v. Safford, Treas., 3 How. 441; Witherspoon v. Duncan, 71 U. S. 218; Widdicombe v. Childers, 124 U. S. 404.]

Onr own statute contemplates the assessment of these lands in the name of the entryman. Section 9187, Revised Statutes 1899, says: “Government lands entered or located on or prior to the first day of June shall be taxable for that year and every year thereafter.” Notice the language — It does not say when patent is issued and placed on record, because this would .. defeat the State in the collection of its taxes. Parties entitled to patents, to defeat taxes, might not apply for them and if they did, might hold them from record in the county. But what the statute does say, is that these lands shall be subject to taxation after entry and location, and in effect says such entryman or locator is the owner for the purpose of "a valid tax judgment.

Our own eases have consistently recognized this doctrine. [Payne v. Lott, 90 Mo. 680; Nolan v. Taylor, 131 Mo. 224.]

Again, our statute, section 3054, provides: “An action for the recovery of the possession of land may also be maintained against any person not having a better title thereto, in all cases where the plaintiff claims possession thereof under or by virtue of: First, an entry or bounty land-warrant location with the register and receiver of any land office in the United States, or with the commissioner of the General Land Office thereof. . . .”

And further, our court has held that the title of an entryman is sufficient upon which to maintain an action in ejectment. [Callahan v. Davis, 90 Mo. 78; Wilhite v. Barr, 67 Mo. 284; Egbert v. Bond, 148 Mo. 23; Hedrick v. Beeler, 110 Mo. 91; Nolan v. Taylor, 131 Mo. 224.]

We are thus forced to the conclusion that the entryman not only had such apparent title as would authorize ejectment in the absence of better title, but further, such -a title as would make such entryman the owner of the land within the meaning of our revenue acts.

II.

If Brownlee was the common source of title and if the plaintiffs, who claim through Montgomery, the assignee of Brownlee, failed to record their patent, in time to notify the collector and public that they were the legal owners of the land, then they have no right to complain here. As owners of the land, they had the twofold duty, first, of paying their taxes, and, secondly, of at least notifying the world that they had acquired the title of Brownlee. This they did not do until after judgment and sale. A patent issued in I860' is recorded in 1902, stating to the public for the first time, so far as this record shows, that plaintiffs claimed title through the assigned right of William H. Brownlee, and they had to claim through this right or not at all.

It was aptly said in Nolan v. Taylor, 131 Mo. l. c. 228, by Macfarlane, J.:

“The law requires the owner to be made a party in order that he may have opportunity to defend against the charge upon the land, or to avoid a sale by payment of the taxes.
“At the same time, it was not intended that the owner should escape taxation by withholding the evidence of his title from record. Hence, it is held that the owner, within the intent and meaning of the law, and in the absence of notice to the contrary, shall be taken to be the person who appears, from the records of the county, to be the owner. [Payne v. Lott, 90 Mo. 680, and cases cited.]
“For the purpose of ascertaining the ownership of land for the purposes of taxation, and for charging it with the taxes, the officers are not confined to what is disclosed by the registry of deeds, but may have resort to the duly certified copy of entries made on the books of any register of any United States land office on file in the county. The person who appears from this copy to have entered the land will be taken as the true owner unless other records of the county show the title to be in some other person.
“In the case above cited it was expressly held that a judgment for taxes, under the revenue law, against one who appeared, from a copy of such entries, to be the true owner, and a sale thereunder, was sufficient to carry the title as against one holding an unrecorded deed from such apparent owner.”

In the case at bar the revenue officer had the right to rely upon the fact that the records showed this land, by entry, had passed to Brownlee and had not. passed from him. The public had a right so to rely, after judgment and at sale, there being no evidence of a transfer from Brownlee at the time of sale. In such case the filing of the patent after sale would be in violation of the spirit of our registry act, if it were permitted to defeat the title acquired by the sale.

This conclusion makes it unnecessary to take up other minor questions.

We, therefore, say that for the purpose of taxation the entryman, Brownlee, was the owner of the land; that plaintiffs could have averted this controversy by the payment of their taxes, or if not desirous of doing that, by simply recording their evidence of an assigned title from Brownlee in due time; that there is nothing in this record to bring home to defendants knowledge of this assigned title prior to date of sale, although it could have been shown to them by the simple act of recording a patent; that within the meaning of our registry act, a patent is not different from any other muniment of title, and like a deed, must be filed and recorded ; that if by a failure to so file and record, rights of innocent parties accrue, such rights must prevail, the same as in cases where there is a-failure to file a deed; that in this case there is shown no sufficient adverse possession in plaintiffs to have given title as against Brownlee, the entryman; that plaintiffs must stand or fall upon their record title as shown by the evidence.

Such being our views, it follows that the case should be reversed and the cause remanded to the circuit court, to be proceeded with therein in accordance with this opinion.

All concur.


author: LAMM, J.

text:
    DONNELL, Appellant, v. WRIGHT et al.
    Division One,
    November 21, 1906.
    1. APPEALS: Effect of Reversal: Nonsuit. Where the judgment in the trial court was for plaintiff and is reversed on defendant’s appeal with nothing more, the reversal is to he treated as a nonsuit, and the circuit court is not repossessed of jurisdiction to go on in the same case, but plaintiff may sue again within a year. But it is not held, because not an issue, that an opinion of the appellate court holding that plaintiff has no case at all on the facts and law, followed by a reversal only, leaves the identical issue on the identical facts open for further adjudication in a new suit.

      2. -: -: Not Remanded: Error How Corrected. Plaintiff, losing in the trial court, in ejectment, appealed, and the judgment was reversed, the opinion inadvertently failing to add that the cause was remanded, and the mandate followed the opinion. No motion was made to modify opinion or judgment or recall and amend mandate, nor was any action taken for over three years when plaintiff sued out of the trial court a scire facias to revive the proceedings. Held, that it was plaintiff’s duty to take timely action in the appellate court to have the judgment and mandate corrected, and the scire facias proceedings to revive cannot be upheld, for the reason that on a reversal of the judgment the trial court lost jurisdiction to try the case; that is, jurisdiction which had by the appeal vested in the appellate court was not by the mere reversal handed back to the trial court.
    Appeal from Jackson Circuit Court.— Hon. J. H. Slover, Judg
    Affirmed.

      B. B. Garnett for appellant.
    (1) The simple reversal of a judgment by a court of review is not a final judgment and in law has the effect of remanding the cause to the trial court to be dealt with according to the opinion of the reviewing court. No special direction for remanding the cause is necessary, as the opinion of the Supreme Court is to be consulted. 1 Freeman on Judgments (4 Ed.), sec. 32; 2 Freeman on Judgments (4 Ed.), sec. 481; Falkner v. Hendy, 107 Cal. 54; Steams v. Aguire, 7 Cal. 448; Woods v. Jones, 56 Ga. 520 ; Walker v. Dougherty, 14 Ga. 653; Merrill v. Merrill, 65 Me. 81; Jordan v. Humphrey, 32 Minn. 522; West v. Brashear, 14 Pet. (U. S.) 51; Heidt v. Miner, 113 Cal. 385; Ins. Co. v. Natl. Loan Co., 51 Minn. 199; Treadway v. Johnson, 39 Mo. App. 176. (2) The reversal of a judgment against a plaintiff restores him to his place in the court below which he had before it was pronounced, and it is the duty of the trial court to do him justice in accordance with the decision of the appellate court. R. S. 1899, sec. 869'; Colburn v. .Yantis, 176 Mo. 686; In a road, case, 135 Pa. St. 176; Judson v. Cray, 17 How. Pr. 292; Becker v. Becker, 50 Iowa 139', 45 Iowa 239'; Woodruff v. Bacon, 35 Conn. 97; Crispen v. Hannovan, 86 Mo. 160:

      G. O. Tichenor for respondents.
    (1) The question here is whether a judgment of this court simply reversing a judgment is the same as a judgment reversing and remanding. Is it true, as claimed, that a judgment of reversal necessarily remands the case ? Isa mandate the same in effect without the words which were erased as it is with them? Are these words omitted simply surplusage? The whole case turns upon the effect' of the judgment in this court — for the mandate cannot be broader than the judgment. (2) There can be no question but that up to this date, under the practice in this State, there is a wide difference between a judgment of reversal simply, and a judgment reversing and remanding. These matters of practice may be termed arbitrary, but they are a part of our law, and an important part, too. It would be strange if decisions of other States could not be found upon questions of practice differing from ours in nearly everything, and this court could not conform to them if it tried. Secs. 866, 869, R. S. 1899. (3) The opinion is the act of one judge, although he may speak for the court; the judgment of the court is the act of the court in pursuance of that opinion — “the determination of the cause in appeal or error.” The determination of the cause on the appeal in this case was that the judgment be simply reversed. The argument of counsel might be plausible if the judgment below had been affirmed — for there the judgment of the court below would not be harmed by the determination of the appellate court. Meyer v. Campbell, 12 Mo. 609; Durant v.- Essex Co., 101 U. S. 556.' When an appeal is taken, the lower court loses jurisdiction of the case. Burgess v. O’Donoghoe, 90 Mo. 299. It regains jurisdiction if the judgment of the appellate court, sends the case hack again. (4) Counsel admits that he must seek authority from other States. We are content to rely upon the many decisions of this court on the subject. Musser.v. Hardwood, 23 Mo. App. 499; Hurk v. Erskine, 50 Mo. 119; Zurfluh v. Railroad, 46 Mo: App.. 643; Heizer v. Mfg. Co., 110 Mo. 605; Carroll v. Railroad, 107 Mo. 664; Rutledge v. Railroad, 123 Mo. 140. (5) A judgment when reversed simply has no vitality for any purpose. Atkinson v.'Dixon, 96 M'o, 587; Young v. Thrasher, 123 Mo. 312. A reversal without remanding is in effect a nonsuit. Lumber Co. v. Lumber Co., 72 Mo. App. 258; sec. 4285, R. S. 1899. An appellate court has power to change its mandate during the term at which the order was entered. Bank v. Bank, 155 111. 250. If the leaving out of the remanding part of the judgment can be termed an irregularity, then it may be this court could have added this to the judgment within three years from, its rendition under section 795, R. S. 1899.
   LAMM, J.

On the theory there was an ejectment suit pending in the circuit court of Jackson county wherein Donnell was plaintiff and William P. Wright, Emaline Stacks and Robert Taubman were defendants, Donnell, on March 21, 1903, suggested the death of Taubman and sued out a writ of scire facias to revive the proceedings against the executors of his will, his widow and heirs. Service w!as had of, and rectum made to, that writ.

On issue joined, as hereinafter set forth, judgment went against plaintiff and he appeals.

In the determination of the question presented to us, a resume of the history of the controversy, as well as of the facts in judgment, will not.be amiss. Thus:

The real estate in controversy is a part of a lot in block 31 in McGee’s addition to the City of Kansas. In 1882 said parcel of ground (said to be a valuable one) was bid off at a tax sale for delinquent taxes, and Donnell, for a sum said to be trifling, received a tax deed upon which he bases title.

■It seems the lot belonged to Taubman who either then had, or shortly thereafter, contracted to sell it to one Lynch. Pending this sale, and for the purpose of removing the cloud of Donnell’s tax deed, Lynch lodged a bill in equity in the Jackson Circuit Court to clear up the title — Taubman causing said suit to be instituted and being a party to its prosecution. The bill in the Lynch case challenged the validity of Donnell’s tax deed on six grounds, the sixth ground being as follows: “That at such sale, on the 8th day of December, 1882, the bidders in attendance thereat confederated with each other not to bid against each other for the property there offered for sale, and the tract or lot aforesaid was bid off by defendant in pursuance and at the time of such understanding, and acting thereon.” [See Donnell v. Wright, 147 Mo. l. c. 645.] It seems, however, though issue was joined on the question of fraud, that issue was ignored or abandoned in the equity suit and the case proceeded to judgment below, and was considered here on Donnell’s appeal on only five grounds (see Lynch v. Donnell, 104 Mo. l. c. 521-2); and his tax deed, adjudged void below, was held valid and the judgment reversed and the bill dismissed here. [104 Mo. l. c. 530.] Such was the end of Lynch v. Donnell.

Thereat Donnell (turning) himself took the initiative by bringing the present suit in ejectment in January, 1895, against Taubman and his tenants. Thereupon defendants, by way of defense, revived the old charge of fraud in the concoction of Donnell’s deed, abandoned in the Lynch case, and sought to avoid Donnell’s title because of a fraudulent combination between him and other bidders at the tax sale. This defense was successful below, and judgment went for defendants. From this judgment, Donnell appealed and the case went off in this court on the theory of res adjudicate (see Donnell v. Wright, 147 Mo. l. c. 646, et seq.), Donnell contending the issue of fraud, though not tried out, was within the pleadings and issues in Lynch v. Donnell, and, hence, was set at rest by that ease; defendants contending contra. This court sustained Donnell’s view, but reversed the case without remanding' —the exemplification of our judgment and opinion filed below showing the following clause erased from the usual form of mandate: “That the said cause be remanded for further proceedings to be had in conformity with the opinion of the court herein delivered.”

It is not shown that any motion was filed in this court to recall said transcript of our opinion and judgment or modify our judgment and send down a mandate to proceed, nor was any attempt made in this court by nunc pro tunc entry to have the judgment show that the cause was remanded for further proceedings, nor was the attention of this court called in any way or at any time to the anomalous condition of its record, whereby a judgment in favor of defendants was reversed, but the cause was left suspended (so to speak) in mid air, by our failure to make an order reversing the judgment, granting a new trial and remanding the cause.

The judgment of this court in Donnell v. Wright was rendered on February 15, 1899, and thereafter, after allowing the matter to sleep for over three years, Donnell suggested the death of Taubman and sued out of the circuit court of Jackson county a scire facias against Taubman’s heirs and the executors of his last will to revive the proceedings.

An order was made that said heirs and representatives appear and show cause. They did appear and filed a return or pleading to the writ of scire facias wherein (for cause) it was alleged: First, that the suit was not pending in that court, judgment having been rendered therein from which plaintiff appealed; the judgment was simply reversed and the cause was not remanded. Second, that the judgment was reversed by the Supreme Court December 23, 1898, and no action had been taken in any way since said date; that the other defendants were simply tenants and have long since removed from the premises and gone away; that under such circumstances even if the plaintiff had the right to revive, which he has not, he has lost it by his laches. Third, that the defendant, Robert Taubman, died December 31, 1899 ; that .his will was duly probated in January, 1900; and the notice to creditors as required by law was published, beginning in said month; and that the time for bringing suit against said estate is long since expired.

To the foregoing return, plaintiff filed a plea admitting the judgment was reversed by this court, but denied the cause was not remanded and alleged that, in law and in fact, it was remanded and is now properly and legally pending in the circuit court of Jackson county. Plaintiff further alleged that the death of Robert Taubman was suggested at the January term, 1903, of said court and a scire facias sued out to revive this suit, and plaintiff denied that he is chargeable with any laches in the premises. Denying, furthermore, all allegations in defendants’ return except those admitted as aforesaid, plaintiff alleged that the return of defendants was insufficient and, therefore, moved the same to be quashed and set aside and that the conditional order of revivor heretofore made be adjudged unconditional, absolute and final.

On issue thus joined a hearing was had, and, for the purpose of that hearing, admissions were made showing a boneless contention of fact — the facts being conceded to all intents and purposes as hereinbefore set forth. The trial court, having briefly found them as aforesaid, adjudged as follows: “Therefore the court doth hold that plaintiff was not entitled to haye his suit as revived, and doth find and adjudge that the same he not revived, and the plaintiff take nothing by his suit.”

Defendants’ learned attorney does not undertake to sustain the action of the lower court on the ground of laches or on the theory that Taubman’s executors had published notice of their letters of administration for such time that the Statute of Limitations had run in favor of the estate against all claims. He seeks to sustain the lower court on the theory the cause was not ■pending in that court at the time the writ of scire facias was sued out, and was. not so pending because this court did not award a new trial and remand the cause for further proceedings.'

Plaintiff’s learned attorney insists that the reversal of the judgment in favor of defendants, ipso facto, as a matter of law, without more, itself operated as a remanding of the cause, a procedendo under an award of a new trial, and that the circuit court thereby became possessed of jurisdiction to go on and try the case anew.

The foregoing contentions of counsel call for an adjudication of the effect and office of a formal award of a new trial without a remanding of a cause for further proceedings in the lower court, and the single question presented may be stated in this way: if a circuit court loses jurisdiction of a case, on its merits, by an appeal from its judgment, does it regain jurisdiction of the case on its merits by a mere reversal here without an award of a new trial and a remanding?

The exact point, to-wit, the effect of a reversal of defendant’s judgment on appeal by plaintiff without remanding, seems new; while the kindred question, viz., the question of a reversal without remanding of plaintiff’s judgment on defendant’s appeal, is not néw.

The right of appeal, being a creature of statute, the duties and powers of appellate courts on appeals in Missouri are referable to the same source. Looking thereto, we find the duty of such court in eases on appeal is to “examine the record” and, first, “award a new trial, ’ ’ or, second, 1 ‘ reverse, ’ ’ or, third, ‘ ‘ affirm. the judgment or decision of the circuit court,” or, fourth, “give such judgment as such court ought to have given,” as to this court “shall seem agreeable to law.” [R. S. 1899, sec. 866; Laws 1903, p. 105.]

Each one of these four duties is a separate and distinct step, though it is obvious that award of a new trial and a reversal go together as twin steps to be taken on the same appeal. If, for instance, a new trial is awarded, the judgment below is also reversed in order that a new trial be had; but a reversal may be an independent step, complete in itself and not to be followed by a new trial. So, too, it is apparent that in awarding a new trial it may be on the whole case or on a certain issue, or a new trial may be awarded with directions to eliminate pointed-out errors, or to try the case on a certain theory of the law, or with the exclusion or inclusion of certain evidence — the award adjusting itself to meet the ends of justice — but it will be observed that in whatever form it be made, whether with or without directions, yet the statute contemplates it should be made and- also that the judgment, standing in the way of a new trial, should be brushed aside by reversal in order that one be had.

Our statutes throw a further side-light of some value on the controversy, and that light is this: If the judgment below be for plaintiff and be reversed on defendant’s appeal with no final judgment entered here and with no award of a new trial — i. e., simply reversed and nothing more — such character of reversal is treated as a nonsuit, and the circuit court in such instance is not repossessed of jurisdiction to go on in the same case, but plaintiff may sue again within a year. [R.. S. 1899, sec. 4285; and see tit. “Damages; Limitation of Action:” Laws 1905, pp. 137-8.]

Where the appellate court enters, or directs an entry, of a judgment which disposes of a case, the result is more than a nonsuit (Young v. Thrasher, 123 Mo. l. c. 312); but it has been held that the reversal of a judgment in favor of plaintiff without more, i. e., without the award of a new trial and a remanding for that purpose and without a final judgment in the appellate court, is tantamount to a nonsuit. [Stevens Lumber Co. v. Kansas City Lumber Co., 72 Mo. App. 248.]

In leaving this view of the matter, it should be said (to guard against misunderstanding) that the question is not here, and, therefore, we do not decide, that an opinion of this court holding plaintiff has no case at all on the facts and the law, which opinion is followed by a judgment of reversal only, leaves the identical issue on the. identical facts open to re-agitation in a new suit— it being meet to dispose of that question only when reached as a live matter in a live case, and not obiter, or by the by.

If there be no final judgment entered in the appellate court, in case of a mere reversal (without more) of a judgment in favor of plaintiff, and yet, if the circuit court is- not repossessed of jurisdiction to go on anew, but plaintiff is held to suffer a nonsuit, it cannot be because the logic of the situation did not point to a continuation of the same ease in the court below; for the judgment may have been reversed, not because plaintiff had no case on the facts and law, but because the minds of jurymen were littered up with irrelevant and prejudicial matter, or because the jury had been misled by false lights in the way of bad instructions. The reason plaintiff may not proceed in such a case must in the very nature of things, we think, be referred to the fact, and the fact alone, that jurisdiction, having been lodged in the appellate court by appeal, was not handed back to the, lower court by that court, and therefore the case had reached the end of its row.

Take a case: A sues B and recovers, but his judgment was the product of erroneous instructions or improper evidence commingling with proper evidence. On that account, the judgment is reversed here on appeal. In such case the clear duty of this court, consistent with the inherent common sense of the thing, was to award a new trial and remand for further proceedings. But this court inadvertently neglected to do so — reversing only, without remanding. In the supposed case there was no reason under the sun the case should not have been remanded, as well as reversed, so that it might have been followed in subsequent proceedings below to a finality. Take another case-: C sues D, and D has judgment against C.' 0 appeals and secures a reversal of the judgment against him without remanding. In that case there was no reason under the sun why the case should not have been remanded so the circuit court could proceed with a new trial to a finality. But the entry was not made. Now, while in other supposable cases, the reversal of a judgment in favor of a plaintiff might stand on a footing to itself — a footing entirely distinct in principle from the reversal of a judgment in favor of a defendant — yet in the two hypothetical cases of A v. B and O v. D, we fail to' see why they do not stand on the same footing; and if the court may not proceed below to a new trial and judgment in A v. B because jurisdiction was not handed back, by the same token the court below should not proceed in the case of C v. D unless jurisdiction was handed back by this court.

Let us approach the case from another standpoint. At common law, where a case came up on a writ of error, it was the custom to hand back jurisdiction,' if at all, by an entry and a mandate called a procedendo, or a venire facia,s de novo, or a remittitur of record. Now, from the institution of this court down to the present hour, for eighty-five years,' the same end has been attained by awarding anew trial and. reversing and remanding the ease where defendant’s judgment was not allowed to stand. Thus: in Edwards v. McKee, 1 Mo. 86 (123), decided here at the October term, 1821, Edwards and another sued McKee and the jury found for defendant; thereupon the plaintiffs appealed and the case was sent below for a new trial on the following entry: “Let the cause be remanded to the circuit court for a new trial of the issue made on the first count in the declaration, not inconsistent with this opinion. ’ ’ Prom that case until Matlock v. Railroad, 198 Mo. 495, decided here June 19, 1906, wherein a judgment in favor of defendant was reversed and the cause was remanded, there has been deemed a. necessity for a uniform use. of appropriate phraseology which (in some plain form) grants a new trial and reverses and remands the cause before the trial court may go on.

We are now asked to hold that, in the absence of entry of such judgment here, with a formal mandate remanding the cause, the trial judge may (or must) read our opinion and judgment entry; and if he conclude, on the reasoning of the opinion, the cause should have been remanded by this court, or, to put it another way, that it was the clear duty and intention of this court to remand the cause but by slip it. failed to do •so, then the trial court thereby became possessed of jurisdiction to proceed de novo. If this be the law, then to the perplexing troubles now awaiting on a nisi prim judge there is added a new train of vexations hitherto beyond the ken of his philosophy — vexations which, putting the boot on the wrong foot, lay upon him the duty of correcting (by avoiding the effect of) our errors, as we do his. Hitherto, while a court nisi has been charged with the duty of reading our opinion into our mandate, where the cause is reversed and remanded to be tried in accordance with such opinion, yet he has been relieved from any duty of laboriously ascertaining by induction or deduction whether or not the canse has been sent below for further proceedings; for that fact has been set forth in our judgments and mandates in unmistakable terms so that one who runs may read.

Should we unsettle the practice and now hold that a cause is reversed and remanded, not because our judgment and mandate say so, but because they should have said so, and by such holding take a step to one side of the beaten path? We think not. Common observance is not to be departed from — certainly not without compelling cause. Custom, says Coke, is second law. [Brown’s Case, 4 Coke 21.] And again: Custom is the best expounder of the law. [2 Inst. 18.] And again: Things which are done contrary to the custom and usage of our ancestors neither please nor appear right. [The case of Corporations, 4 Coke 78.] And again: The beaten path is the safest — via trita est tutissima. [The case of the Isle of Ely, 10 Coke 142.] So, too, the usage of a court becomes somewhat the law of the court and the fact that the profession for nearly a century have proceeded on the theory that a circuit court loses jurisdiction by an appeal and that jurisdiction is not handed back to that court except by some appropriate entry remanding the cause for further proceedings, is very good evidence (at least, in the absence of better) of what the law is. [Venable v. Railroad, 112 Mo. l. c. 125.]

That the order of this court, under its constitutional power, is potent to confer jurisdiction upon the circuit court, where that court has once lost it, is shown and accentuated in cases cited in State ex rel. v. Gibson, 187 Mo. l. c. 550, et seq.

We are not willing to be fettered to phrases, as such, and thus miss justice. But where certain forms of phraseology in the judgments and mandates of appellate courts have come down to us from antiquity unifoi'mly moulded and employed in a certain way to evidence a certain intent, they become impressed with sanctity and significance, and, hence, ought not to be irreverently and lightly cast aside — the duty of courts being to attain reasonable certainty and to' so adhere to fixed (even if arbitrary) rules, that litigants may know where the beaten (and safe) path lies. Thus, for example, in State v. Meyers, 99 Mo. 107, and State v. Coleman, 186 Mo. 151, it was held that though the pre- • amble of an indictment showed the presentment made upon the oaths of the grand jurors, and though the preamble of an information showed the information made under, the official oath of a prosecuting attorney, yet, in a given instance, such indictment and information to be valid must conclude with an ancient formula.

It is argued in effect by counsel of appellant that because (or conceding) this court committed error in not awarding a new trial in form and remanding the cause, yet we should ignore such error and, in a roundabout way, now proceed to judgment precisely as if we had done what we ought to have done, to-wit, awarded a new trial and remanded the cause. Which argument proceeds upon the soothing hypothesis that we sit for the correction of errors in lotver courts only — that we may not correct our own in an orderly way, but blink them and (broadening our phylacteries) próceed blandly as if we could make, or had made, none: Infallibility is a new and unexpected honor to confer upon any court — an honor that should exist in fact by approximation, if at all, and not be taken on by assumption merely. To say that we proceed in the correction of errors nisi, upon the theory we commit none ourselves, tickles the judicial fancy, but is quite untrue. To the contrary, this court recognizes its fallibility by provid-ing for correcting its errors on motions for rehearing. It cannot be doubted, moreover, that during the term this court holds in its breast its own judgments, and, •on a suggestion of error, it may recall its own mandate and see to it that its judgment is amended so as to conform to its opinion., A judgment is the application of the law to the facts found, “the sentence of the law upon the record,” the determination of the cause, the act of the whole court to effectuate the reasoning and findings of the opinion. If, through slip, our judgment be faulty, why may it not be corrected by a mine pro tunc entry on seasonable application?

In a lawsuit one must certainly watch and, withal, may profitably pray. When, therefore, this court, on the appeal of plaintiff, reversed a judgment for the defendants it should have remanded the case for a new trial; but, when it did not the burden was on Donnell to be alert and to come here betimes and pray us to Correct our judgment and mandate. This he failed to do, sleeping on his rights for three years in a slumber so profound as to be likened (in figure) to that of Rip Van Winkle, or to that in which our great ancestor lost a rib (thereafter reconstructed' in another and much more desirable form).

But, it is further argued by appellant's counsel that to hold now that jurisdiction was not handed back to the lower court, because of a defect in form, is to impale the justice of the case upon the bare point of a technicality. Conceding the technicality, arguendo, how does the case stand between appellant and respondents on the coldly correct technical application of strict law? Let us see. When the case was here before it came on a judgment in favor of respondents attainting Donnell’s tax deed of fraud. We were then constrained to reverse that judgment — not, indeed, on the ground the evidence relied on as showing fraud did not support the judgment, but on the technical principle of law invoked by Donnell to the effect that defendant Taubman, in the former case of Lynch v. Donnell (he being in point of law a party thereto) had the opportunity to make his proof of fraud on issues framed in that cause; but he had been content to waive the fraud issued in the Lynch case and had relied on other allegations. We said Taubman could not do1 this, that he had his day in court on the issue of fraud and could not vex Donnell twice thereon. So that it was by virtue of the strict application of that technical principle of law that Donnell had any case left in court.

Moreover, modern law does not apply any principle of lex talionis — the Mosaic theory of an eye for an eye and a tooth for a tooth seems to have been the common law of Asia. Thus, in sec. 196 of the Code of Hammurabi, it was enacted as follows: ‘‘If a man has caused the loss of a gentleman’s eye, his eye one shall cause to be lost.” And in sec. 200 of that Code', it was provided: “If a man has made the tooth of a man that is his equal to fall out, one shall make his tooth fall out. ’ ’ But this doctrine is exploded. [St. Matt. 5:38, et seq. q. v.] Neither does the law make practical application of the everyday adage: turn about is fair play, nor does it apply the doctrine of tit for tat. It is also written: Thou shalt not seethe a kid in his mother’s milk. [Deut. 14:21 q. v.] Though all this be so, yet it is nowhere written that if plaintiff’s ease be kept in court at one time by grace of technicality, it may not be put out of court at another time by grace of another technicality; because thereby the beauty and even-handed symmetry of the law (the law being no respecter of persons) is made manifest, and all litigants at one time or another are allowed to contribute somewhat to this symmetry in order that not one jot or tittle of the law pass away till all be fulfilled, by common contribution.

We are content to let this opinion rest on the foregoing conclusions, rather than on the novel suggestion of the veteran and seasoned attorney representing respondents, made ore terms, to the general effect that the error committed, when the ease was here before, in failing to grant a new trial and to remand, was manifestly directed by the guiding hand of some supernal power in aid of justice. No authority was cited sustaining that suggestion and we believe none exists. That our errors should be hid in the gloom of preternatural mystery might enable us to escape judicial responsibility, but such view is believed to be unsound and without practical value in jurisprudence. May we he allowed to assign a human source to appellate virtues, and at the same time ascribe appellate errors to Heaven ? We think not.

Because there was no jurisdiction in the court below to try the case at bar, the judgment of the circuit court on the issue raised on the scire facias and return was right and is, therefore, affirmed.

ValUcmt, J., concurs ; Brace, P. J., and Graves, J., concur in the result.