For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

James W. Boyd, of St. Joseph, for appellant. George W. Eastin, of St. Joseph, for respondent.

PER CURIAM. From the statement in appellant's brief we discover that this case involves the validity of an allowance of $75 against the estate of Osmon B. Campbell, deceased, by the probate court of Buchanan county, which was by said estate appealed to the circuit court and from that court to this.

We are not unmindful of the rule which is seemingly announced in State ex rel, v. Little River Drainage District, 196 S. W. 1115, that, in cases of appeal by the short form, recourse may be had to the certified copy of the record made by the clerk to supply certain deficiencies in the abstract of the record proper. But in the case now before us, the certified copy made by the clerk does not supply the lacking information. The judgment is affirmed.

IRMINGER v. WABASH RY. CO.
(No. 12822.)

(Kansas City Court of Appeals. Missouri.
April 29, 1918.)

-PURCHASER.

Ordinarily one cannot be held liable as the continuer of a nuisance merely because he purchased property on which a nuisance already existed, but he must either have done some positive act showing that he has adopted it, or there must be a notice or request to remove it. 2. WATERS AND WATER COURSES 119(6)

[1, 2] Plaintiff's abstract of the record wholly fails to comply with the rules in relation to appellate procedure. There is no What has abstract of the record proper. been filed as a printed abstract hopelessly commingles throughout, from start to finish, matters which should appear in the bill of 1. NUISANCE 10-CONTINUING NUISANCE exceptions with matters that should appear only in the abstract of the record proper. In fact, the document filed appears to be only a bill of exceptions signed by the judge, with nothing else containing, or which could contain, an abstract of the record proper. Where appellant's abstract commingles abstract of record proper with that of bill of exceptions so that the two cannot be distinguished, the appellate court will confine itself to the record proper. Ford v. Thayer Brokerage Co., 197 S. W. 339. But here there is none. Or, if we should treat the first 32 pages of the printed abstract as being record proper, disregarding the matters of exception therein, still such record is wholly insufficient. does not show when or at what term the motions for new trial and in arrest were filed, nor does it show that any such motions were filed at all. These must appear in the abstract of the record proper, and, if not, the abstract is insufficient. Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638. If they do not so appear, it is the same as if they did not appear at all. Flannigan Milling Co. v. City of St. Louis, 222 Mo. 306, 121 S. W. 112; Dalton v. Register & Co., 248 Mo. 150, 154 S. W. 67.

It

[3] The filing of a motion for new trial is not a necessary step to perfect an appeal. Hence rule 26 (169 S. W. xv) does not obviate the necessity of showing such motion. Case v. Carland, 264 Mo. 464, 175 S. W. 200. However, no attempt was made to comply with rule 26 or to secure the benefit of its provisions.

[4] The failure of opposing counsel to note the glaring defects of this record or to call our attention to them cannot take from us the right, power, or duty to enforce the rules. Hutson v. Allen, 236 Mo. 645, 139 S. W. 121; Hays v. Foos, 223 Mo. 421, 423, 122 S. W. 1038. The rules are made to expedite business; and, where a noncompliance therewith is so great that the business of the court is hampered and delayed, they should be enforced without respect to case or person. Harding v. Bedoll, supra.

DRAINAGE AND DISCHARGE-LIABILITY. Where defendant railroad succeeded by foreclosure to the rights and obligations of its predecessor railroad, which had constructed a ditch drawing water from other lands to plaintiff's land and closed the outlet thereof, damaging plaintiff's land by the resultant overflow, defendant was not entitled to formal notice or demand from plaintiff before being liable for such damages.

3. APPEAL AND ERROR 1170(9)-REVERSAL -IMMATERIAL ERROR-INSTRUCTIONS.

In suit against a railroad, succeeding by foreclosure to the obligations of a prior railroad, for damages from the former railroad's change of a channel and closing of ditch overflowing plaintiff's land, the inadvertent use of the word "defendant" in one of plaintiff's instructions, instead of "defendant's predecessor the merits of the action," reversible under Rev. in title," was not error "materially affecting St. 1909, § 2082; the jury not being misled thereby.

Appeal from Circuit Court, Clay County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by William Irminger against the Wabash Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

N. S. Brown, of St. Louis, and Harris L. Moore, of Excelsior Springs, for appellant. Martin E. Lawson, of Liberty, for respon

dent.

TRIMBLE, J. Plaintiff, through whose farm defendant's line of railway runs, brought this action to recover damages to his crop of 1916 caused by overflow of water brought, through defendant's ditch, to a point upon or very near to plaintiff's land and there allowed to accumulate and overrun plaintiff's property. The land involved lies south of and contiguous to defendant's right of way, and the overflow for which damages are sought occurred June 5, 1916.

At one time Rush creek, a large natural | thereby gather and conduct large quantities water course flowing from the northwest, of water to a point at or very near to plainpassed under the railroad, then owned by the tiff's land. Sections 2809 and 2810, R. S. Wabash Railroad Company at a point near Mo. 1909. King v. Union Trust Co., 226 Mo. the west side of plaintiff's farm, and flowed 351, 366, 126 S. W. 415. The deed under south along and near to plaintiff's west line, which defendant acquired title to and took and, after getting some distance south of said over possession of said railroad conveyed farm, turned east and then northeast on its every conceivable item of property tangible way to the Missouri river. The creek as thus or intangible owned by the former company, located was amply able to, and did, drain together with all rights, privileges, franchisthe water that came from the lands lying west es, immunities, and appurtenances thereto of plaintiff's farm. But many years ago said belonging, as well as "all rights under leases railroad company diverted said Rush creek or contracts" which the said former railroad from its above-named course by cutting a had. channel east along the north side of the railroad and causing the creek to flow through it and pass under the railroad at a point east of plaintiff's farm, instead of going under the railroad at the point on the west side of plaintiff's land as it had formerly done. After this diversion, the abandoned channel of the creek filled up and was obliterated so far as being a water course is concerned.

In January, 1893, the said Wabash Railroad Company, defendant's predecessor in title, for a valuable consideration, entered into a written contract with the owners, their successors and assigns of lands lying west of the railroad company plaintiff, whereby agreed to cut and maintain a ditch along the south side of the right of way from a point about a mile and perhaps more west of plaintiff's farm east to and a little past plaintiff's west line so as to carry the water drained by said ditch into Rush creek as diverted. This was done, and the waters from the lands west of plaintiff's farm drained into said ditch and flowed east to the above-named point near the west side of plaintiff's farm, and then went north under the railroad at that point through a trestle into Rush creek, and thence flowed east along the new channel cut by the railroad as aforesaid.

In 1907 said railroad company closed said ditch at its eastern extremity by filling up said trestle and making a solid embankment there, so that the ditch no longer had an outlet, but terminated in a low place where the water collected; and in June, 1916, the water was so impounded there that it rose and overflowed plaintiff's land.

The defendant, the Wabash Railway Company, acquired said railroad from the Wabash Railroad Company at foreclosure sale some time in the year 1915 prior to October 22d of that year. The foreclosure was under a mortgage dated July 1, 1906, which, of course, was subsequent to the contract the mortgagor made with the landowners west of plaintiff to maintain the ditch aforesaid. This contract was duly acknowledged by the parties thereto, and was placed of record February 10, 1893. So that the mortgagee and the purchaser of the railroad on foreclosure thereof took with notice of the terms of the recorded contract by which the railroad bound itself to maintain the ditch and

The petition alleged that defendant's predecessor closed said ditch and made said trestle "without opening a ditch along the south side of its railroad track to carry the waters thus gathered" on to where said Rush creek finally passed under said railroad after the above-mentioned diversion was made, and that said ditch could easily have been made. The petition further alleged that the defendant "has permitted said conditions to continue, in violation of law and of plaintiff's rights, ever since it became the owner of said railroad and took over the operation of same from its predecessor" in the year 1915 and "knew of the diversion and draining of the waters so gathered and conducted" in great volume to and upon plaintiff's land "or by the exercise of reasonable care and caution would have known thereof, and that said defendant did not remove said obstructions nor remedy said defects in said ditch and open the same as the law requires until long after the damage herein sued for had occurred." The petition further alleged that by reason of the damming and diverting of the waters aforesaid, "and by reason of the failure of defendant to ditch along its said railroad so as to care for said water gathered and conducted in great volume to said point in said ditch," the same flowed on to plaintiff's land and destroyed his crops.

Upon a motion being made to require the plaintiff to elect between a cause of action for damming up and casting waters upon plaintiff's land and a cause of action under the statute for failure to ditch, the plaintiff stated to the court that the case was not based upon the statute, so that the allegation of plaintiff's petition as to defendant's failure to construct the ditch to carry the water still further east to Rush creek, which the evidence shows was afterwards done, may be left out of consideration.

The case was tried before a jury, which returned a verdict in plaintiff's favor for $250, and defendant appealed.

The principal contention is that plaintiff's petition and all the evidence shows that the construction of the ditch draining waters from the west to plaintiff's land, and the closing of the outlet thereof into Rush creek as diverted, was done by defendant's predecessor, not by defendant itself, and that

there was no evidence that defendant had error. The petition alleged and the evidence any notice of the conditions, nor was any everywhere showed that the defendant's demand made on the defendant to abate the predecessor changed the channel of Rush nuisance created by the filling of the trestle. creek, and the case was tried upon that the[1] It is true that ordinarily one cannot ory, with no intimation or contention to the be held liable as the continuer of a nuisance contrary; and hence there is no reasonable merely because he purchased property on ground for thinking that the jury were miswhich a nuisance already existed. He must led thereby. The same inadvertence appears either have done some positive act showing in some of defendant's instructions, but it is that he has adopted it, or there must be a manifest that no one would fail to undernotice or request to remove it. Rychlicki v. stand what was meant when the case was City of St. Louis, 115 Mo. 662, 667, 22 S. W. everywhere and by both sides tried on the 908; Philadelphia, etc., R. Co. v. Smith, 64 theory that the former railroad company Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131. changed the channel and closed the ditch. We are forbidden to reverse a case for an error not "materially affecting the merits of the action." Section 2082, R. S. No. 1909. Judgment affirmed. All concur.

[2] But, under the circumstances of this case, is defendant entitled to any formal notice or demand from plaintiff before being liable for the damages arising by virtue of the situation? Defendant's predecessor, after diverting the channel of water course for its own continuing benefit, entered into a

CENTRAL NAT. BANK OF BOON-
VILLE. (No. 12840.)

April 29, 1918.)

Missouri.

1. BANKRUPTCY 363 PRESENTATION OF CLAIM IN BANKRUPTCY PROCEEDINGS-EFFECT.

Where a bank lends money upon a note signed by an automobile concern by a partner thereof, thinking money was for and note payable by a bank of which the partner signing note and receiving money was assistant cashier, former bank, by treating note as an obligation of the automobile concern and proving up claim therefor in bankruptcy proceedings, is barred lent on ground that money was given to assistfrom subsequently suing bank for the money ant cashier as agent of the bank. 2. BANKRUPTCY 363 PRESENTATION OF CLAIM IN BANKRUPTCY PROCEEDINGS-EFFECT.

contract which ran with the land, not only COMMERCIAL BANK OF BOONVILLE v. with that lying west of plaintiff, but also with the right of way of said railroad, to build and maintain a ditch whereby large quantities of water were to be conducted to plain- (Kansas City Court of Appeals. tiff's land and emptied into Rush creek as diverted. The rights and obligations under this contract passed, on foreclosure, to the defendant herein, who took with full notice of the same; and hence the maintenance of the embankment, or the keeping of the ditch closed, was a violation on defendant's part of its obligation, assumed upon the purchase and operation of said railroad, to maintain said ditch so as to take care of the waters collected thereby. Defendant succeeded to the title to said railroad and continued the operation thereof with full knowledge of the fact that it was conducting water to and upon plaintiff's land, and of its contractual obligation to dispose of same, as well as its violation of that obligation. It is true the contract was not made for plaintiff's benefit, and he is not suing here for a violation of the contract. But defendant availed itself of the right created by the contract to gather water and bring it to plaintiff's land, and, in so doing, it performed a positive act which Action by the Commercial Bank of Boonwould inevitably result in injury to plain-ville, Mo., against the Central National Bank tiff, unless it also continued to perform the of Boonville, Mo. Judgment for plaintiff, and corresponding obligation of the contract to defendant appeals. Reversed. empty said waters into the diverted channel of Rush creek. The performance of this W. G. & G. T. Pendleton and Roy D. Wilpositive act, with the knowledge of its fail-liams, all of Boonville, for appellant. John ure to maintain the ditch so as to connect Cosgrove, of Boonville, for respondent. with Rush creek as diverted, which would naturally and inevitably result in injury to plaintiff, is sufficient, in our opinion, to dispense with the necessity of notice on the part of plaintiff or of a request on his part to open the ditch.

In such case bank lending money cannot reserve right to proceed against the other bank by a statement in its petition in bankruptcy against the automobile concern that it did not intend to release the bank from liability.

Appeal from Circuit Court, Cooper County; Jack G. Slate, Judge.

"Not to be officially published."

BLAND, J. Plaintiff recovered a verdict and judgment in the sum of $1,500, and defendant has appealed. Defendant insists that its demurrer to the evidence should have been sustained.

The evidence shows that on August 3, 1916, and 20 years prior thereto, a custom existed among the banks doing business in Boonville,

[3] The inadvertent use of the word "defendant" in one of plaintiff's instructions, instead of the phrase "defendant's predecessor in title," should not be held to be reversible Mo., that when one bank was short of cur

rency it would go to another bank and secure | ly, on October 28, 1916, plaintiff filed a petia temporary loan of money; that on said tion in bankruptcy against Alexander H. day A. H. Stephens, who was assistant cash- Stephens, Sr., and Alexander H. Stephens, ier of the defendant bank, went to the Jr., and stated in its petition that it had a plaintiff and asked for a temporary loan of provable claim against Alexander H. Ste$1,500, and that he agreed to return the same phens, Sr., and Alexander H. Stephens, Jr., on the following day. A. H. Stephens was to the amount of $1,500, being the amount also a member of the automobile firm of claimed to have been loaned to defendant, Stephens & Son. It is not clear from the and further stated in its petition that: record whether the automobile concern had

The only words and figures contained in this memorandum that were inserted by Mr. Stephens were the figures $1,500 at the top left-hand corner of the memorandum and the words "demand", "fifteen hundred" and the signatures, "A. H. Stephens Son," "A. H. Stephens."

"It did not intend, and does not intend, to release or relieve said Central National Bank from liability from the payment of $1,500, if it shall appear that said Central National Bank so obtained said money from your petitioner as herein before stated, and that it was delivered to and received by the said Central National Bank, and that said money was appropriated by it.'

On December 11, 1916, plaintiff proved up its claim against the estate of said Alexander H. Stephens, Sr., and Alexander H. Stephens, Jr., and filed an affidavit of its cashier, stating that A. H. Stephens, Sr., had asked for a loan of $1,500 in currency, which was delivered to him, and that Alexander H. Stephens, on the 3d day of August, 1916, promised and agreed to return said $1,500 on the 4th day of August, 1916, when he refused to pay that sum, and no part of said sum has ever been paid, and then plaintiff filed the so-called memorandum which is described in the affidavit as a note of A. H. Stephens & Son and A. H. Stephens.

disclosed agency in the case.

[1] It is the contention of the defendant It will be seen from an examination of that, plaintiff having elected to proceed this memorandum that in the signatures against the estate of A. H. Stephens & Son, the name of defendant bank does not ap it thereby made a choice of its remedies, pear. However, the president of plaintiff and that the remedy now sought against bank stated that Mr. Stephens, when he se- the defendant is inconsistent with that purcured the money, stated that "he needed sued against A. H. Stephens & Son. Having the $1,500 in currency at the bank and would concluded that this contention is well taken, return it next day," and that "the bank need- it is unnecessary for us to determine whether ed it." There is some slight evidence that the plaintiff is in a position to say that its defendant bank received the $1,500, and, as president did not read the memorandum on the jury found for the plaintiff, we may the day it was given by Stephens, and thereassume that the.defendant actually received fore that it cannot say that it loaned the the $1,500. The president of plaintiff testified money to defendant bank when the written that he did not look at the memorandum giv- memorandum on its face indicates that it en by Stephens; that he understood he was loaned it to A. H. Stephens & Son and A. loaning the money to the defendant; that H. Stephens, there being no question of unhe did not inspect the paper until the next day, when the money was not returned. He We think there can be no question but that then saw that it was a promissory note for plaintiff, having elected to assume the posi$1,500, payable on demand, and signed A. H. tion that the obligation was one of A. H. Stephens Son and A. H. Stephens, and he fill- Stephens & Son, cannot now say that it was ed in the date, August 3, 1916, and attached to the obligation of the defendant bank. 7 the note the necessary revenue stamp. After Encyc. of Pleading and Practice, 364; Nanson all this was done he did not consider the v. Jacob, 93 Mo. 331, 6 S. W. 246, 3 Am. St. note one of Stephens, but an obligation of defendant; that he would not have loaned A. H. Stephens & Son or A. H. Stephens the money because he did not consider their credit sufficient. Hé testified that he demand- [2] There is nothing in this case involving ed from Stephens the money from day to the question of election between holding an day, but was not paid. The bank also re- agent or an undisclosed principal. It is fused to pay it claiming that it was the plaintiff's contention that there that there was no obligation of Stephens. On August 5, 1916, undisclosed principal, but that the principal A. H. Stephens was let out of his position was the defendant bank, and that plainas assistant cashier of the defendant. Final- tiff in the very beginning understood this to

Rep. 531; Smoot v. Judd, 184 Mo. 508, 83 S.
W. 481; Tower v. Compton Hill Improvement
Co., 192 Mo. 379, 91 S. W. 104. Plaintiff's
authorities are not in point.