(232 S.W.)

remove the administration of the insane futes were the same as those applicable in person's estate from the probate court, and this case, the court said (175 Mo. loc. cit. 84, that therefore, the circuit court had no juris- 85, 74 S. W. 996, 998): diction of the subject-matter. We cannot agree to this conclusion reached by the court in that case. The probate court has not exclusive jurisdiction in proceedings against insane persons. Section 514, R. S. 1909, is as follows:

"In all actions commenced against such insane person, the process shall be served on his guardian; and, on judgment against such insane person or his guardian, as such, the execution shall be against his property only."

In Frost v. Redford, 127 Mo. loc. cit. 498, 30 S. W. 179, it was held, that under section 5544, R. S. 1889, which is in the same language as section 514, R. S. 1909, just quoted, that an insane person under guardianship could be sued in the circuit court. The court said (127 Mo. loc. cit. 498, 30 S. W. 180):

"He continues to be the owner of the property and may sue by his guardian, and be sued and defend by his guardian, [and] an execution may be issued against his property. R. S. 1889, § 5544. His property rights, and rights under the exemption laws, were not changed by reason of his being declared insane and placed under guardianship."

"It is well settled law 'that, if a statute gives a remedy in the affirmative, without con. taining any express or implied negative, for a matter which was actionable at common law, this does not take away the common-law remedy, but the party may still sue at common law, as well as upon the statute. In such cases the statute remedy will be regarded as merely cumulative. But, where a new right or the means of acquiring it are given, and an adequate remedy for violating it is given in the same statute, then the injured parties are confined to the statutory remedy'-citing many cases.

"In order that this act should have effect contended for by counsel for defendant of ousting the jurisdiction of the circuit court and vesting the same in the probate court, it must afford not only a remedy, but an adequate remedy, and that remedy must be exclusive. It fills none of these requirements. The probate court is a court of limited jurisdiction, possesses only such power as is conferred upon it by statute, and can exercise its jurisdiction only in the manner prescribed by statute. This act does not confer upon the probate court power to hear, determine and afford adequate relief to a suitor in an action in that court against an insane person. Nor does it provide any method of procedure for that purpose. In fact, instead of providing an exclusive remedy in that Since that case was determined, section court, it provides none at all for such suitor. It is simply a limitation upon his demand, and that 499, R. S. 1909, was enacted, which requires limitation does not apply to cases like the one the property of the insane ward, if not suffi- in hand, but is confined to demands against an cient to pay all his debts in full, to be pro-insane person accruing before the granting of rated among his creditors. But this in no letters of guardianship. There is nothing in way restricts the jurisdiction of the circuit this contention." court to entertain a suit against him. After [6] From the above language, it is clear, it an insane person is adjudged restored to his right mind, section 520, R. S. 1909, pro-diction in suits on all claims against insane seems to us, that the circuit court has jurisvides, that:

"He shall be discharged from care and custody, and the guardian shall immediately settle his accounts, and restore to such person all things remaining in his hands belonging or appertaining to him."

So that, when the Fogle suit was brought, as shown by the petition, Kaster had been adjudged restored to his right mind, and the administration of his estate in the probate court was ended and the jurisdiction of that court over him and his estate had terminated. Consequently, he was subject to suit the same as any other person on any valid claims against him.

persons, whether they arose before or during the guardianship, and that the statutory remedy for proving up claims in the probate court against his estate in the guardianship proceedings is not exclusive, and does not exist at all after the insane person is adjudged restored to his right mind, his property returned to him, and the guardian discharged, as stated in the petition in the case of Fogle v. Kaster, supra. The petition in that case, it is true, was not based on the original claim, but on the claim as allowed in the probate court, but it alleged that said allowance constituted an indebtedness of the defendant, for which the plaintiffs prayed judgment as in ordinary cases. Whether the facts stated in said petition constituted a cause of action entitling the plaintiffs to a

The case of St. Louis v. Hollrah, 175 Mo. 79, 74 S. W. 996, was a suit to recover a personal judgment against an insane person for necessaries, while such person was un-personal judgment as prayed for was a quesder guardianship. It was brought in the circuit court. The defense was that the petition stated no cause of action, and the circuit court had no jurisdiction. This court disallowed both contentions. After setting out in its opinion the statutes relating to insane persons and their estates, which stat232 S.W.-64

tion for the circuit court to decide. It had jurisdiction to determine that question. Whether it determined it right or wrong is not material. If the facts stated did not constitute a personal liability on the part of the defendant, the petition, of course, failed to state a cause of action, but this in no way

(Supreme Court of Missouri, Division No. 2. and by divers persons to plaintiff unknown and

"Plaintiff further states that said libelous and defamatory answer will be forever on the records and files of the circuit court for inspection and reading of any person so desiring, and the following libelous and defamatory words

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

(232 S.W.)

and phrases are contained in the said answer, | 854; Monroe v. Davis, 118 Ky. 806, 82 S. W. to wit:

"It being No. 87192, room 7, October term, 1913, and there was a trial in said court on June 29, 1913, which resulted in judgment for defendant, and the lien was not sustained, and defendant believes and so states the facts to be that it lost its claim entirely because of the lack of knowledge and skill on the part of plaintiff herein, and that as a direct result thereof defendant lost said cause of action, and was compelled to pay $31 court costs in said cause, and the defendant herein asks judgment of this court against the plaintiff for the loss sustained herein, being its debt which was lost through the negligence and carelessness or lack of legal ability on the part of plaintiff herein, and the court costs expended.' "Plaintiff states said statements in answer were false and malicious, and were not germane to the cause at issue, and was intended to charge, and it did charge, and was under- stood to charge by persons whose hands this pleading came into.

"Plaintiff says that said publication in said answer of said libel is willful, wanton, and malicious, and was especially damaging to plaintiff, by reason of the fact that plaintiff was a practicing attorney in the courts of St. Louis and the state of Missouri, so that plaintiff is damaged in the sum of $50,000, and plaintiff, by reason of such malicious conduct, prays judgment for punitive damages in the sum of $50,000, making the whole plaintiff asks to recover being $100,000, together with his costs."

To this amended petition defendant filed a demurrer on the ground that it did not state facts to constitute a cause of action, and on October 12, 1918, said demurrer was taken by the court and sustained. Plaintiff declined to plead further, and suffered judgment to go against him, to which action he excepted, and has duly appealed said cause to this court.

J. Butler McCormick, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

MOZLEY, C. (after stating the facts as above). [1] 1. The question presented here for our decision is whether or not the language above set out as libelous is actionable or privileged. The rule announced as to whether or not a pleading filed in a pending suit is libelous or privileged is stated as fol

lows:

"Defamatory matter contained in pleadings, if relevant and pertinent to the issue in the case, is absolutely privileged; and it is immaterial that the allegations are false and malicious, and made under pretense or groundless suit. Maginn v. Schmick, 127 Mo. App. 411, loc. cit. 417, 105 S. W. 666; Groes v. White, 201 Mo. App. 248, 210 S. W. 920; Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795, 53 L. R. A. 445; Wilson v Sullivan, 81 Ga. 238, 7 S. E. 274; Wilkins v. Hyde, 142 Ind. 260, 41 N. E. 536; Ash v. Zwietusch, 159 Ill. 455, 42 N. E.

450; Lanning v. Christy, 30 Ohio St. 115, 27 Am. Rep. 431; Cooley v. Galyon, 109 Tenn. 1, 70 S. W. 607, 60 L. R. A. 139, 97 Am. St. Rep. 823; Crockett v. McLanahan, 109 Tenn. 517, 72 S. W. 950, 61 L. R. A. 914; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833; Abbott v. Bank of C. of Tacoma, 20 Wash. 552, 56 Pac. 376; McGehee. v. Insurance Co., 112 Fed. 853, 50 C. C. A. 551; Hollis v. Meux, 69 Cal. 625, 11 Pac. 248, 58 Am. Rep. 574; 17 R. C. L. p. 335, par. 83; Townsend on Libel and Slander (4th Ed.) § 223; 25 Cyc. 378, 379.

In the Jones-Brownlee Case, supra, it is held as follows:

"A defamatory statement made in a pleading in a civil suit in a court having jurisdiction of the cause, if relevant and pertinent to the issue, is absolutely privileged, and, being such, no suit for damages can be based on them by the person whom they seem to smirch."

And it is further held in said case that"Whether or not the defamatory matter was pertinent and relevant to the subject-matter of the cause in which they were used in the pleadings, it is a matter of law for the court. and not a matter of fact for the jury."

[2] 2. Plaintiff, in said petition, alleges that the paragraph complained of as libelous, supra, was not germane to the cause at issue. The court below, in sustaining said demurrer and rendering the judgment thereon that it did, necessarily held that it was germane to the cause at issue. Looking into this question we find it is apparent from the face of the record that plaintiff could not recover a fee for services theretofore rendered defendant if the cause was lost as a result of his negligence or carelessness, or on ac count of his lack of skill, or legal knowledge. It is laid down as the law in 6 C. J. p. 722, par. 287, as follows:

"But if through ignorance, want of skill, or negligence the attorney takes steps and renders services that are unnecessary and entirely useless he cannot recover therefor."

See Gabbert v. Evans, 184 Mo. App. 283, 166 S. W. 635; Beam Co. v. Bakewell, 224' Mo. loc. cit. 227, 123 S. W. 561.

We hold that paragraph was germane to the cause at issue. There cannot be any controversy under the authorities, supra, about said paragraph being privileged, and not actionable.

Let the judgment of the court nisi be affirmed.

It is so ordered.

RAILEY and WHITE, CC., concur.

PER CURIAM. The foregoing opinion of MOZLEY, C., is hereby adopted as the opin ion of the court.

All concur.

inal court of said county a verified information charging defendant, Glen E. Bater, and one Charley Maglio, with robbery in the first

(Supreme Court of Missouri, Division No. 2. degree. After a severance, defendant Bater June 23, 1921.)

1. Criminal law 772 (3)-Reference to information does not invalidate instruction which states all facts which jury must find.

The fact that an instruction stating the facts which the jury must find to authorize a conviction refers to the information does not render it erroneous where the instruction stated all the facts essential to the conviction, so that the reference was surplusage, though an instruction referring to the information for essential facts is erroneous.

2. Criminal law 761 (6) Instruction held not to assume ownership of stolen property. An objection that an instruction that if the jury found defendant took and carried away money or property of prosecuting witness from his person they should find him guilty assumed that the property described in the information belonged to prosecuting witness is absolutely devoid of merit.

3. Robbery

On

was granted a change of venue from Judge Latshaw, of Division No. 1, and said cause transferred to Division 2 of said court. October 18, 1919, Bater was duly arraigned, and entered a plea of not guilty. His trial was commenced before a jury on December 16, 1919.

State's Evidence.

The state offered substantial evidence tend

15-Defendant, who helped hold owner, while another took money from pock-out of this vacant house, seized the prosecutet, guilty of "first degree robbery."

A defendant, who helped another to hold prosecuting witness, while the other reached into his pocket and took his money therefrom, is guilty of "first degree robbery," defined by Rev. St. 1919, § 3307, as the felonious taking of property from the person by violence, or by putting him in fear of some immediate injury. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Robbery in the First Degree.] 4. Criminal law

1172(7)-Defendant cannot complain of instruction being unnecessary

burden on state.

ing to show that on September 30, 1919, John Williams, a carpenter, was held up and robbed of $18.89 by defendant Bater and one Charles Maglio, in Kansas City, Mo., at the east end of Twelfth street viaduct, as he was returning from the Santa Fé freighthouse. His hat was blown off and carried below the viaduct, while walking over the latter. After obtaining his hat, he was passing a vacant house, which stood directly under the viaduct, and abutting a roadway. Defendant Bater and one Charles Maglio came ing witness Williams, dragged him into said vacant house, and there forcibly and against his will took from him about $18.89 of lawful money of the United States. They then shoved him out of the house, down an embankment about 20 feet, into the roadway aforesaid, and threw his pocketbook, from which said money had been taken, after him; that J. H. Strorer, who was engaged in the grocery and transfer business at Kansas City, Mo., was returning from the west bothouse just as defendant and Maglio threw tom with his horse and wagon opposite said Williams down the 20-foot embankment from the vacant house. They notified Strorer not to stop, and he went some distance before doing so. Neither defendant nor Maglio had a mask on while they were throwing Williams down said embankment, nor while Williams was being robbed. It was a clear day, between 4 and 5 o'clock, when the above occurred.

In a prosecution for robbery, where the evidence clearly showed the money was taken from the prosecuting witness by violence, so that the offense was first degree robbery, the defendant cannot complain of an instruction whereby the state assumed the unnecessary burden of proving that the taking was accomplish-was being robbed. ed also by putting him in fear of immediate injury.

5. Robbery 24 (3)-Evidence of three witnesses identifying defendant held sufficient to sustain conviction.

Evidence by three witnesses, identifying defendant as the one who assisted another in robbing prosecuting witness, held sufficient to sustain defendant's conviction, though there was some discrepancy in the descriptions of the clothing worn by defendant as given by the

three witnesses.

Williams testified that defendant held him by the hands, while Maglio had him around the neck with one arm, and with the other hand reached into the left pocket of Williams, and took therefrom his pocketbook, containing three $5 bills, three $1 bills, and about 89 cents in silver. Williams said he caught onto the rear of Strorer's wagon, and after traveling about 40 to 50 feet they stopped; that almost immediately after the rob

Appeal from Criminal Court, Jackson Coun-bery defendant and Maglio came out of the vaty; E. E. Porterfield, Judge.

Glen E. Bater was convicted of robbery in the first degree, and he appeals. Affirmed.

cant house and ran north under the viaduct; that defendant proceeded in a northerly direction, while Maglio pursued an easterly course. In the meantime, Williams started to On October 16, 1919, the prosecuting attor- warn the police, while Strorer got off his wagney of Jackson county, Mo., filed in the crim-on and gave chase to defendant and Maglio,

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

(232 S.W.)

The court gave to the jury certain instructions, and the latter returned into court the following verdict:

"Dec. 17, 1919.

on the south side of the viaduct. The defend-alleged robbery, but that each was positive ant and Maglio arrived at the surface of the as to the identity of Maglio. The alleged viaduct when Strorer, who had also arrived statements of Williams and Strorer above there near them, pointed out defendant and mentioned were denied by each of them upon Maglio to one B. D. Coffey, a grain clerk of the trial of the cause. the Santa Fé Railroad. The latter started after defendant, and Strorer pursued Maglio, who was caught a short time afterwards. When Williams was thrown down the embankment he hollered at Strorer to stop defendant and Maglio, and said he had been robbed. Strorer was within about 20 feet of defendant and Maglio when they were on the viaduct. He heard Maglio call to defendant to "come back." He said, "That is the man that was on the wagon." Defendant was walking ahead of Maglio. When Strorer and Coffey were on the viaduct, as above mentioned, they were within about 120 feet of said vacant house. It was very steep from the vacant house up to where they were on the Twelfth street viaduct.

Coffey testified that while defendant was about one block away from him he started towards defendant, and hollered "that a highway robbery had been committed over on the end of the viaduct"; that appellant and Maglio started out running; that defendant beat witness up some steps, and when he reached defendant the latter was all out of breath; that he asked defendant if he robbed an old fellow down on the viaduct, and defendant denied it. Witness told him he believed he was the fellow, and defendant again denied it. Witness then asked him why he was running, and he said he was running after the other fellow; that he then invited defendant to go to Twelfth and Jefferson; that on the way down, defendant offered witness $1 for his trouble and time in running him. He told witness he didn't want to get mixed up in any trouble; that he and his father were going that night to some town in Oklahoma; that they then went to a saloon, where Officer Donovan arrested defendant.

Williams, Strorer and Coffey identified de fendant and Maglio after they were arrested. There is some contradiction as to the color of clothes worn by defendant, but it appears from the testimony of nearly all the witnesses who saw him that there was a hole in the knee of his pants. Defendant's Evidence.

Defendant's evidence tends to show that he was not wearing a green cap and dark suit, as alleged by some of the witnesses for the state, but, on the contrary, that he had nothing on his head, and wore light colored trousers. Defendant testified that he did not participate in the alleged robbery. Some testimony was offered by appellant tending to show that John Williams and J. H. Strorer stated in the presence of defendant's witnesses that they could not identify appellant as one of the men who participated in the

"We, the jury, find the defendant Glen E. Bater guilty of robbery in the first degree, as charged in the information, and assess his punishment at five years in the state penitentiary.

"George I. Myers, Foreman."

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by defendant to this court.

The instructions and rulings of the court, as far as necessary, will be considered in the opinion.

Walter W. Calvin, of Kansas City (Kimbrell & Wofford, of Kansas City, of counsel), for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., of Cape Girardeau, for the State.

HIGBEE, P. J. (after stating the facts as above). 1. Under proposition 1 of appellant's "Points and Authorities," the correctness of instruction No. 2, given by the court, is assailed upon various grounds. That part of said instruction complained of reads as follows:

"The court instructs the jury that, if you find and believe from the evidence that at any time within three years next before the 16th day of October, 1919, at Jackson county, state of Missouri, the defendant, Glen E. Bater, either alone or knowingly acting in concert with another, took and carried away any money or property described in the information the property of one John Williams, from his person or in his presence and against his will, by force and violence to his person, by putting him in fear of an immediate injury to his person, without any honest claim to such money or the intent to deprive said John Williams of his property on the part of defendant, and with ownership therein, then you will find defendant guilty of robbery in the first degree, and assess his punishment at imprisonment in the state penitentiary for any term, not less than five years."

We will consider the various attacks on said instruction, in the order as made by appellant.

[1] 2. "(a) The instruction refers the jury to the information to ascertain the property or what property defendant was charged with taking."

The main case relied on in support of this contention, is that of State v. Brown, 104 Mo. loc. cit. 370, 371, 16 S. W. 406, where the instruction failed to require the jury to find that the money was taken with a feloni