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The court then again called said cause on fore the evening of October 4, 1893. That the docket, when plaintiff's counsel asked if the case is postponed until 3 o'clock p. m. the court to postpone the hearing of the of 4th of October, 1893, affiant believes that cause until 3 o'clock of that day, to wit, both of said counsel, with their evidence and Wednesday, the third day of the term, and witnesses, will be here and ready for trial. 4th day of October, when the trains would That the president (Houck) of the plaintiff arrive, and presented a verified application corporation lives in the city of Cape Girfor such postponement, the substance of ardeau, Mo., where the general office of the which is the following: The plaintiff can- plaintiff is located, and in telegraphic comnot safely enter upon the trial of said cause munication with the station on Current Rivon the 3d day of October, 1893, and cannot, er Rairoad, nearest Van Buren. That he as affiant believes, enter upon such trial be. can and will telegraph them to appear in fore Wednesday, the 4th day of October, time to arrive at Van Buren the evening of 1893, after the arrival of the train at which the 4th of October, 1893. That he does not time he believes plaintiff can and will be know whether the said W. H. Miller is at ready for trial. That affiant was not em- his home in Jackson, Mo. That he has had ployed as an attorney for plaintiff until the no communication with him concerning said 27th day of September, 1893. That he had cause, but he will attempt to communicate never at any time theretofore been employed with him by telegraph in time for him also by plaintiff as its attorney in any case. That to arrive at the time aforesaid. That affiant affiant is informed and believes that Hon. left his home at Marble Hill on Sunday, M. R. Smith is counsel for plaintiff in this evening, went tnence to Cape Girardeau, case, and in its business generally, and senior Mo., that evening, remained over night, and counsel in this case. That M. R. Smith re- on Monday morning, the 2d of October, 1893, sides in Farmington, Mo., more than 70 miles left for Van Buren, arriving at that place from Van Buren. That affiant is informed prior to 3 o'clock of that evening. On the that Hon. W. H. Miller is associate counsel, 4th he adds a postscript to this affidavit, and and that he resides at Jackson, Cape Gir- says "that, since said affidavit was made, he ardeau county, Mo., more than 70 miles from has received a telegram from Louis Houck, Van Buren. That said attorneys Hon. M. president of said road, that he will be here R. Smith and W. H. Miller are, as affiant is at this court, with his attorneys and witinformed, familiar with the facts in said nesses, on Wednesday evening, October 4,

Affiant is informed that the evidence 1893, after the arrival of the train from Hunis documentary principally, and such docu- ter.” This application to postpone was armentary evidence, affiant is informed, is in gued and submitted to the court, and denied. the possession of said attorneys, M. R. Smith Then plaintiff took a nonsuit, with leave, etc. and W. H. Miller. Affiant has been inform- This application for a postponement is ed that the record and proceedings in this without precedent. There is not a symptom cause are large and extensive, and the issues of an excuse why Carter or Miller were not involved are of vital importance to plaintiff, present at the Carter circuit court, and the and that he has a meritorious cause of ac- express allegation is made that "Miller" is tion. That the affiant is utterly unfamiliar familiar with the facts in the case, and he with the issues involved in this cause, or only some 70 miles away. Why was not he with the evidence to be adduced to sustain present, attending to his duties as one of them. That he has had no opportunity to plaintiff's counsel? Why was he not suminform himself of the same, for the reason that moned by telegram? No effort of the kind his employment has been only as associate was made. Cases of this sort are largely counsel, and very recent. He has had no op

and for the most part in the discretion of portunity to consult with any counsel or in- the trial court,-a discretion which will not dividual familiar with the case. That he be interfered with by the appellate tribunals has never practiced as an attorney hereto- unless obviously abused. State V. Bailey, fore in the circuit court of Carter county. 94 Mo. 311, 7 S. W. 425; State v. Hedgepeth, That he was enrolled in said court on the 125 Mo. 14, 28 S. W. 160; State v. Jewell, 90 evening of the 2d day of October, 1893, after Mo. 467, 3 S. W. 77; State v. Dusenberry, the hour of 3 o'clock. That he lived in Mar- 112 Mo. 278, 20 S. W. 161. This point, also, ble Hill, Bollinger county, Mo., more than should be ruled against the plaintiff; and, 75 miles from Van Buren, Mo. That the in determining this point, it is not wholly Current River Railway is the only railroad immaterial or irrelevant to consider the narunning to Van Buren. That he has been ture of the petition, and its singular failure informed and believes that said M. R. Smith to set forth any grounds for enjoining the has been detained in the trial of a case in collection of the garnishment judgment. the circuit court of Madison County, Mo. Of course, if the previous rulings are corThat affiant is informed and believes that rect, it must follow that that which refused said Smith cannot get away from said cir- to set aside the judgment of nonsuit was cuit court before Monday, the 2d day of Oc- also correct. The judgment should be aftober, 1893, and cannot reach Van Buren be- firmed. All concur.

and all persons within the benefit district CITY OF ST. LOUIS V. LANG et al. "whose property would be benefited, (Supreme Court of Missouri, Division No. 2. made parties defendant, and properly brought Dec. 3, 1895.)

into court. Thereafter such steps were taken CHANGING STREET GRADE-PROCEEDING TO ASSESS

in conformity with law as resulted in the filDAMAGES-PICTITION-EXCEPTIONS-ANSWER ing of a report by properly appointed commis-DEFAULT JUDGMENT-DAMAGES.

sioners. More than 10 days after the filing 1. The petition in a proceeding under Rev.

of this report, defendants filed exceptions to St. $$ 1815-1821, to assess damages and benefits for change of street grade, by alleging that

the report, which exceptions were stricken a certain ordinance, defining the limits within out, on motion of plaintiff, because not filed which private property had been or would be

in time, as required by section 1818, Rev. St. benefited by the grading of the street, was "duly enacted," inferentially states (which is suffi

1889. Thereupon defendants asked leave to cient as against a motion in arrest) the passage

file an answer, but the court refused to grant of an ordinance for the grading of the street; such leave. Subsequent to this the trial court the charter providing that no grading of a

approved and confirmed the report of the street can be ordered except by ordinance, and the court being required by the constitution and

commissioners, and because of the failure of the charter to take judicial notice of the provi- defendants, within the time allowed by law, sions of the charter.

to file any answer to the petition, or any ex2. Under Rev. St. $ 1818, providing that the

ceptions to the report of the commissioners, report of commissioners to assess damages and benefits for changing grade of street may be re- the averments of the petition were by the viewed by the court on exceptions filed within lower court taken as confessed, and judgment 10 days after filing thereof, exceptions filed

entered accordingly. The petition, after apthereafter are properly stricken out. 3. Though, in a proceeding under Rev. St.

propriate reference to Ordinance 9295, estab$ 1815, to assess damages and benefits for lishing the grade of Hickory street as herechange of street grade, defendant may file an- tofore stated, proceeds thus: swer,--defendants, under section 2012, having

"That thereafter, to wit, on the 31st day the right, whatever the form of action or method of procedure,-it must be filed seasonably,

of October, 1891, there went into force and and leave to file answer, not asked till after ex- effect an ordinance of said city of St. Louis, piration of time to file exceptions, is properly

duly enacted by the municipal assembly refused. 4. A judgment in a proceeding under Rev.

thereof, upon the unanimous recommendation St. $S 1815-1821, to assess damages and benefits of the board of public improvements, in writfor change of street grade, for want of an an- ing, and approved by the mayor of St. Louis, swer filed in due time, will have the same force and effect as in any other proceeding.

ordinance to define the limits within 5. Damages for change of street grade will

which private property has been or will be be assessed according to the provisions of the benefited by the grading of Hickory street constitution, which went into effect after the

between Mississippi avenue and Armstrong passage of the ordinance establishing the changed grade, but before any action was taken to

avenue, which ordinance is numbered 16454, carry the ordinance into effect.

and is in words and figures following, to wit.

(16454): Appeal from St. Louis circuit court; Jacob

“An ordinance to define the limits within Klein, Judge. Proceeding by the city of St. Louis against

which private property has been or will

be benefited by the grading of Hickory Farcas Lang and others. Judgment for

street between Mississippi avenue and plaintiff. Defendants appeal. Affirmed.

Armstrong avenue. Broadhead & Hezel, for appellants. W. C. “ 'Be it ordained by the municipal assembly Marshall, for respondent.

of the city of St. Louis, as follows:

“Section 1. The real estate situated withSHERWOOD, J. On March 18, 1892, the in the following boundaries is hereby deplaintiff city instituted this proceeding, un- clared to have been or to be benefited by the der sections 1815 to 1921, inclusive, Rev. St. grading of Hickory street between Missis1889, to assess the damages and benefits sippi avenue and Armstrong avenue to the caused by changing the grade of Hickory grade established by ordinance nine thousand street between Mississippi and Armstrong two hundred and ninety-five, approved Januavenues. Prior to that the city, on the 18th ary eighteenth, eighteen hundred and seventyof January, 1875, by Ordinance No. 9295, en- five, to wit,' etc. titled "An ordinance to establish the grade "Plaintiff further states that it is necessary of Hickory street between Mississippi avenue to grade Hickory street between Mississippi and Armstrong avenue," fixed the grade by and Armstrong avenues to conform to the establishing the same at a point 245 feet grade established by the ordinance aforesaid, west of the west line of Mississippi avenue, and for the purpose of constructing and imat an elevation of 80 feet above the city di- proving said street; that the owners of the rectrix. Subsequently thereto, to wit, on Oc- property affected by said improvement have tober 31, 1891, the city passed an ordinance refused to consent thereto, and that plaintiff (No. 16,454) whereby were defined the limits is unable to agree with said owners for the within which private property would be ben- proper compensation for the damages done or efited by the grading of Hickory street, as likely to be done or sustained by reason of aforesaid. Upon institution of this proceed- such improvement; and that, by reason of ing all persons who would suffer damages, the legal incapacity of the minor defendants • herein, such compensation cannot be agreed | good cause shown, but the hearing of such upon. Plaintiff further states that the gen- | exceptions shall be summary, and the court eral nature of the work of improvement afore- shall fix a day therefor without delay. Any said is to conform the grade of said Hickory | party shall be entitled to have the damages street between said Mississippi avenue and assessed by a trial by jury, as at common Armstrong avenue to the other portions of law, upon claiming the right in the excepHickory street, and in so doing to fill in some tions to the report of the commissioners." places and to cut down in other places, there- Section 1821 provides as follows:

as follows: "In all by changing the natural condition of the land. cases where the city authorities have graded Plaintiff further states that the defendants or regraded, or changed the grade or lines above named are in actual possession of the of any street or alley, or may hereafter grade premises to be affected, either by being dam- or change the grade or line of any street or aged or by being benefited, or have a title | alley, without the consent of the owner, or to said premises appearing of record, and ly- where the compensation cannot be agreed uping within the benefit district established by on, and do not, before the commencement of said Ordinance No. 16,454."

the work, institute proceedings, or have not The sections of the statute already refer- instituted proceedings, to have the damages red to, which control this cause, are as fol- ascertained and assessed, as provided in the lows: Section 1815 provides that: "In all six preceding sections, the owner shall be cases where the proper authorities in any city entitled to an action at law against the city, in this state, shall have graded or regraded, town or village, to ascertain and recover the or may hereafter grade or change the grade amount of damages caused by such improveor lines of any street, or alley, or in any way

ment." alter or enlarge the same, or construct any 1. It is insisted on behalf of defendants public improvement, thereby causing dam- that the lower court acquired no jurisdiction age to private property for public use with- in the premises because of the fact that the in the meaning of sec. 21, of art. 2, of the petition fails to set forth the passage of Orstate constitution, without the consent of the dinance 14900, approved March 26, 1889, auowner of such property, or in case they fail thorizing Hickory street, from its present to agree with the owner thereof for the prop- western terminus, to be partially graded, and er compensation for the damages so done, or making provision for the cost of such imlikely to be done or sustained by them, or if, provement. It certainly would have made by reason of the legal incapacity of such own- the point of jurisdiction, or rather of the er, no such compensation can be agreed upon, validity of the petition, much easier of soluthe circuit court having jurisdiction over the tion, had the ordinance last mentioned been territory embraced in such city, or any judge pleaded; but the question here presented is, thereof in vacation, on application by peti- is the petition sufficient without that course tion, either by the city authorities or the own- being pursued? In other words, is the paser of the property for which damage is claim- sage of such an ordinance a condition preed, or any one on behalf of either," is au- cedent to the institution of the proceeding thorized to appoint commissioners to assess at bar, and of consequence the statement of the damages and benefits. This section fur- such passage a necessary ingredient in the ther provides that: “The petition shall set make-up of a petition in a case of this sort? forth the general nature of the work or im- Assuming for argument's sake that it is, let provement causing damage to private proper- us look at the situation presented by this recty for public use, as aforesaid, together with ord, together with such questions as naturalall the facts necessary to give the court juris-ly present themselves for consideration in concliction in the premises, the names of the neçtion therewith, to wit: The constitution of owners of the several lots or parcels of land this state (article 9, § 21), requires that we to be affected thereby, if known, or if un- take judicial notice of the charter of the known, a correct description of the parcels city of St. Louis, and a like requirement is whose owners are unknown.” It is further made in the charter itself. Looking, then, to provided in said section that upon the filing the charter, we find that the only power the of such petition a summons shall issue, etc. city authorities have as to the grading of It further requires that, before the city insti- streets is that which must be expressed in tutes a proceeding under this act, it shall by the form of an ordinance. Charter, art. 3, ordinance define the limits within which pri- $ 26. and article 5, $ 14. Looking, then, to the vate property is benefited by the change. Sec- petition, we find that it makes a direct statetions 1816 and 1817 relate to the method of ment that Ordinance 16454 had been "duly assessing damages and benefits, and to the enacted," and that it was an ordinance to report of the commissioners. Section 1818 define the limits within which private propprovides that: “The report of the commission- erty had been or would be benefited by the ers may be reviewed by the circuit court on grading of Hickory street between Missiswritten exceptions, filed by any party, in the sippi avenue and Armstrong avenue. And, clerk's cffice, within ten days after the filing on looking to the caption as well as to the first of such report, and the court shall make such section of that ordinance, we find similar dec. order therein as right and justice may re- larations made as to the grading of Hickory quire, and may order a new commission on street between the points aforesaid. So that

taking, as we must, judicial notice of the charter provisions that no grading of a street, or improvement, can be ordered to be made, which involves the expenditure of money, except by ordinance, it must needs follow that the statements of the petition, inferentially and by implication, at least, announce the passage of an ordinance for the grading of Hickory street. So that, conceding defendants' position to be correct, we should regard the statement made in the petition, and be fully justified in so doing, as but a defective statement of a cause of action, and not the statement of a defective cause of action, and that, as it would be good against a general demurrer, so also will it be good against a motion in arrest. Aurora Water Co. v. City of Aurora (Mo. •Sup.) 31 S. W. 946. Another suggestion occurs in support of the view just presented. If the authorities of the city, in the usual course of business, would first have to pass an ordinance to grade Hickory street, as a condition precedent to the passage of an ordinance of the nature of Ordinance 16454, then the passage of the latter ordinance, being alleged, affords presumptive proof of the passage of the requisite and prior ordinance, and this upon the principle which finds illustration in the maxim, "Probatis extremis, præsumuntur media.” 1 Greenl. Ev. (14th Ed.) $ 20, and cases cited.

2. Under the provisions of section 1815, the city is permitted to institute such proceedings as the present "without the consent of the owner of such property.” But, were this otherwise, the petition is sufficiently full in its statements showing utter inability to agree with the defendant owners as to the compensation which should be paid for the property in question, as well as sufficiently full regarding other statements. And it is to be here noted that there exists a marked distinction between section 1815 and certain statutory provisions which came under discussion in Anderson's Case, 47 Mo. 479, and other cases similar thereto.

3. The exceptions filed by defendants out of time were properly stricken out, on motion of plaintiff, because of such failure. Rev. St. 1889, 8 1818.

4. For analogous reasons, the refusal of the court to permit defendants to file an answer was correct. It was offered out of time. There is no doubt that a right exists in a case of this kind to file an answer. Section 2042, Rev. St. 1889, contemplates that "every defendant summoned or notified according to law," no matter what the form of action or method of procedure, shall have the right “to demur to or answer the petition." This right of traversing the allegations of the petition in instances like the one before us is recognized elsewhere. Lewis, Em. Dom. $ 304. The necessity for promptitude in filing exceptions or an answer in cases of this sort becomes apparent when the provisions of section 8 of the charter are

considered, which require the city to pay all costs of such proceedings, including the filing of the report of the commissioners.

5. As a corollary of the right to file an answer herein, springs into being the right to take judgment by default in case no answer be filed. And we see no reason to distinguish this proceeding from any other, as to the force and effect of a judgment when taken for want of answer. We hold there is none.

6. Relative to the contention of defendants that “the owners of property damaged are not entitled to compensation for any damage suffered by reason of change of grade or grading done prior to November 30, 1875, the date when the present constitution went into effect," it suffices to say that the mere passage of an ordinance establishing the grade of a street in 1875 would certainly not be calculated to work very much hurt, until attempted to be put in operation. Moore v. City of Girardeau, 103 Mo. loc. cit. 475, 15 S. W. 755. But, if put into operation after our present organic law took effect, the same rule respecting damages to be assessed would be applied as if Ordinance 9295 had been passed at a date postdating November 30, 1875. Nor do we see any reason to doubt that the ordinance had the intended effect to establish the grade as therein declared, not only at the point indicated, but the entire distance between the two avenues. If not, it was certainly very singular that it should have been passed. But, if it did indeed establish the grade on Hickory street between the two avenues, then it would seem to follow that there was no necessity to advert in the petition to the passage of any other ordinance. And this we regard as the result of the passage of that ordinance. A bit of history hereto subjoined, and some ob servations pertinent thereto, kindly furnished by my Brother Barclay, a native St. Louisan, affords an apt illustration of the significance, force, and precise effect of the terms empoyed in Ordinance 9293: “The 'city directrix' is a well-known standard for the determination of elevations in St. Louis. According to local historical authority, it was fixed on a level with the highest point of the flood of 1826, when the Mississippi river rose to an unusual, and until then unprecedented, limit. To mark that point. René Paul, then city engineer, under authority of the council, erected a stone monument near the southwest corner of the levee and Market street. The top of that monument was even with the line of the flood of 1826. It was adopted, and still remains, as the base line for the measurement of all elevations required in municipal work. The grades of streets and other thoroughfares are usually fixed by relation to the city directrix. It is often sufficient, in locating the grade of a new street or part of a street, to fix one point in it with reference to the directrix, when the new street, at its beginning and end, in

tersects other highways of already estab- stake at the fence on east line of an alley; lished grades. The ascertainment of the thence south along said fence thirty-nine and grading lines throughout the new street is one-half (3912) feet to a corner of said fence; then a mere matter of mathematical engi- thence in a northerly direction, parallel to neering. The original monument erected by center line of said railroad, one hundred and Paul remained in place until about 1890, fifty-seven (157) feet to a stake for corner; when it was remu ved during the construc- thence in a southeasterly direction, at right tion of one of the railways on the levee; but angles to said railroad, thirty-two and oneits elevation has been transferred to per- half (3212) feet to stake for corner; thence manent structures in various parts of the in a northeasterly direction, parallel to said city, and still remains the standard of munic- railroad, fifty-two (52) feet to stake for coripal levels."

ner; on west line of said Madison Street, Finding no error in the record, judgment eighty feet (80) to place of beginning.” The affirmed. All concur.

petition is in the usual form, and the answer a general denial. From a judgment in

favor of plaintiffs, defendant appealed. FORDYCE et al. v. RAPP.

Wilson Cramer, for appellant. W. S. C.

Walker, W. H. Miller, and Sam. H. West, (Supreme Court of Missouri, Division No. 2.

for respondents.
Dec. 3, 1895.)
CONVEYANCE BY RAILROAD_DESCRIPTION-SUFFI-
CIENCY-WARRANTY-AFTER-ACQUIRED

BURGESS, J. Both parties claim title un-
TITLE-INSTRUCTION.

der J. R. Beckwith, but as defendant, in his 1. Where a conveyance is made by deed of brief, contends that plaintiffs never acquired general warranty, any title to the land subsequently acquired by the grantor will, by opera

the title, it becomes necessary to set out the tion of law, inure to the grantee or his assigns. title claimed by the respective parties plain

2. Land on which a railroad company has tiff and defendant in full. Plaintiffs offered placed a depot and side tracks will pass under

evidence as follows: a deed conveying all its property except that “not necessary for or used or acquired" for oper

A deed from Jacob R. Beckwith and wife ation of its road.

to the Little River Valley & Arkansas Rail3. A deed by a railroad company describing

way Company, dated August 31, 1881, and the property as "all the railroad" of the grantor through certain counties, and "all its lands,

recorded September 13, 1881, reciting that and rights of way, depót and depot grounds, grantors "grant, bargain, and sell, convey * * * together with all the real estate * * *

and confirm" the following land: "Beginning of said railway company,

* * wherever situated, * * *" is sufficient to transfer title

at a point in the west line of the highway to a tract of land in one of the counties named, known as the "Clarkton Road,' one hundred a part of a larger tract acquired for a right of and fifty feet south of the north line of Sec. way, on which the company had placed a depot fifteen, township twenty-two, range 10 east; and tracks.

4. The refusal to instruct on an issue in the thence southwesterly, parallel with the main pleadings conclusively shown by the evidence is track of the Little River Valley and Arkanproper.

sas R. R. Co. of Mo., five hundred and eightyAppeal from circuit court, Dunklin county. | five feet; thence southeasterly (at right an

Action of ejectment by S. W. Fordyce and gles with said main track, one hundred and another, receivers, against John G. Rapp. seventeen feet; thence southwesterly), paralFrom a judgment for plaintiffs, defendant lel with and fifty feet from said main track, appeals. Affirmed.

seventy-eight feet; thence south one hunThis is an action of ejectment by plaintiffs, dred and twenty feet; thence northeasterly, as receivers of the St. Louis, Arkansas & parallel with said main track, one hundred Texas Railway Company, for the possession and forty-three feet; thence southeasterly, at of the following described tract of land ly- | right angles with said main track, one huning in Dunklin county, to wit: “A part of dred feet; thence northeasterly, parallel with the northeast quarter of the northwest quar- said main track, to west line of said highter of section fifteen (15), in township No. way, known as "Clarkton Road'; thence north, twenty-two (22) north, of range No. ten (10) along west line of said Clarkton road, to east, and by metes and bounds as follows: point of beginning, --containing three and Beginning at a point on Madison street in 63/100 acres, more or less." A deed in the the city of Malden, as the same appears upon same form from Jacob R. Beckwith and wife the plat of said city, on file in the recorder's to Cora A. Hill and George B. Clark, dated office of Dunklin county, Missouri, on the July 2, 1881, and recorded July 7, 1881, conwest line of said street, one hundred and veying the following land: “The undivided sixty-seven (167) feet from the center line two-thirds interest in and to fifteen acres.of of the track of the Saint Louis, Arkansas land off of the east part of the northeast and Texas Railroad, measured out at right quarter of the northwest quarter of section angles to same, an iron rod for corner mark; fifteen (15), in

fifteen (15), in township twenty-two

-(22) thence in a southwesterly direction, parallel north, of range No. ten (10) east.” A deed in to center line of said railroad, one hundred the same form from Cora A. Hill and husand sixty-seven (167) feet distant from same, band, E. W. Hill, to the Little River Valley two hundred and thirty-four (234) feet to a & Arkansas Railway Company, dated August

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