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The court then again called said cause on the docket, when plaintiff's counsel asked the court to postpone the hearing of the cause until 3 o'clock of that day, to wit, Wednesday, the third day of the term, and 4th day of October, when the trains would arrive, and presented a verified application for such postponement, the substance of which is the following: The plaintiff cannot safely enter upon the trial of said cause on the 3d day of October, 1893, and cannot, as affiant believes, enter upon such trial be fore Wednesday, the 4th day of October, 1893, after the arrival of the train at which time he believes plaintiff can and will be ready for trial. That affiant was not employed as an attorney for plaintiff until the 27th day of September, 1893. That he had never at any time theretofore been employed by plaintiff as its attorney in any case. That affiant is informed and believes that Hon. M. R. Smith is counsel for plaintiff in this case, and in its business generally, and senior counsel in this case. That M. R. Smith resides in Farmington, Mo., more than 70 miles from Van Buren. That affiant is informed that Hon. W. H. Miller is associate counsel, and that he resides at Jackson, Cape Girardeau county, Mo., more than 70 miles from Van Buren. That said attorneys Hon. M. R. Smith and W. H. Miller are, as affiant is informed, familiar with the facts in said case. Affiant is informed that the evidence is documentary principally, and such documentary evidence, affiant is informed, is in the possession of said attorneys, M. R. Smith and W. H. Miller. Affiant has been informed that the record and proceedings in this cause are large and extensive, and the issues involved are of vital importance to plaintiff, and that he has a meritorious cause of action. That the affiant is utterly unfamiliar with the issues involved in this cause, or with the evidence to be adduced to sustain them. That he has had no opportunity to inform himself of the same, for the reason that his employment has been only as associate counsel, and very recent. He has had no opportunity to consult with any counsel or individual familiar with the case. That he has never practiced as an attorney heretofore in the circuit court of Carter county. That he was enrolled in said court on the evening of the 2d day of October, 1893, after the hour of 3 o'clock. That he lived in Marble Hill, Bollinger county, Mo., more than 75 miles from Van Buren, Mo. That the Current River Railway is the only railroad running to Van Buren. That he has been informed and believes that said M. R. Smith has been detained in the trial of a case in the circuit court of Madison county, Mo. That affiant is informed and believes that said Smith cannot get away from said circuit court before Monday, the 2d day of October, 1893, and cannot reach Van Buren be

fore the evening of October 4, 1893. That if the case is postponed until 3 o'clock p. m. of 4th of October, 1893, affiant believes that both of said counsel, with their evidence and witnesses, will be here and ready for trial. That the president (Houck) of the plaintiff corporation lives in the city of Cape Girardeau, Mo., where the general office of the plaintiff is located, and in telegraphic communication with the station on Current River Rairoad, nearest Van Buren. That he can and will telegraph them to appear in time to arrive at Van Buren the evening of the 4th of October, 1893. That he does not know whether the said W. H. Miller is at his home in Jackson, Mo. That he has had no communication with him concerning said cause, but he will attempt to communicate with him by telegraph in time for him also to arrive at the time aforesaid. That affiant left his home at Marble Hill on Sunday, evening, went thence to Cape Girardeau, Mo., that evening, remained over night, and on Monday morning, the 2d of October, 1893, left for Van Buren, arriving at that place prior to 3 o'clock of that evening. On the 4th he adds a postscript to this affidavit, and says "that, since said affidavit was made, he has received a telegram from Louis Houck, president of said road, that he will be here at this court, with his attorneys and witnesses, on Wednesday evening, October 4, 1893, after the arrival of the train from Hunter." This application to postpone was argued and submitted to the court, and denied. Then plaintiff took a nonsuit, with leave, etc.

This application for a postponement is without precedent. There is not a symptom of an excuse why Carter or Miller were not present at the Carter circuit court, and the express allegation is made that "Miller" is familiar with the facts in the case, and he only some 70 miles away. Why was not he present, attending to his duties as one of Why was he not sum

plaintiff's counsel? plaintiff's counsel?

moned by telegram? No effort of the kind was made. Cases of this sort are largely and for the most part in the discretion of the trial court,-a discretion which will not be interfered with by the appellate tribunals unless obviously abused. State v. Bailey, 94 Mo. 311, 7 S. W. 425; State v. Hedgepeth, 125 Mo. 14, 28 S. W. 160; State v. Jewell, 90 Mo. 467, 3 S. W. 77; State v. Dusenberry, 112 Mo. 278, 20 S. W. 461. This point, also, should be ruled against the plaintiff; and, in determining this point, it is not wholly immaterial or irrelevant to consider the nature of the petition, and its singular failure to set forth any grounds for enjoining the collection of the garnishment judgment.

Of course, if the previous rulings are correct, it must follow that that which refused to set aside the judgment of nonsuit was also correct. The judgment should be affirmed. All concur.

CITY OF ST. LOUIS v. LANG et al. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

CHANGING STREET GRADE-PROCEEDING To Assess DAMAGES-PETITION-EXCEPTIONS-ANSWER

-DEFAULT JUDGMENT-DAMAGES.

1. The petition in a proceeding under Rev. St. §§ 1815-1821, to assess damages and benefits for change of street grade, by alleging that a certain ordinance, defining the limits within which private property had been or would be benefited by the grading of the street, was "duly enacted," inferentially states (which is sufficient as against a motion in arrest) the passage of an ordinance for the grading of the street; the charter providing that no grading of a street can be ordered except by ordinance, and the court being required by the constitution and the charter to take judicial notice of the provisions of the charter.

2. Under Rev. St. § 1818, providing that the report of commissioners to assess damages and benefits for changing grade of street may be reviewed by the court on exceptions filed within 10 days after filing thereof, exceptions filed thereafter are properly stricken out.

3. Though, in a proceeding under Rev. St. § 1815, to assess damages and benefits for change of street grade, defendant may file answer,-defendants, under section 2042, having the right, whatever the form of action or method of procedure,-it must be filed seasonably, and leave to file answer, not asked till after expiration of time to file exceptions, is properly

refused.

4. A judgment in a proceeding under Rev. St. §§ 1815-1821, to assess damages and benefits for change of street grade, for want of an answer filed in due time, will have the same force and effect as in any other proceeding.

5. Damages for change of street grade will be assessed according to the provisions of the constitution, which went into effect after the passage of the ordinance establishing the changed grade, but before any action was taken to carry the ordinance into effect.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Proceeding by the city of St. Louis against Farcas Lang and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Broadhead & Hezel, for appellants. W. C. Marshall, for respondent.

SHERWOOD, J. On March 18, 1892, the plaintiff city instituted this proceeding, under sections 1815 to 1821, inclusive, Rev. St. 1889, to assess the damages and benefits caused by changing the grade of Hickory street between Mississippi and Armstrong avenues. Prior to that the city, on the 18th of January, 1875, by Ordinance No. 9295, entitled "An ordinance to establish the grade of Hickory street between Mississippi avenue and Armstrong avenue," fixed the grade by establishing the same at a point 245 feet west of the west line of Mississippi avenue, at an elevation of 80 feet above the city directrix. Subsequently thereto, to wit, on October 31, 1891, the city passed an ordinance (No. 16,454) whereby were defined the limits within which private property would be benefited by the grading of Hickory street, as aforesaid. Upon institution of this proceeding all persons who would suffer damages,

and all persons within the benefit district whose property would be benefited, were made parties defendant, and properly brought into court. Thereafter such steps were taken in conformity with law as resulted in the filing of a report by properly appointed commissioners. More than 10 days after the filing of this report, defendants filed exceptions to the report, which exceptions were stricken out, on motion of plaintiff, because not filed in time, as required by section 1818, Rev. St. 1889. Thereupon defendants asked leave to file an answer, but the court refused to grant such leave. Subsequent to this the trial court approved and confirmed the report of the commissioners, and because of the failure of defendants, within the time allowed by law, to file any answer to the petition, or any exceptions to the report of the commissioners, the averments of the petition were by the lower court taken as confessed, and judgment entered accordingly. The petition, after appropriate reference to Ordinance 9295, establishing the grade of Hickory street as heretofore stated, proceeds thus:

"That thereafter, to wit, on the 31st day of October, 1891, there went into force and effect an ordinance of said city of St. Louis, duly enacted by the municipal assembly thereof, upon the unanimous recommendation of the board of public improvements, in writing, and approved by the mayor of St. Louis,

ordinance to define the limits within which private property has been or will be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue, which ordinance is numbered 16454, and is in words and figures following, to wit. (16454):

""An ordinance to define the limits within which private property has been or will be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue.

"Be it ordained by the municipal assembly of the city of St. Louis, as follows:

"Section 1. The real estate situated within the following boundaries is hereby declared to have been or to be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue to the grade established by ordinance nine thousand two hundred and ninety-five, approved January eighteenth, eighteen hundred and seventyfive, to wit,' etc.

"Plaintiff further states that it is necessary to grade Hickory street between Mississippi and Armstrong avenues to conform to the grade established by the ordinance aforesaid, and for the purpose of constructing and improving said street; that the owners of the property affected by said improvement have refused to consent thereto, and that plaintiff is unable to agree with said owners for the proper compensation for the damages done or likely to be done or sustained by reason of such improvement; and that, by reason of the legal incapacity of the minor defendants •

herein, such compensation cannot be agreed upon. Plaintiff further states that the general nature of the work of improvement aforesaid is to conform the grade of said Hickory street between said Mississippi avenue and Armstrong avenue to the other portions of Hickory street, and in so doing to fill in some places and to cut down in other places, thereby changing the natural condition of the land. Plaintiff further states that the defendants above named are in actual possession of the premises to be affected, either by being damaged or by being benefited, or have a title to said premises appearing of record, and lying within the benefit district established by said Ordinance No. 16,454."

The sections of the statute already referred to, which control this cause, are as follows: Section 1815 provides that: "In all cases where the proper authorities in any city in this state, shall have graded or regraded, or may hereafter grade or change the grade or lines of any street, or alley, or in any way alter or enlarge the same, or construct any public improvement, thereby causing damage to private property for public use within the meaning of sec. 21, of art. 2, of the state constitution, without the consent of the owner of such property, or in case they fail to agree with the owner thereof for the proper compensation for the damages so done, or likely to be done or sustained by them, or if, by reason of the legal incapacity of such owner, no such compensation can be agreed upon, the circuit court having jurisdiction over the territory embraced in such city, or any judge thereof in vacation, on application by petition, either by the city authorities or the owner of the property for which damage is claimed, or any one on behalf of either," is authorized to appoint commissioners to assess the damages and benefits. This section further provides that: "The petition shall set forth the general nature of the work or improvement causing damage to private property for public use, as aforesaid, together with all the facts necessary to give the court jurisdiction in the premises, the names of the owners of the several lots or parcels of land to be affected thereby, if known, or if unknown, a correct description of the parcels whose owners are unknown." It is further provided in said section that upon the filing of such petition a summons shall issue, etc. It further requires that, before the city institutes a proceeding under this act, it shall by ordinance define the limits within which private property is benefited by the change. Sections 1816 and 1817 relate to the method of assessing damages and benefits, and to the report of the commissioners. Section 1818 provides that: "The report of the commissioners may be reviewed by the circuit court on written exceptions, filed by any party, in the clerk's office, within ten days after the filing of such report, and the court shall make such order therein as right and justice may require, and may order a new commission on

good cause shown, but the hearing of such exceptions shall be summary, and the court shall fix a day therefor without delay. Any party shall be entitled to have the damages assessed by a trial by jury, as at common law, upon claiming the right in the exceptions to the report of the commissioners." Section 1821 provides as follows: "In all cases where the city authorities have graded or regraded, or changed the grade or lines of any street or alley, or may hereafter grade or change the grade or line of any street or alley, without the consent of the owner, or where the compensation cannot be agreed upon, and do not, before the commencement of the work, institute proceedings, or have not instituted proceedings, to have the damages ascertained and assessed, as provided in the six preceding sections, the owner shall be entitled to an action at law against the city, town or village, to ascertain and recover the amount of damages caused by such improvement."

1. It is insisted on behalf of defendants that the lower court acquired no jurisdiction in the premises because of the fact that the petition fails to set forth the passage of Ordinance 14900, approved March 26, 1889, authorizing Hickory street, from its present western terminus, to be partially graded, and making provision for the cost of such improvement. It certainly would have made the point of jurisdiction, or rather of the validity of the petition, much easier of solution, had the ordinance last mentioned been pleaded; but the question here presented is, is the petition sufficient without that course being pursued? In other words, is the passage of such an ordinance a condition precedent to the institution of the proceeding at bar, and of consequence the statement of such passage a necessary ingredient in the make-up of a petition in a case of this sort? Assuming for argument's sake that it is, let us look at the situation presented by this record, together with such questions as naturally present themselves for consideration in connection therewith, to wit: The constitution of this state (article 9, § 21), requires that we take judicial notice of the charter of the city of St. Louis, and a like requirement is made in the charter itself. Looking, then, to the charter, we find that the only power the city authorities have as to the grading of streets is that which must be expressed in the form of an ordinance. Charter, art. 3, § 26. and article 5, § 14. Looking, then, to the petition, we find that it makes a direct statement that Ordinance 16454 had been "duly enacted," and that it was an ordinance to define the limits within which private property had been or would be benefited by the grading of Hickory street between Mississippi avenue and Armstrong avenue. And, on looking to the caption as well as to the first section of that ordinance, we find similar dec larations made as to the grading of Hickory 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, § 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 observations 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 9295: "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. Renè 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 established grades. The ascertainment of the grading lines throughout the new street is then a mere matter of mathematical engineering. The original monument erected by Paul remained in place until about 1890, when it was removed during the construction of one of the railways on the levee; but its elevation has been transferred to permanent structures in various parts of the city, and still remains the standard of municipal levels."

stake at the fence on east line of an alley; thence south along said fence thirty-nine and one-half (392) feet to a corner of said fence; thence in a northerly direction, parallel to center line of said railroad, one hundred and fifty-seven (157) feet to a stake for corner; thence in a southeasterly direction, at right angles to said railroad, thirty-two and onehalf (322) feet to stake for corner; thence in a northeasterly direction, parallel to said railroad, fifty-two (52) feet to stake for corner; 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.

FORDYCE et al. v. RAPP. (Supreme Court of Missouri, Division No. 2. Dec. 3, 1895.)

CONVEYANCE BY RAILROAD-DESCRIPTION-SUFFI

CIENCY-WARRANTY-AFTER-ACQUIRED
TITLE-INSTRUCTION.

1. Where a conveyance is made by deed of general warranty, any title to the land subsequently acquired by the grantor will, by operation of law, inure to the grantee or his assigns.

2. Land on which a railroad company has placed a depot and side tracks will pass under a deed conveying all its property except that "not necessary for or used or acquired" for operation of its road.

3. A deed by a railroad company describing the property as "all the railroad" of the grantor through certain counties, and "all its lands, and rights of way, depot and depot grounds, *** together with all the real estate *** of said railway company, * * * wherever situated, * * *" is sufficient to transfer title to a tract of land in one of the counties named, a part of a larger tract acquired for a right of way, on which the company had placed a depot

and tracks.

4. The refusal to instruct on an issue in the pleadings conclusively shown by the evidence is proper.

Appeal from circuit court, Dunklin county. Action of ejectment by S. W. Fordyce and another, receivers, against John G. Rapp. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action of ejectment by plaintiffs, as receivers of the St. Louis, Arkansas & Texas Railway Company, for the possession of the following. described tract of land ly- | ing in Dunklin county, to wit: "A part of the northeast quarter of the northwest quarter of section fifteen (15), in township No. twenty-two (22) north, of range No. ten (10) east, and by metes and bounds as follows: Beginning at a point on Madison street in the city of Malden, as the same appears upon the plat of said city, on file in the recorder's office of Dunklin county, Missouri, on the west line of said street, one hundred and sixty-seven (167) feet from the center line of the track of the Saint Louis, Arkansas and Texas Railroad, measured out at right angles to same, an iron rod for corner mark; thence in a southwesterly direction, parallel to center line of said railroad, one hundred and sixty-seven (167) feet distant from same, two hundred and thirty-four (234) feet to a

petition is in the usual form, and the answer a general denial. From a judgment in favor of plaintiffs, defendant appealed.

Wilson Cramer, for appellant. W. S. C. Walker, W. H. Miller, and Sam. H. West, for respondents.

BURGESS, J. Both parties claim title under J. R. Beckwith, but as defendant, in his brief, contends that plaintiffs never acquired the title, it becomes necessary to set out the title claimed by the respective parties plaintiff and defendant in full. Plaintiffs offered evidence as follows:

A deed from Jacob R. Beckwith and wife to the Little River Valley & Arkansas Railway Company, dated August 31, 1881, and recorded September 13, 1881, reciting that grantors "grant, bargain, and sell, convey and confirm" the following land: "Beginning at a point in the west line of the highway known as the 'Clarkton Road,' one hundred and fifty feet south of the north line of Sec. fifteen, township twenty-two, range 10 east; thence southwesterly, parallel with the main track of the Little River Valley and Arkansas R. R. Co. of Mo., five hundred and eightyfive feet; thence southeasterly (at right angles with said main track, one hundred and seventeen feet; thence southwesterly), parallel with and fifty feet from said main track, seventy-eight feet; thence south one hundred and twenty feet; thence northeasterly, parallel with said main track, one hundred and forty-three feet; thence southeasterly, at right angles with said main track, one hundred feet; thence northeasterly, parallel with said main track, to west line of said highway, known as 'Clarkton Road'; thence north, along west line of said Clarkton road, to point of beginning,-containing three and 63/100 acres, more or less." A deed in the same form from Jacob R. Beckwith and wife to Cora A. Hill and George B. Clark, dated July 2, 1881, and recorded July 7, 1881, conveying the following land: "The undivided two-thirds interest in and to fifteen acres. of land off of the east part of the northeast quarter of the northwest quarter of section fifteen (15), in township twenty-two (22) north, of range No. ten (10) east." A deed in the same form from Cora A. Hill and husband, E. W. Hill, to the Little River Valley & Arkansas Railway Company, dated August

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