injuring her. Other facts pertinent to questions presented by appellant's counsel are stated in the course of the opinion. Appellant contends that: (1) In specified particulars the evidence is insufficient; and (2) the instruction the court held erroneous is sound. [1] I. It is contended the fact the beams were piled upon an unimproved part of the street exculpates the city. "The obligation of a city to keep its streets and sidewalks in repair is not limited to defects existing in the street." Campbell v. Chillicothe, 239 Mo. loc. cit. 461, 144 S. W. 408, 39 L. R. A. (N. S.) 451, and cases cited; Shippey v. Kansas City, 254 Mo. 1, 162 S. W. 137. These cases show cities are held liable for injuries resulting from their negligently suffering structures and excavations to exist on private property adjacent to a street. This rule is broad enough to include that portion of the street shown in this case to lie between the sidewalk and the property line. [2] II. It is urged there is no evidence the beams were negligently piled. There was evidence the beams mentioned were I-beams of lengths ranging from 6 to 14 feet; that they were of different sizes as well as lengths, the webs being of different widths, and therefore the flanges being of different widths; they were loosely piled and were not laid evenly, one upon the other, but, to some extent, were piled irregularly and somewhat crosswise; the pile was 42 feet high and that wide or wider at the base, and the face of the pile fronting the street was slanting, the degree of slant being variously indicated by the witnesses; the top of the pile was two or more feet wide. the temporary use of a street in loading and unloading material, etc. Corby v. Railroad, 150 Mo. loc. cit. 469, 52 S. W. 282. Further, that rule does not protect from damages for a use which is in its nature negligent and endangers those lawfully using the street. Obviously, if the pile of beams was dangerous by reason of being negligently made, and remained for weeks near the sidewalk, it does not fall within the principle permitting temporary use for purposes of the sort mentioned. [4, 5] IV. It is urged there was no evidence tending to show notice to the city. There was evidence the pile of beams in question stood at the same place for seven or more weeks before respondent was injured. It was upon a strip of ground adjacent to the sidewalk upon which respondent was standing, which sidewalk was a part of a paved and traveled city street. Actual notice was not necessary, and seven weeks is a sufficient time, in the circumstances, at least to take the question of constructive notice to the jury if the pile of beams in fact presented the appearance plaintiff's evidence tended to prove it did. Shippey v. Kansas City, supra; Straub v. St. Louis, 175 Mo. loc. cit. 416, 75 S. W. 100. It also follows from the authorities cited that the instruction requiring actual notice was erroneous. The judgment is affirmed, and the cause remanded. All concur. DONOVAN v. GIBBS. (Supreme Court of Missouri, Division No. 1. June 2, 1916.) 1. ATTACHMENT 265-ATTACHMENT AGAINST NONRESIDENT-DISSOLUTION BY ANSWER TO MERITS-STATUTE. Under Rev. St. 1909, § 2298, authorizing but providing that, when any writ of attachment attachments without bond against nonresidents, has issued against a nonresident, and plaintiff has given no bond, the attachment shall be dissolved as of course upon defendant's entering its, a nonresident defendant's plea to the jurishis appearance and filing his answer to the merdiction did not affect the attachment. From this testimony it is reasonably inferable this pile of I-beams was of unstable equilibrium, and that the falling or rolling down of some of them was reasonably to be anticipated. In the case of Bowman v. Foundry Co., 226 Mo. 53, 125 S. W. 1120, the petition charged that a pile of pig iron which fell and injured plaintiff "had been so piled and placed as that it was liable to fall over at any time," but plaintiff offered no evidence tending to show any defect in the piling of the iron. The court indicated that a showing the pile was leaning or was not compact should have been made, or that expert testimony showing, if true, that the height of the pile rendered it dangerous, was necessary. The tendency of the evidence in this case to show the loose, irregular, and slant-attachments without bond against nonresidents, ing piling of beams of irregular lengths, widths, thicknesses, and weights meets the requirement of the rule in the Bowman Case. The evidence was sufficient to take the case to the jury, so far as concerns the showing as to the negligent piling of the beams. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 945-947; Dec. Dig. 265.] 2. ATTACHMENT 265-ATTACHMENT AGAINST NONRESIDENT-DISSOLUTION BY ANSWER TO MERITS-STATUTE-"OF COURSE." Under Rev. St. 1909, § 2298, authorizing ment has issued against a nonresident, and but providing that, when any writ of attachplaintiff has given no bond, the attachment shall be dissolved as of course upon defendant's entermerits, where a nonresident defendant, against ing his appearance and filing his answer to the whom attachment had issued without bond, filed his answer, the attachment was not automatical[3] III. It is clear the use of the streetly dissolved, it being incumbent for defendant shown in this case cannot be held, as a mat- any action or step taken in the course of ju to move for dissolution, since "of course" means ter of law, to fall within the rule permittingdicial proceedings, which will be allowed by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes court upon mere application without inquiry [Ed. Note. For other cases, see Attachment, 3. EVIDENCE 82-PRESUMPTIONS-JUDICIAL In suit to quiet title, where defendant's title depended on the validity of a sale under judgment in a suit by attachment against the party who was plaintiff's and defendant's common source of title, the Supreme Court must presume that the trial court in the attachment suit acted in accordance with the law. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 104; Dec. Dig. 82.] a general denial by way of answer, no ruling having been had or asked on his plea to the jurisdiction, and no leave to file answer having been asked or given so far as the record shows. On November 30, 1909, the court rendered judgment in the attachment proceedings reciting: "Now on this day, this cause coming on to be heard, the judge of this court, having previously heard the evidence of witnesses and the argument of counsel, and having taken the case under advisement [italics ours], finds the issues for the plaintiffs in the sum of two hundred dollars." Then follows an ordinary judgment by attachment declaring a lien upon the land at4. ATTACHMENT 265-ATTACHMENT AGAINST tached in that suit and involved in this. NONRESIDENT-DISSOLUTION-STATUTE. Sale Under Rev. St. 1909, § 2298, authorizing Vickery called neither his plea nor his anattachments without bond against nonresidents, swer to the attention of the court in that but providing that, when any writ of attach- case, nor did he move to dissolve or ask disment has issued against a nonresident, and solution of the attachment or vacation of the plaintiff has given no bond, the attachment shall attachment proceedings. Neither did he apbe dissolved as of course upon defendant's entering his appearance and filing his answer to peal from the attachment judgment. the merits, in suit by attachment against a non- was regularly made under that judgment, resident, in which plaintiff gave no bond, and Stephens and Horsman purchased the where the cause had been taken under advise- land and took possession. Subsequently, for ment by the court when defendant's answer was filed, the filing of the answer, without leave and full price, they sold to defendant, who took without setting aside the submission of the case, possession and thereafter expended nearly did not render applicable the proviso of the $2,000 in money and labor improving the statute, though construed to automatically dissolve the attachment upon filing of defendant's land, erecting a dwelling, barns, fences, digging wells, clearing, making a pond, etc. When attached the land was subject to a deed of trust for $500 which Stephens and Horsman paid, and which sum appellant does not offer to repay. April 19, 1909, some months after the attachment suit was begun, and some time after service by publication was had, B. P. Vickery and wife executed a deed, recorded April 23, 1909, purporting to answer. [Ed. Note. For other cases, see Attachment, Cent. Dig. §§ 945-947; Dec. Dig. 265.] Appeal from Circuit Court, Dent County; L. B. Woodside Judge. Suit by Walter Donovan against James H. Gibbs. From a judgment for defendant, plaintiff appeals. Judgment affirmed. G. C. Dalton, of Salem, for appellant. W. convey the attached property to Wm. B. P. Elmer, of Salem, for respondent. Vickery, who lived in the same town in Illinois with B. P. Vickery. May 3, 1909, Wm. B. Vickery and wife conveyed to Anna B. Vickery, also of the same town. September 8, 1909, Anna B. Vickery and husband, B. P. Vickery, who had then removed to South Bend, Ind., in consideration of $1, conveyed to appellant, also of South Bend. Appellant then had knowledge of the pendency of the attachment suit. Neither appellant nor any one of the Vickerys testified in this case. BLAIR, J. This is a suit under section 2535, R. S. 1909, to adjudge and quiet title to lot 2 of the northwest quarter and the north half of lot 2 of the southwest quarter of section 31, township 35 north, of range 5 west, in Dent county. The Dent circuit court rendered judgment for defendant, and this appeal followed. B. P. Vickery is the agreed common source of title. Appellant claims through mesne conveyances from B. P. Vick- [1] Appellant's sole contention is that the ery, having obtained a deed in September, filing of Vickery's answer in the attachment 1909. Respondent claims title under deed suit on November 29, 1909, ipso facto instantfrom Stephens and Horsman, whose title de-ly dissolved the attachment, and as instantpended upon the validity of a sale under ly freed the attached land from the lien, and judgment in a suit by attachment they be- that his title under his deed of September gan against B. P. Vickery November 5, 1908. 8, 1909, is consequently one in fee simple, The ground of attachment was Vickery's non-unaffected by the sale in the attachment proresidence. No attachment bond was given. ceedings. This contention is grounded upon Service was had by publication. On April the proviso in section 2298, R. S. 1909. That 21, 1909, Vickery, appearing solely to question the jurisdiction, filed a motion in the cause. On April 22, 1909, alias summons was served in Dent county on Vickery, who was temporarily there. The cause was continued, and was heard at the next term of court. On November 29, 1909, Vickery filed section authorizes attachments without bond against nonresidents, but provides that: "When any writ of attachment has issued against a nonresident, and the plaintiff has given no bond, the attachment shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It is obvious the plea to the jurisdiction | ment is a right to a vacation of all proceeddid not affect the attachment, since the stat-ings "touching the property and effects atute makes an "answer to the merits of the tached and the garnishee summoned" (seccase" a condition precedent to whatever re- tion 2342, R. S. 1909), and this also implies lief the proviso affords one within its scope. court action. That such attachment defendDid the filing of the answer automatically ant is entitled, upon answering, to such disdissolve the attachment? solution of the attachment and vacation of proceedings, and may secure it upon application, does not sustain the contention that the filing of the answer in itself works a dissolution and vacation, unless we disregard cited. [2] 1. In Brown v. McKown, 265 Mo. 335, 176 S. W. 1043 et seq., we recently had occasion to consider the effect of the proviso in section 2298, but what was said in that case was not directed to the point appellant the principle laid down in the authorities now presents. The question here is whether the quoted language of the proviso means [3,4] 2. We must presume the trial court that the filing of an answer to the merits, in acted in accordance with the law. Therefore, a case to which it applies, of itself, dissolves even if it could be conceded appellant's conthe attachment without application to or ac- struction of the statute is correct, yet the tion by the court, and without any further record shows the cause was taken under adstep of any kind. The words to be construed visement some time prior to the rendition are "shall be dissolved as of course." Had of judgment on November 30, 1909. The recthe Legislature intended to provide that up-ord being silent, so far as appears here, as on the filing of an answer in such a case the to the date on which the cause was taken unattachment should, when answer was filed, der advisement, we can presume, in aid of thereby stand dissolved, and the attachment the judgment, that it was under advisement proceedings thereby stand vacated, we think it would have used words clearly stating that meaning. The language actually used ordinarily implies further action by the court or the party entitled to the benefit of such a provision. Black's Law Dictionary thus defines the words "of course": Bouvier's Law Dictionary defines the same words thus: "That which may be done in the course of le gal proceedings without making any application to the court; that which is granted by the court, without further inquiry, upon its being asked." (italics are ours.) In Yates v. People, 6 Johns. (N. Y.) loc. cit. 359, it was held that the words "of course" mean "according to the course and practice of the court." This was said in discussing writs issuable of course. In Merchants' Bank of St. Joseph v. Crysler, 67 Fed. loc. cit. 390, 14 C. C. A. 446, in discussing motions "of course" in equity, the United States Circuit Court of Appeals for this circuit said such motions were those granted "without the court being called upon to investigate the truth of any allegation or suggestion upon which they are founded." Stoddard v. Treadwell, 29 Cal. 281, it was held that a statute providing for costs following judgments "of course" meant "as a matter of right." In when Vickery's answer was filed on November 29, 1909. Indulging this presumption, we are of the opinion that in such circumstances the filing of the answer without leave and without setting aside the submission could not render applicable the proviso of section 2298, even though it be construed as appellant desires. The judgment is affirmed. All concur; BOND, J., in paragraph 2 and result. -- Su 1. COURTS 231(51) JURISDICTION [Ed. Note.-For other cases, see Courts, Cent. Dig. § 659; Dec. Dig. 231(51).] 2. APPEAL AND ERROR 840(1)-REVIEWSCOPE QUESTION APPEALED FROM-AMOUNT OF RECOVERY. Where defendant in personal injury suit acquiesced in judgment for plaintiff, the judgment was conclusive as to his negligence and plaintiff's freedom from contributory negligence, and the only question on plaintiff's appeal was the adequacy of the judgment. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. 840(1).] 3. EVIDENCE 192-ADMISSIBILITY-Demon These authorities warrant the conclusion that the language of the proviso is not susceptible of the meaning now attributed to it STRATIVE EVIDENCE-AUTOPTIC PROFerence. by appellant. We hold that, if in an attach- In a personal injury suit, autoptic proferment proceeding defendant desires the bene-ence of the plaintiff to show the extent of his fit of the proviso of section 2298, R. S. 1909, conclusive. injuries is of probative force, which may be it is incumbent upon him to move therefor. [Ed. Note.-For other cases, see Evidence, One effect of the dissolution of an attach-Cent. Dig. § 677; Dec. Dig. 192.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4 DAMAGES 185(1)—EVIDENCE-PERSONAL | Appeals denied, and judgment affirmed, and [Ed. Note. For other cases, see Damages, Cent. Dig. 88 503, 505, 508; Dec. Dig. injuries sustained through the alleged neg185(1).] This action was originally brought in Carroll county, Mo., by plaintiff, a practicing physician, against defendant, the owner of an automobile, for damages on account of ligence of defendant in operating his machine, through his nephew, in such manner as to cause plaintiff's team to become unmanageable, break his buggy wheel, throw him to the ground, and thereby cause him permanent injury. Plaintiff, upon a trial of said cause in the circuit court of Carroll county aforesaid, obtained a verdict before 6. NEW TRIAL ~~75(4)—Grounds—PersonaL a jury for $5,000. Defendant duly appealed INJURIES-INADEQUACY OF DAMAGES. Where damages awarded by verdict are grossly inadequate, it is the duty of the court to interfere, and new trial may be granted. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 152; Dec. Dig. 75(4).] 7. DAMAGES 95 PERSONAL INJURIES AMOUNT OF COMPENSATION. In a personal injury action, plaintiff, on proving his case, is entitled to full compensation, regardless of what defendant should pay. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. 95.] & APPEAL AND ERROR 1068(1)-SCOPE OF REVIEW-HARMLESS ERROR-INSTRUCTIONS— CURE BY Verdict. Plaintiff, who recovered judgment, cannot complain of erroneous instructions as to negligence or contributory negligence, such questions having been resolved in his favor by the jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4225; Dec. Dig. 1068(1) ; Trial, Cent. Dig. §§ 475, 480, 525.] 9. APPEAL AND ERROR 856(5)-SCOPE OF REVIEW-GROUNDS OF DECISION. Where the court, in sustaining motion for new trial on specific grounds which were erroneous, impliedly overruled all other grounds, it was the party's right to have such other grounds examined on defendant's appeal from the order granting new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3408, 3410, 3423, 3424; Dec. Dig. 856(5).] 10. APPEAL AND ERROR 856(5)-SCOPE OF REVIEW-GROUND OF DECISION. If the motion for a new trial contains several grounds, and the court sustains it as to one ground, without passing upon the others, the court on appeal will not overturn its decision, even if the ground on which it was sustained was not well taken, provided the record contains substantial evidence that the motion for a new trial ought to have been sustained upon some other ground alleged therein. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3408, 3410, 3423, 3424; Dec. Dig. 856(5).] the case to the Kansas City Court of Appeals. The latter, on account of errors occurring during the progress of the trial in the circuit court aforesaid, reversed and remanded the case. The opinion in above cause was written by Judge Ellison, and will be found reported in 163 Mo. App. 718, 147 S. W. 512, and following. A change of venue was taken, and said cause transferred to the Chariton circuit court, where another trial was had before a jury, resulting in a verdict and judgment for plaintiff for $250. Being dissatisfied with the result of the last trial, plaintiff, in due time, filed his motion for a new trial. The latter, among other grounds, contains the following: "Third: Because the verdict is against the law and the evidence. "Fourth: Because the verdict is against the evidence and against the greater weight of the evidence. On March 27, 1913, the Chariton circuit court, by its entry of record, disposed of said motion for a new trial as follows: "Now come the parties hereto and the motion for new trial heretofore filed is taken up and heard by the court, and by the court sustained, on account of giving instructions No. 12 and 16 given on part of defendant, and on account of excluding evidence of Murl Burruss, Flora Burruss and W. G. Holms, offered by plaintiff in rebuttal and objected to by defendant." Defendant, in due time, filed his motion to set aside the above order, which was overruled and an appeal granted him, to the Kansas City Court of Appeals, from the or Appeal from Circuit Court, Chariton Coun- der and judgment of said court in sustaining ty; Fred Lamb, Judge. plaintiff's motion for a new trial, and granting plaintiff a new trial. Action by M. W. Craton against Noah Huntzinger. Judgment for plaintiff, and On May 12, 1915, appellant filed in the from the order granting new trial on the Court of Appeals aforesaid a motion to plaintiff's motion, and denying motion to set transfer the cause to this court-after Judge aside such order, defendant appealed to the Ellison had filed his opinion on May 5, 1915, Court of Appeals, which transferred the affirming the judgment of the Chariton circause to the Supreme Court (177 S. W. 816). cuit court, in granting plaintiff a new trial Motion to remand the cause to the Court of -on the ground that the amount in dis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 187 S.W.-4 pute is in excess of $7,500, etc. This motion, tiffs a new trial. Plaintiffs thereupon apwas resisted by respondent, and briefs were plied to this court for a writ of mandamus, filed in the Court of Appeals by both plain- to compel respondent to proceed with the tiff and defendant on this subject. Upon a trial of said cause, as judge of the trial full consideration of this question, Judge court, on the ground that no appeal bond Trimble, in behalf of the Court of Appeals, had been given, and by reason thereof, the in which all of the judges of said court con- proceedings in said cause had not been stay. curred, filed an opinion, transferring said ed by said appeal. The question before us cause to this court. Judge Trimble's opinion was whether, under the statute, an appeal will be found reported in 177 S. W. at pages from an order of the circuit court granting 816 and following. The mandate of the a new trial without bond, stayed the trial Court of Appeals, and the record in said of the cause in the circuit court, pending decause, were filed in this court on June 28, fendant's appeal from the order granting 1915. plaintiffs a new trial. In referring to section 2246, R. S. 1889, as modified by the acts of 1891, 143 Mo. 68, 44 S. W. 741, Judge Brace, speaking for the Supreme Court, said: On October 12, 1915, respondent filed herein a motion to remand said cause to the Court of Appeals, on the ground that the latter alone has jurisdiction of the cause. Suggestions in support of above motion were filed by plaintiff. On the same day, respondent filed his motion to advance said cause, which was sustained, and the case set for argument in this division on April 13, 1916. The cause was argued in this court on above date by counsel for both plaintiff and defendant. W. W. Rucker and Roy W. Rucker, both of Keytesville, and Lozier & Morris, of Carrollton, for appellant. J. A. Collet, of Salisbury, and James F. Graham and Jones & Conkling, both of Carrollton, for respondent. RAILEY, C. (after stating the facts as above). [1] I. It becomes necessary for us at the outset to determine whether this court has jurisdiction over the cause, or whether respondent's motion to transfer same to the Court of Appeals should be sustained. The conclusion reached in the very clear and logical opinion delivered by Judge Trimble in the Court of Appeals, sustaining appellant's motion to transfer the cause to this court, reported in 177 S. W. 816 et seq., meets with our approval. "Thereupon it becomes the duty of the court to make an order allowing the appeal, as requirorder is to transfer the jurisdiction of the case ed by section 2246, supra. The effect of which from the circuit court to the appellate court, from the operation of which, however, is excepted the execution on the judgment appealed from In other words, the effect of the order granting in all cases except those stated in section 2249. the appeal is to suspend all further exercise of which the appeal is taken and to transfer the judicial functions in the case by the court from same to the appellate court, where further judicial proceeding is continued until the case is disposed of." The above announcement of the law relating to this subject has been followed by the subsequent decisions of this court. Young v. Young, 175 S. W. loc. cit. 586; Reed v. Bright, 232 Mo. loc. cit. 415, 134 S. W. 653, and cases cited. It logically follows from the foregoing cases that if the entire controversy between plaintiff and defendant is transferred to the appellate court by virtue of defendant's appeal herein, then the rights of both litigants must be considered in disposing of the case. If defendant's theory alone be considered and sustained, the trial court In the case before us, the defendant was had no right to set aside the verdict of the satisfied with the judgment for $250 render- jury for $250. Considered without any refed against him. The plaintiff was dissatis-erence to plaintiff's rights, the Court of Apfied with same judgment and asked for a peals would have exclusive jurisdiction of new trial. The court below sustained plain- the case. On the other hand, if the appeal tiff's motion and granted him a new trial. If this action of the court be sustained, plaintiff's cause of action for $25,000 stands as though no former trial had ever taken place. On the other hand, if defendant's contention is well founded, and it should appear to the Appellate Court that a new trial was improperly granted, then it would clearly appear that the amount in dispute was only $250, and the Court of Appeals alone would have jurisdiction. The defendant, however, appealed from the order granting respondent a new trial in the case. be considered without regard to the rights of defendant and based alone upon the rights of plaintiff, then this court would have jurisdiction, as the amount in dispute, would be in excess of $7,500. In the case before us, the plaintiff is strenuously insisting that his judgment for $250 has been set aside, and that he now occupies the same position which he held before the trial occurred, and is entitled to assert his claim for $25,000. As the case now stands, the defendant is seeking to have the original judgment for $250 reinstated. In State ex rel. Patton et al. v. Gates, The entire record has been brought before Judge, 143 Mo. 63, 44 S. W. 739, the trial the court, in order that the tribunal exerciscourt directed a verdict for defendant on ing appellate jurisdiction may pass upon the the merits. Plaintiffs filed a motion for a relative rights of both parties to the litiganew trial, which was sustained and defend- tion. In order to determine these rights, ant appealed from the order granting plain-it will be necessary to consider plaintiff's |