Sections 147 and 148, which must be read together, provide as follows: "Sec. 147. If any person die leaving land incumbered by mortgage or deed of trust, or any lien whatever, or owning any equity of redemption, or leaving mortgaged or pledged any personal property, and shall not have devised the same or provided for redemption thereof by will, the court shall have power, if, in its judgment, it will promote the interests of the estate and not be prejudicial to other creditors, to order executor or administrator to redeem the same out of the personal assets of the estate, or to order the sale of other real estate to re The relators contend that, under the facts, were a proceeding under section 150 et seq., the probate court was without jurisdiction such failure would defeat the jurisdiction of to make the order of sale. This contention the probate court. Hutchinson v. Shelley, presents the only question necessary for con- 133 Mo. 400, 34 S. W. 838. sideration, namely, Did the probate court act within its jurisdiction? Our writ of prohibition does not issue to restrain a court, acting within the limits of its jurisdiction, from committing error, nor to correct errors after they are committed. Such erroneous rulings, if any, can be corrected only on appeal. Under our system of practice this rule is essential, however desirable it might be in particular instances to lay it aside. This court, in a case involving an order of the probate court to sell real estate, defines jurisdictions as follows: "Jurisdiction may be defined to be the right to adjudicate concerning the subject-matter in a given case. То constitute this, there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and, third, the point decided must be, in substance and effect, within the issues. Munday v. Vail, 34 N. J. Law, 422.” Stark v. Kirchgraber, 186 Mo. loc. cit. 645, 85 S. W. 872, 105 Am. St. Rep. 629. I think there can be no question as to the existence here of the first and third essen tials as defined above. The probate court is given authority, by statute, to order the sale of real estate in a proper case. Under sections 150 and 134, real estate may be ordered sold to pay debts. Under section 143, the interest of the estate in real estate, which has been purchased but not fully paid for, may be ordered sold. Sections 147 and 148 provide for the sale of real estate for the purpose of redeeming mortgaged land, and also (section 148) for selling the equity of redemption. In Jackson v. Magruder, 51 Mo. 55, speaking of statutes similar to the one cited, it is said: "Under our administration of law as it stood when this sale was made, and as it still exists, the county court had the power to order land to be sold for the purpose of redeeming mortgages on other lands, or the courts might make a special order to sell the equity of redemption of the mortgaged premises. But the court also had the power, on application of the administrator or a creditor of the estate, to make a general order for the sale of the real estate for the payment of debts, embracing equities of redemption and all other interests in lands." In State, to Use, v. Schleiffarth, 9 Mo. App. loc. cit. 433, this is said: "The statute provides (sections 143, 144 [R. S. 1879]) that, when any person dies owning an equity of redemption, the probate court may order the administrator to redeem the property out of the personalty, or by the sale of other real estate, or may order the equity of redemption to be sold." Were the proper parties before the court? No notice was given to the heirs as required deem such land or personal property so incumbered, and also to order the executor or administrator to mortgage or pledge any personal property of the estate in his hands for the purpose of raising and providing money with which to redeem said premises so incumbered. "Sec. 148. If such redemption would injure the estate or creditors, or if there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public or private sale." No provision is made for any notice to heirs in a proceeding under these sections. We have been cited to no case involving the construction of said sections, and, after diligent search, I have found none. Sections 142 and 143 are closely related to sections 147 and 148, and involve the same proceedings under substantially similar conditions. They are as follows: "Sec. 142. If any person die, having purchased real estate, and shall not have completed the payment, nor devised such real. estate, nor provided for the payment by will, and the completion of such payment would be beneficial to the estate and not injurious to creditors, the executor or administrator, by order of the court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate. "Sec. 143. If the court believe that, after the payment of debts, there will not be sufficient assets to pay for such real estate, the court may order the executor or administrator to sell all the right, title and interest of the deceased therein." This court decided in Garrett v. Bicknell, 64 Mo. 404, that no petition was necessary under these sections, and in that connection said: "It will be perceived, upon an examination of the law regulating the disposition which shall be made of a decedent's interest in land bought by him in his life islature intended to invest the county and a debt bars an action for the statutory penalty probate courts with powers freed from many for a refusal to release the deed of trust. of the restrictions imposed by those sections [Ed. Note.-For other cases, see Judgment, regulating sales of land on petition of the 1092-1097, 1132; Dec. Dig. § 585.*] Cent. Dig. 88 1062-1064, 1067, 1073, 1084, 1085, administrator, executor, or creditor for the sale of real estate to pay debts." The case of Valle v. Fleming, 19 Mo. 454, 61 Am. Dec. 566, inferentially holds that no notice would be necessary under these sections. The statutes providing for the sale of the right, title, and interest only of the deceased in incumbered property, whether such incumbrance is by deed of trust or vendor's lien, make no provision for petition or notice. It is only when we come to the provisions for the sale of real property to pay debts that we find particular directions as to notice, publication, filing accounts, etc. I therefore conclude that in this proceeding, under sections 147 and 148, the provisions of sections 151, 152, 153, providing for the filing of lists of debts, notice, publication, etc., do not apply, and that there is no want of proper parties before the court, nor failure of other jurisdictional facts. The Legislature, no doubt, regarded proceedings to sell real estate to pay debts as essentially different, in relation to the interests of the heirs, from proceedings to protect incumbered property and dispose of equities, and hence the minute restrictions as to the former which are wanting in the latter cases. However that may be, the statute plainly makes a distinction in the matter of jurisdiction of the court. The probate court has jurisdiction to pass judgment on the points presented, namely, whether, under the facts, it was proper to order the sale of the equities in the real estate. The propriety of the ruling can be tested on appeal from any order it may make confirming a sale. Wilson v. Brown, 21 Mo. 410; McVey v. McVey, 51 Mo. 420; Desloge v. Tucker, 196 Mo. 587, 94 S. W. 283; section 289, R. S. 1909. For the foregoing reasons, I respectfully dissent from the opinion of the court. KENNISH, J., concurs. WARNER et al. v. MICHEL et al. 12, 1912.) Appeal from St. Louis Circuit Court; W. B. Homer, Judge. Action by Franceska Warner and another against Frank H. Michel and others, partners under the firm name of Hammell & Karleskind. From a judgment of nonsuit, plaintiffs appeal. Affirmed. Louis Mayer and L. P. Crigler, both of St. Louis, for appellants. J. L. Hornsby, of St. Louis, for respondents. REYNOLDS, P. J. This is the second ap peal in this case. It was here under the same title and will be found reported 143 Mo. App. 133, 122 S. W. 338. The petition contained two counts, the first asking for the cancellation of the record of a certain deed of trust, it being averred that the debt secured by it had been paid off in full and that plaintiffs had tendered the legal fee to entitle them to have satisfaction of the deed of trust; the second count averring the payment in full of the debt secured by the deed of trust and tender of the legal fee for the release thereof on the margin of the record, along with the demand that the release be indorsed, and averring the refusal of defendants to release the deed of trust of record, demands the statutory penalty of 10 per cent. of the debt as damages for failure so to do. At the former trial the cause was tried before the court as to the first count and before the jury as to the second, the testimony as to both counts being heard together. At the conclusion of that trial the court found for defendants on the first count, but the jury before whom the second count for the statutory penalty was tried, returned a verdict in favor of plaintiffs. Plaintiffs filed a motion for new trial as to the first count, and defendants filed one as to the second count. The court sustained the motion of defendants for new trial on the second count but overruled the motion of the plaintiffs for a new trial on the first count. Plaintiffs (St. Louis Court of Appeals. Missouri. Nov. appealed from this to our court and we affirmed that action, remanding the case for 1. APPEAL AND ERROR (8 907*)-REGULARITY further proceedings. Thereupon the cause OF ACTION OF TRIAL COURT-PRESUMPTIONS. Coming on for trial before the circuit court, Where the abstract of record is in the short form, and contains a copy of the judg- defendants objected to the introduction of ment appealed from and the order allowing the any evidence in the case on the ground that appeal, but contains no recitals with reference the judgment of the court on the first count to an objection made by counsel, the reviewing in favor of defendants was a bar to the court will presume in favor of the regularity of the trial court's action and affirm the judgment. action on the second count, and claiming [Ed. Note. For other cases, see Appeal and that that judgment is conclusive on the isError, Cent. Dig. §§ 2911-2915, 2916, 3673, sues in the case as set out in the second 3674, 3676, 3678; Dec. Dig. § 907.*] count or cause of action of the petition and 2. JUDGMENT (§ 585*) CONCLUSIVENESS that there is nothing remaining for trial or QUESTIONS CONCLUDED. submission to the court. The court sustained that objection, whereupon plaintiffs took A judgment adjudging that a party is not entitled to a release of a deed of trust securing a nonsuit with leave to move to set it aside and that being overruled and exceptions saved have perfected their appeal from that action of the trial court. REYNOLDS, P. J. Plaintiff, appellant here, instituted this action before a justice of the peace, against the respondent Haderlein and one Charles H. Franck, filing a statement with the justice, to recover $250 alleged to be due him under a contract hereafter referred to. Plaintiff dismissed as to defendant Franck before the justice and judgment was rendered against Haderlein, from which the latter appealed to the circuit court where the cause was tried before the court, a jury being waived, on an agreed statement of facts. It appears by this statement that the basis of the action was the following writ [1, 2] The abstract of the record is in such shape before us that it is almost impossible to handle the case intelligently. We are not able to determine whether the cause went to this second trial on both counts of the petition or on the second count. Nor can we tell what judgment is referred to in the objection made by counsel. No judgment of any kind is in this record. The abstract is barren of any recitals on this. The only judgment before us is the one of nonsuit, which is on file with us, this case com-ing: ing to us on what is known as the "short form," appellant filing a copy of the judgment appealed from and the order allowing the appeal. In this condition of the record, the presumption always being in favor of the regularity of the action of the trial court, we would have no other course than to affirm the judgment of that court. But not resting on that, if we are to assume, as counsel for appellants seem to concede was the fact, that the finding and judgment on the first count, was as set out when the cause was previously before us, and which we then affirmed, then the action of the trial court, in holding that the judgment on this first count is a bar to an action of the second count, is manifestly correct. That judgment "[Signed] Jos. Haderlein." was conclusive of the fact that the plaintiffs It was further stipulated that appellant were not entitled to have the deed of trust and Charles H. Franck prepared and filed a released. It necessarily followed that plain- petition for the injunction referred to in this tiffs could not recover damages for failure agreement, "and prosecuted said suit until to release it. on discharge of said Frumberg without cause The judgment of the circuit court is af- by defendant Haderlein from further servfirmed. NORTONI and CAULFIELD, JJ., concur. FRUMBERG v. HADERLEIN. "Received of Joseph Haderlein, five hundred ($500) dollars, retaining fee in his injunction suit against W. Schneider Wholesale Wine & Liquor Company et al. It is understood that if a perpetual injunction is procured for Mr. Haderlein, then he is to pay an additional attorneys' fee to Chas. H. Franck and A. M. Frumberg of five hundred ($500) dollars; and in the event the injunc tion is not procured, then there is to be no further attorneys' fee to said attorneys. "In duplicate. "[Signed] Chas. H. Franck. "[Signed] A. M. Frumberg. "Dated November 18th, 1909. "Accepted: ice in said cause," and that plaintiff and Frumberg received $500 from Haderlein, the retaining fee mentioned in the agreement; that after the discharge of plaintiff in the cause Franck and George W. Lubke, Jr., have prosecuted and are still prosecuting the suit, (St. Louis Court of Appeals. Missouri. Nov. which suit is still pending and in which no 12, 1912.) PARTIES (819)-PLAINTIFF JOINT CONTRACT FOR JOINT SERVICES. A several action on a contract by one with two others jointly to pay them a certain sum for services to be performed by them jointly cannot be maintained by one of the obligees against the obligor. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 19-23; Dec. Dig. § 19;* Contracts, Cent. Dig. §§ 1580, 1598-1601.] Appeal from St. Louis Circuit Court; go Muench, Judge. perpetual injunction has been procured, as mentioned in the agreement. It is further stipulated that plaintiff at the times mentioned was a licensed and practicing attorney of the St. Louis bar. No other evidence appears to have been introduced outside of this stipulation, the cause being submitted to the court upon it. Thereupon the court made this declaration of law: "It appearing that the contract of Hu-employment, for the breach of which plaintiff prosecutes this suit, was made by defendant with plaintiff and Charles H. Franck jointly, the court declares the law to be that plaintiff cannot at law prosecute a several action upon the same, and the judgment herein must therefore be in favor of defendant.” Plaintiff excepted to the giving of this declaration, filed his motion for a new trial, and saving exception to that being overruled, Action by A. M. Frumberg against Joseph Haderlein. From a judgment for defendant on appeal from a justice, plaintiff appeals. Affirmed. J. F. Merryman and William H. Killoren, both of St. Louis, for appellant. Karl M. Vetsburg and Chas. H. Franck, both of St. Louis, for respondent. duly perfected his appeal from the judgment of court, striking out the names of two of rendered in favor of defendant. The only error assigned by counsel for appellant is to the action of the court in giving the declaration of law above set out, it being urged that Franck was not a proper or necessary party either plaintiff or defendant. While other authorities are cited in the brief of counsel for appellant, in the argument accompanying the brief the authorities relied on are 15 Ency. Plead. & Prac. 735; State ex rel. Glass et al. v. Beasley, 57 Mo. App. 570, loc. cit. 574; and State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S. W. 483. The quotation from the Encyclopedia of Pleading and Practice is that the test of unity of interest intended by the statute is such joint connection with the subject-matter as would preclude a separate action. However true this proposition may be, to apply it to the case at bar, as contended for by learned counsel for appellant, is the assumption of the very point in controversy. The question here for determination is whether this contract shows such joint connection with the subject-matter as will preclude a separate action by either Mr. Frumberg or Mr. Franck. The holding of the learned trial judge, as evidenced by the declaration of law, is that it will not. In the Bradley Case, supra, it is distinctly said (193 Mo. loc. cit. 45, 91 S. W. 486) that the employment of the two attorneys there named, one of whom had sued for compensation claimed to be due him, "although for a contingent fee was wholly independent of each other." That is not the case here. The contract is for services which were to be jointly performed by appellant and Mr. Franck; it is a joint contract for the joint services of the two in the conduct of a certain cause which the respondent here was desirous of having brought and prosecuted. The Beasley Case, supra, was an action for trespass where several persons, alleged to have been damaged in their several interests, undertook to sue jointly. The Kansas City Court of Appeals very properly held that this could not be done. the plaintiffs, leaving Slaughter as the sole plaintiff and a verdict and judgment was returned in his favor. From this an appeal was taken to the Supreme Court. It appeared that the contract involved was to pay Brooking, Slaughter and Green a certain sum of money and that the only condition therein was that the necessary funds subscribed should be equal to one-fourth the cost of macadamizing a public road. Our Supreme Court (151 Mo. loc. cit. 32, 51 S. W. 472) there held that the cause of action being a joint contract, the suit was properly brought in the names of the joint obligees; that the amendment changed it to an action on a several contract; that if the contract was several there was no reason why this might not be done, for if a party plaintiff to a suit is an unnecessary party, the dismissal as to him would not in any way change the cause of action. "But," says Judge Burgess, "it is not so when the suit is (on) joint contract, and the amendment changes it to an action on a several contract, for in that case there is an entire change in the cause of action, from a joint to a several cause of action upon a joint contract which is not permissible." Further along (151 Mo. 33, 51 S. W. 472) it is said, referring to the action as originally instituted, "In the contract which formed the basis of that action the obligees were joint promisees, one of whom could not have maintained a separate suit upon the contract." In the light of these adjudicated cases, as well as of many more cited by counsel for respondent, we think that the learned trial court correctly applied the law as announced by him in the declaration of law complained of. That is the only error assigned and it is not tenable. The judgment of the circuit court is affirmed. NORTONI and CAULFIELD, JJ., concur. GILLFILLAN v. SCHMIDT. In very many cases and from an early day, our Supreme Court has held that where (St. Louis Court of Appeals. Missouri. Nov. the cause of action is on a joint contract the suit must be brought in the names of the joint obligees. Welles, to Use, etc., v. Gaty et al., 9 Mo. 565, was the earliest of these and the rule there announced has never been departed from, nor has it been changed by statute. A later case that collates many authorities and announces the same rule is that of Slaughter v. Davenport, 151 Mo. 26, 51 S. W. 471. There it appeared that the action had been begun before a justice of the peace in the name of three parties plaintiff who recovered a judgment. The defendant appealed from that to the circuit court. There plaintiff amended his petition by leave 12, 1912.) For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes roneous. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 121-130; Dec. Dig. § 88.*] 4. TRIAL (8 244*) INSTRUCTIONS UNDUE COMMENT ON SINGLE FACT. An instruction, in an action for commissions for procuring a purchaser of real estate, that if the broker brought a prospective purchaser to the owner on Sunday, the owner was not bound to accept him as a purchaser, or to enter into negotiations on that day, and that what the parties did on that day was immaterial, was not objectionable, as an undue comment on a single fact. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 577-581; Dec. Dig. § 244.*] against an instruction given at the instance of defendant, to the effect that the burthen of proof in the case is upon plaintiff to show by the greater weight of the evidence that he procured a purchaser for defendant's farm; that that person was ready, financially able, and willing to purchase defendant's farm on the exact terms fixed by defendant, and unless plaintiff had shown these facts by the greater weight of the evidence, their finding should be for defendant. It is complained of this instruction and of the following ones, which embody in different form this same direction, that they are in direct conflict with what is said by this court in Dalton v. Redemeyer, 154 Mo. App. 190, 133 S. W. 133. If these instructions stood alone in referring to the contract, they might be subject to this criticism. But the analogy between this case and the Dalton Case fails when the instruction given at the instance of plaintiff is considered. In that instruction the court told the jury, at the instance of plaintiff himself, exactly what the terms of the sale of the farm were to be. Hence it cannot be said, as was said in the Appeal from Circuit Court, Warren Coun- Dalton Case, that the jury were left to ty; Jas. D. Barnett, Judge. Action by Thomas P. Gillfillan against George F. Schmidt. From a judgment for defendant, plaintiff appeals. Affirmed. Emil Roehrig, of Warrenton, for appellant. T. W. Hukriede and J. W. Delventhal, both of Warrenton, and E. Rosenberger & Son, of Montgomery City, for respondent. REYNOLDS, P. J. This action, instituted before a justice of the peace to recover commissions on the sale of land, being determined there against plaintiff, was appealed to the circuit court, where on a trial de novo before the court and a jury, a verdict was again returned in favor of defendant, judgment following, from which plaintiff, filing his motion for a new trial and saving exception to that being overruled, has duly perfected appeal to this court. grope in the dark to determine what the contract between the parties was. [3] It is further assigned as error that the court told the jury that plaintiff to recover should have procured a purchaser ready, willing and able to purchase the farm, "on the exact terms fixed by defendant." That might be error if it were not for the fact that by plaintiff's own testimony and that of his customer, it appears that that customer and the plaintiff proposed to conclude the purchase on terms which were not only not exactly as authorized by defendant, but were very materially different. With this in evidence, we do not think the error is, in this case, reversible error. [4] Criticism is leveled at one of the instructions which told the jury that if they believed that plaintiff brought a person named as prospective purchaser, who was a [1] The verdict is challenged by the learn- customer of plaintiff, on Sunday, then deed counsel for appellant, as unsupported by fendant was not bound to accept him as a the evidence and further that the evidence purchaser or enter into negotiations on that introduced at the trial did not support the day, but if they found that anything was instructions given at the instance of de- said or done by defendant on that occasion, fendant. As is usual in transactions, the the fact that the day was Sunday "becomes proof of which rests wholly in parol, the immaterial and will not be considered by evidence was somewhat conflicting but not the jury." We see no cause for complaint irreconcilable. We cannot say, on reading it, that there was no evidence to support the verdict. Even admitting that it was seriously conflicting, it is clear that the jury believed that offered and introduced by defendant in the case. To do that was entirely within their province. Nor can we agree that the instructions given at the instance of defendant were unsupported by the evidence. [2] The most serious complaint is leveled by plaintiff as to this. It is urged, however, that it is an undue comment on a single fact. We do not think so. Finding no error to the prejudice of plaintiff in the record in the case or in the instructions given, nor in the action of the court in overruling the motion for new trial, the judgment of the circuit court is affirmed. NORTONI and CAULFIELD, JJ., concur. |