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[6] Accordingly, when the presumption that | marriages.

Bishop v. Brittain Inv. Co., su

the rigid and wholesome requirement of that case. It comes within the facts and doctrine of a line of Missouri cases cited in appellants, brief (q. v.). Deeming a common-law marriage established, plaintiffs did not successfully carry the burden of showing no divorce. Two or three witnesses who knew the parties spoke of never hearing any one speak of a divorce. They were allowed to tell there was no neighborhood rumor of one. But that character of proof, if of any value at all, is not the cogent proof required by them to overcome the strong presumption of inno

cence.

a marriage once established continues to ex- pra. We think the proof in this case meets ist is confronted, under proper proof, by presumptions in favor of innocence rather than crime, in favor of morality instead of vice, the former presumption gives way and the latter obtain. So that the settled law in this jurisdiction is that if A. and B. are married, and afterward A. and C., by virtue of a common-law or ceremonial marriage, consort together as husband and wife during B.'s life, under the circumstances disclosed in this record, the burden of proof that A. and B. were not divorced (and that consequently the relations between A. and C. are meretricious and criminal) is upon the party asserting the fact, though it is a negative fact and hard to prove. On plaintiffs, then, was the burden to prove the negative fact that there was no divorce between John Jones and Emma Jones. We have been so lately and fully over this matter, speaking through our Brother Graves, in the Johnson Case, infra, that it would be unseemly and smacking of vanity in the writer to attempt to further expound the law. Johnson v. Railways, 203 Mo. loc. cit. 401, 101 S. W. 641, et seq. and cases cited. That case was followed in the later case of Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. St. Rep. 513, 17 Ann. Cas. 673. Vide, Plattner v. Plattner, 116 Mo. App. loc. cit. 412, 91 S. W. 457; Bishop v. Brittain Inv. Co., 229 Mo. loc. cit. 729, 129 S. W. 668, Ann. Cas. 1912A, 868, et seq.

[7] That there was at least a common-law marriage between Harrington and Jones is sufficiently established. For several years they openly held themselves forth to the world in the neighborhood of their old acquaintances and kinsfolk by the manner of their daily life, by conduct, demeanor, and habit, as man and wife. They assumed that mutual relation apparently in good faith. The community accepted it. Children were born to them. They established a home to which Jones took his child by his first wife and reared her. They seem to have been treated as husband and wife by the relatives of both women. It is unthinkable that in a Christian community, however primitive, the first wife and her relatives would have permitted Addie to remain in the Jones' household if they thought him hatching a brood of bastards in a wanton nest. Did they knowingly subject her to the domination and teaching of an immoral woman? On what decent theory did the first Mrs. Jones remarry except on the assumption she was divorced? The main witness for plaintiff, the brother of the first Mrs. Jones, puts himself in the attitude of eating salt at Jones' table in a house desecrated and dishonored by flaunted lust, if his theory as a witness be accepted.

[8] This court has put itself on record as

Mr. Ballard, as said, one of plaintiffs' attorneys, described himself on the witness stand as judge of the county court, justice of the peace, and notary public in Pemiscot county. Assuming he has the astuteness and learning appurtenant and appertaining to that aggregation of offices, yet we cannot assume that his investigation of the court records of the courts of another state furnishes the best evidence of their contents. He went to Osceola, in Mississippi county, Ark., a few days before the trial, searched the records there, and was allowed to testify that he found no decree of divorce between John Jones and Emma Jones.

[9] The law requires the best proof the case is susceptible of. It does not require impossibilities, and therefore did not require the production in our courts of the records of the courts of a sister state. Where there is a mass of records to examine, the law does not require the production of certified copies of all of them to prove the negative fact that a certain decree cannot be found. Such proof may rest in parol ex necessitate rei. But there should and could have been furnished the testimony of the custodian of those records, or of other persons who qualified as familiar with them and all of them, in order that the negative fact might be clearly shown. Mr. Ballard testified he examined certain books and indexes. How did the trial court know they were all of the minute books, record books, and indexes? All the trial court knew in that behalf he knew from what Ballard testified. How could a stranger to these records like Ballard know? As figs do not grow on thorns, neither does certainty grow on uncertainty. In Chilton v. Metcalf, 234 Mo. 27, 136 S. W. 701, where evidence of the same character was elicited from the clerk of the court himself, comment is made upon the fact that the clerk's evidence did not satisfactorily account for all the records.

[10] While creating suspicion and doubt, yet we hold the testimony too loose and insufficient to clearly prove there was no divorce at Osceola. Moreover, why should we assume the doubtful fact that Emma Jones

than in Mississippi county, where she herself Carolina. The children of the second marcould have procured a divorce?

[11] It is common learning that under the old common law, in aid of legitimacy of children, if the husband be shown to have been "within the four seas" within a stated period, and was capable of begetting issue, the wife's child was allowed to be legitimate. That liberal rule bespeaks an ancient and rooted judicial tenderness toward children. Neither in old nor in modern times has it ever been allowed just to hold a child a bastard unless there is no judicial escape from that dire conclusion. The premises considered, the Scotch form of verdict, "not proved," must be our judicial finding on the negative issue of no divorce and on the issue of bastardy.

read:

[12] (b) There is another view of the case equally conclusive, viz.: In our statute of descents and distribution is the following: "The issue of all marriages decreed null in law, or dissolved by divorce, shall be legitimate." R. S. 1909, § 342. That statute once And the issue of all marriages deemed null in law or dissolved by divorce shall nevertheless be legitimate." R. S. 1825, p. 328, § 8. For the first time in Gen. St. 1865, p. 519, § 11, the statute uses the word "decreed" instead of the former word "deemed"; and, as there changed, it has been handed down as live written law to this very day. When that change in the statute was first brought to the attention of the courts, the notion was indulged that prob

ably the change was a clerical error. Pratt v. Pratt, 5 Mo. App. loc. cit. 544. However, in Green v. Green, 126 Mo. 17, 28 S. W. 752, 1008, it was held that, if the change had only appeared in one revision, it could justly be held an inadvertence. But since it appeared continuously in subsequent revisions, this court would assume it was intentionally used. On that assumption we held the word "decreed," in a technical sense, is almost meaningless in practical effect; further that the Legislature did not intend its meaning should be materially different from the word "deemed" in the original act. 126 Mo. at page 24, 28 S. W. 752, 1008. Adopting that view of it on the reasoning of the Green Case, then we fall back upon the exposition of the act as it originally read. There is a wealth of such exposition in our reports. The student in jurisprudence, curious to follow the stream of law interpretation up to its original source, is referred, for the philosophy and applica tion of that statute, to Lincecum v. Lincecum, 3 Mo. 441; Johnson v. Johnson, 30 Mo. 72, 77 Am. Dec. 598; Buchanan v. Harvey, 35 Mo. 276; Dyer v. Brannock, 66 Mo. loc. cit. 418, 27 Am. Rep. 359, et seq.; Boyer v. Dively, 58 Mo. 510; Green v. Green, supra; Gates v. Seibert, 157 Mo. loc. cit. 272, 57 S. W. 1065, 80 Am. St. Rep. 625, et seq.

In the Lincecum Case a man had a second

riage were allowed to share in the estate with those of the first. In the Johnson Case there was a common-law marriage with an Indian woman, a daughter of Keokuk, and children were born thereof. Afterwards Johnson sent Keokuk's daughter back to her tribe, thereby exercising a tribal law right so to do. Afterwards, on the eve of his marriage to a white woman, he declared himself a bachelor. Afterwards he reared his Indian children as his own, educated them, and gave them a place in his social circle. We held them legitimate. In the Buchanan Case, Harvey, while residing with a band of the Blackfeet tribe of Indians on the upper Missouri, where under Indian custom polygamy was lawful, married two squaws and died in the Indian country leaving a daughter by each, Susan and Adeline. In the distribution under an administration in St. Louis, Susan and Adeline were declared legitimate under the doctrine of the Johnson Case. In the Dyer Case, Wilson contracted a common-law marriage with Jane Collins, and from that union sprang a daughter Cynthia. Five years afterwards, during Jane's lifetime, he married Sarah Ann Adams, by whom he had a child who survived its mother and died. Afterwards he sent for Jane Collins and Cynthia, lived with them until his death, and treated Cynthia as his daughter. Sarah Ann Adams owned real estate which was inherited at her death by her child by Wilson. We held that he inherited the property from his child by Sarah Ann Adams, and that the descendants of Cynthia (the latter marrying child of Wilson and were entitled to recover one Dyer) were the offspring of a legitimate the property in ejectment. In the Green Case, William Green married in Ireland, abandoned his wife, was never divorced, and during her lifetime married in this country, reporting himself a single man. The children of the last wife were held legitimate.

In construing that beneficent and remedial statute, we ought not to apply the discredited and bitter proverb that the fathers have eaten sour grapes and the children's teeth are set on edge. That proverb was held unjust by noble authority at a very early day. Ezek. 18: 2-3; Jer. 32: 29-30. We are bound to construe the statute so as to advance the interest of innocent children for whose benefit the statute was passed and who, for no fault of their own, up to that time were in hard lines. The plain language of the statute, as illuminated by the construction given it by this court, makes children in the fix of the infant defendants legitimate. We confess to an indisposition to bastardize them by implication or construction. Says Napton, J., in the Dyer Case: "We have no authority, upon grounds of public policy or for the promotion of private morals, to make restrictions or exceptions which the Legislature has not seen proper

598. Attending to that language, it must be steadily borne in mind, as said that the reason of the existence the essential object of the law was to help blameless children and spare them penury and infamy. We are not unmindful of the precept that the greatest incitement to guilt is the hope of sinning with impunity, but the force of that statute, as indicated by the above quotation, is not spent on promoting the morals of parents. In the Green Case, some stress is laid on the good faith of at least one of the parties contracting the second marriage. It may well be that, in order to constitute a marriage at all, there should be an element of good faith, a bona fide intention to marry, as over against an intention to indulge a mere prank, or mere casual sexual commerce, etc. But, even on that view of the law, we think the good faith of Miss Harrington sufficiently appears in this case. She is not to be judged by dainty speculative refinements. Ignorant, immature, and taking color from a lowly and primitive environment, we must allow some value to those factors on the question of good faith. Her faith must be seen through her works. Her actions speak louder than any words in showing her good faith when she lived, for half a decade after her elopement, fearlessly and openly among her neighbors and acquaintances filling the

office of a wife and a mother with the man she then took as her husband. Those officers, courts, and grand juries charged with law enforcement in the region seem to have acquiesced in the status she established for herself until Jones died. Neither they nor her neighbors cast any stones at her. Is that not some little evidence they thought her honest? The views expressed make appellants' assignments of error relating to the admission of testimony fill no office worth while.

For the reasons set forth, the judgment should be reversed, and the cause remanded, with directions to enter a decree in accordance with this opinion. Let that be done.

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volving lengthy accounts, credits, and counterclaims.

Cent. Dig. §8 13-23; Dec. Dig. § 8.*] [Ed. Note.-For other cases, see Reference,

2. REFERENCE (§ 103*)—APPEAL AND Error (§ 1017*)-REPORT OF REFEREE-EXCEPTIONS— REVIEW.

In case of reference in equity or compulsory reference in an action at law, the trial court may not only sustain exceptions to the referee's report and set aside his findings, supplanting them with findings of its own, but such rulings and acts are subject to review by the appellate court.

[Ed. Note.-For other cases, see Reference, Cent. Dig. 88 188-203; Dec. Dig. § 103;* Appeal and Error, Cent. Dig. §§ 3996-4005; Dec. Dig. 8 1017.*]

3. COURTS (§ 231*)-STATE COURTS JURISDICTION OF MISSOURI SUPREME COURT. The amount in dispute by which the jurisdiction of the Supreme Court is fixed is not necessarily determined by the amount of the judgment appealed from, nor by the amount claimed in the petition or counterclaims, but should be determined by the amount that actually remains in dispute between the parties on the appeal, the court having the right to look into the record to determine the amount in dispute; and hence an appeal from a judgment sustaining objections to the referee's report giving defendant judgment over for $2,500 on its counterclaim, and disallowing all defendant's counterclaims and allowing plaintiff a judgment of over $6,500, falls within the jurisdiction of the Supreme Court.

[Ed. Note. For other cases, see Courts, Cent. Dig. $$ 487, 491, 644-661; Dec. Dig. § 231.*] 4. PROHIBITION (§ 35*)-COSTS. Where a writ of prohibition is issued against the judges of an intermediate appellate court, it should go at the relator's costs, for judges should not be mulcted in costs for errors of judgment.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. § 84; Dec. Dig. § 35.*]

En Banc. Original application by the State, on the relation of the Federal Lead Company, for writ of prohibition against George D. Reynolds and others, as judges of the St. Louis Court of Appeals. Writ is

sued.

Robert & Robert, of St. Louis, for relator. Seneca N. Taylor, of St. Louis, for respondents.

LAMM, J. The Federal Lead Company, complaining of the St. Louis Court of Appeals for that it was exercising jurisdiction of an appeal from a judgment of the St. Francois circuit court in favor of AbbotGamble Company against said Lead Company, moved for a preliminary rule here in prohibition. Such rule was issued and served, citing respondents, the judges of that court, to show cause. By their return and by a demurrer thereto an issue at law is sprung, to wit, whether on that return and on the record lodged in the Court of Appeals in the original cause (and presented here for our consideration) the rule should At a cer

Under Rev. St. 1909, § 1996, providing that, where the parties do not consent to reference, the court may direct a reference where the trial of an issue of fact shall require the examination of a long account, a compulsory be made absolute and a writ go. reference is proper in a suit on contracts in-tain time the Abbot-Gamble Company sued

the cause here, grounding its motion on the theory that the amount in dispute on appeal exceeded the jurisdiction of the Court of Appeals. That court having overruled that motion, defendant came here with its suggestions for prohibition, with the result stat

the Lead Company in three counts, the subject-matter of all of them relating to a contract by which the former undertook to furnish the labor, machinery, and material (barring certain exceptions) to construct the foundations and ground floors for the latter's mill and reduction works near Flat riv-ed at the outset. Having summarized er. In the first count judgment was asked for $11,882.29 (on a quantum meruit), by the second, for $1,011.45 (additional labor and work), by the third $9,300 (loss of profits).

enough of the record for our purposes, we are of opinion that on such summary an absolute rule should be entered and a writ go. [1] This, because:

(a) While the original action was at law, yet the reference in hand was not by "the written consent of parties." R. S. 1909, § 1995. The long and intricate accounts involved, together with a multiplicity of refined details arising on charges and counter charges at issue for alleged breaches of the contract, all set forth in the pleadings and exhibits in 50 pages of solid print, made the cause eminently one for compulsory reference within the purview of our statute. R. S. 1909, § 1996. Indeed, defendant seems to have acquiesced in the order of reference, and, we take it, thereby impliedly admitted that the case belonged to a class subject to compulsory reference, and in which defendant had no constitutional right to a jury.

For its first defense in that cause, Lead Company relied on a general denial. For its second, by way of affirmative allegations of matter constituting a counterclaim, and further by way of specific denials and admissions, its answer worked out the result that plaintiff had earned under the contract a surplus over payments in the sum of $3,766.54, but that there was due from plaintiff to defendant (by reason of averments of fact made in the answer) a much larger sum than that. As to the second count, the amount claimed thereon by plaintiff stood confessed, but it was averred that plaintiff owed defendant, by reason of certain facts, a much larger sum. The answer then goes on to set up counterclaims arising out of the contract and transaction pleaded as the [2] (b) Whatever be the rule in cases that foundation of plaintiff's claim; one counter- could only be sent to a referee by agreement claim aggregating $15,688.26 and another of parties, yet, where a cause in equity is $788.70. A reply coming into this answer sent to a referee or where a case at law (and defendant also replying to the new (subject to a compulsory reference) is sent matter set up in plaintiff's replication) on to a referee, the settled rule is that trial motion of plaintiff the cause was ordered courts may not only sustain exceptions to referred to Julian Paul Cayce, Esq., as ref- the referee's report and set aside his finderee, who qualified and assumed the bur-ings, but may go on and make findings of den. After a year and four months spent in taking a great volume of testimony, the referee reported the amount due defendant on the counterclaims to be $17,209.83, and the amount due plaintiff on the causes of action stated in its petition to be $14,553.15, leaving due defendant, on striking a balance, the sum of $2,656.68. For that balance the referee recommended a judgment in favor of defendant.

(Note. While the matter was in fieri, plaintiff became a bankrupt and Mr. Folks, its trustee in bankruptcy, was allowed to appear as a party and carry on the suit.)

its own and render judgment contrary to that recommended by the referee, and (which is closer home) all of such rulings and acts nisi are subject to review by an appellate court and to its revising judgment when (as here) exceptions are properly preserved below and brought up for disposition above. Caruth-Brynes Co. v. Walter, 91 Mo. loc. cit. 488, 3 S. W. 865; State ex rel. v. Hurlstone, 92 Mo. loc. cit. 332 et seq., 5 S. W. 38; Wentzville Tobacco Co. v. Walker, 123 Mo. loc. cit. 671, 27 S. W. 639; Small v. Hatch, 151 Mo. loc. cit. 306, 52 S. W. 190; Williams v. Railway Co., 153 Mo. loc. cit. 495, 54 S. W. 689; Smith v. Baer, 166 Mo. 392, 66 S. W. 166. Vide State ex rel. v. Woods, 234 Mo. loc. cit. 26, 136 S. W. 337, and Star Bottling Co. v. Exposition Co., 240 Mo. loc. cit. 639 et seq., 144 S. W. 776, arguendo, on the scope and character of the issue below on exceptions filed to a referee's report.

At the proper stage, plaintiff filed exceptions to the report of the referee, but defendant was content, and filed none. Presently plaintiff's exceptions were sustained, all defendant's counterclaims were disallowed, and judgment went in plaintiff's favor on the first and second counts in the aggregate sum of $6,817.48. From that judgment [3] (c) The question in judgment being the defendant alone appealed, having in apt amount in dispute on appeal, not only propoform and due time preserved alive its ex- sitions ruled in paragraphs "a" and "b" are ceptions to the court's action in sustaining of help in marking the road the court must plaintiff's exceptions to the referee's report, travel in reaching the amount in dispute, in disallowing its counterclaims, and in giv- but there is another proposition of kin thereing judgment for plaintiff. The appeal was to, to wit: The amount in dispute by which allowed to the St. Louis Court of Appeals. the jurisdiction of the appellate court is

is not necessarily determined by the amount ( judgment) that shall cut away plaintiff's reof the judgment appealed from, nor by the covery in whole or part, or re-establish the amount claimed in the petition or counter-finding of the referee in whole or part-that claims, but is determined by the amount is, it can undo what was done below, and that actually remains in dispute between the do rightly what was done wrongly. parties on the appeal, and subject to the determination by the appellate court of the legal question raised by the record. State ex rel. v. Lewis, 96 Mo. loc. cit. 148, 8 S. W. 770; Douglas v. Kansas City, 147 Mo. loc. cit. 432, 48 S. W. 851; Bridge Co. v. Transit Co., 205 Mo. loc. cit. 179 et seq., 103 S. W. 546; Vanderberg v. Gas Co., 199 Mo. loc. cit. 458 et seq., 97 S. W. 908.

(d) Accordingly, it is accepted doctrine that, to get at the amount in dispute for appellate purposes and preserve the constitutional integrity of this court on the matter of its jurisdiction, we may look within the mere shell of the judgment and far enough into the record to see that our proper jurisdiction is not cut away, or that jurisdiction is not foisted upon us by design, inadvertence, or by mere colorable amounts. So we may eliminate amounts set at rest by the pleadings, or determined below and not appealed from by the losing party, or consider counterclaims (where the case cries out for it on appeal). Conrad v. De Montcourt, 138 Mo. loc. cit. 321, 39 S. W. 805; Wilson v. Russler, 162 Mo. 565, 63 S. W. 370; State ex rel. v. Lewis, supra; In re Burke's Estate, 169 Mo. 212, 69 S. W. 277; and cases cited supra in paragraph "c."

(e) The premises all considered, it seems plain this court has jurisdiction of the case of Folks, Trustee of Abbot-Gamble, v. Federal Lead Co.; for at bottom the issue on appeal is: Did the court err in setting aside the findings of the referee whereby by balancing claims and accounts a net balance is found in favor of defendant on its counterclaims in the sum of $2,656.68, and commit further error by rendering judgment in favor of plaintiff, after disallowing all such counterclaims, in the sum of $6,817.48? That the amount in dispute, subject to the judgment of the appellate court on review, is the sum of those two items, seems clear. Take an a, b, c, case to illustrate: If Roe claim $1 of Doe, and the court not only takes that dollar from him, but $2 more, and gives them to Doe, evidently he is out of pocket and injured in the sum of $3, and, on Roe's appeal, the amount in dispute would be those $3. In this case defendant was content to abide the finding of the referee awarding it $2,656.68; but the trial court not only took away its right to the sum SO found, but mulcted it in the further sum of $6,817.48. Defendant appealed to correct that situation, and the amount in dispute, as said, is the sum of the two items. Under the authorities cited, supra, the appellate court has power, if the justice of the case demands it, to give judgment (or direct a

(f) There are cases where, on defendant's appeal, we have used general language to the effect that the amount of the judgment appealed from determines appellate jurisdiction. Jackson v. Binnicker, 179 Mo. 139, 77 S. W. 740, McGregor v. Pollard, 130 Mo. 332, 32 S. W. 640, and Hensler v. Stix, 185 Mo. 238, 84 S. W. 894, are samples of such cases. When applied to record facts held in judgment in those cases, the general language in which the rule is put is well enough, for that is the general rule. But that general language must be understood as referable to the facts and issues of those cases, and not as an unvarying legal pronouncement or formula to be mechanically and always applied to a different state of facts and different issues. The court, having an eye to the case in hand, was not called on to state all the qualifications and limitations of the rule and deliver a charge on the whole body of the law. The writing of opinions would be an intolerable task and the reading of them even worse if that were good doctrine. A court can write sound law without writing all there is of it at one time. State ex rel. Bixby v. St. Louis, 145 S. W. 801. The rule in prohibition is therefore made absolute, and the St. Louis Court of Appeals is ordered to transfer the cause to this court.

[4] Let the writ go-at relator's costs, however. Judges should not be mulcted in costs or other damages for errors of judgment in judicial matters. All concur.

WADDLE et al. v. FRAZIER. (Supreme Court of Missouri, Division No. 2. Nov. 13, 1912.)

1. CURTESY (§ 1*)-NATURE OF ESTATE"HEIRS."

Rev. St. 1909, § 350, providing that when a wife dies without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the property belonging to her at her death, absolutely, subject to payment of her debts, does not make the husband the wife's "heir" with respect to any of her property, but gives him an estate in the nature of dower; the word "heirs" meaning kindred who take an interest in real estate by the law of descent.

[Ed. Note. For other cases, see Curtesy, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 76777678.]

2. PARTITION (§ 83*)-ADVERSE CLAIM.

The rule that partition cannot be had, where one claims adversely to those seeking partition, without first determining the right of possession in ejectment does not apply where the adverse claimant voluntarily comes into

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