178 S. W. 893, in assuming jurisdiction in the appeal in that case, that where the drainage act is used to accomplish a purpose foreign to the design of the Legislature, a question of the court's jurisdiction over the land is raised and therefore there is an appeal. It seems to us that what was said in that case applies to the case at bar. Here the drainage act concerning the extension of an existing corporation has been used in an effort to accomplish an object wholly foreign to its purpose that is, as a substitute for a proceeding to organize an original district-in other words, an attempt has been made to apply a statute enacted for one purpose to a wholly different purpose and one never intended by the Legislature. Under the holding in Re Drainage District, Buschling v. Ackley, supra, we must hold that an appeal lies under the circumstances of this case.

The judgment is reversed.

1. Appeal and error 301-Assignments of error, not included in motion for new trial, cannot be urged on appeal.

Assignments of error cannot be urged on appeal as to matters not included in motion for new trial.

2. Jury 66(7)—Juror may by specific order be transferred from one division to another (Rev. St. 1919, § 2626).

Under Rev. St. 1919, § 2626, trial judge has authority by specific order to require transfer of juror from one division to another.

3. Jury 131 (18)-Refusal to discharge juror for untruthfulness, in that he failed to answer general question as to employment, but answered direct question, held not reversible error.

Refusal to discharge juror for failure to answer general question relative to being in employ of company which had been sued for damages, and his subsequent admission thereof on direct question, held not reversible error.

knowledge was already before jury by other evidence brought out by plaintiff.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published." Action by David Grant against Fred W. Meinholtz. plaintiff appeals. Affirmed. Judgment for defendant, and

Earl M. Pirkey, of St. Louis, for appellant. of St. Louis, for respondent. W. E. Moser and John S. Marsalek, both

DAUES, P. J. This is an action for damthe court and jury resulted in a verdict for ages for personal injuries. The trial before defendant, and, after appropriate motions, plaintiff has perfected this appeal.

The pleadings are not in controversy. The petition alleges the relationship of master and servant, and that defendant, as employer, failed to exercise ordinary care to provide plaintiff with a reasonably safe scaffold upon which to do his work. The answer is a general denial.

The evidence on the merits of the case likewise is not here for review. Briefly, however, plaintiff's evidence is to the effect that plaintiff was a hod carrier employed by de-. furnished plaintiff a scaffold upon which to fendant, a contractor, and that defendant work; that the scaffold contained a loosened. board, which was insecure, and which tipped and gave way while plaintiff was pushing a wheelbarrow loaded with mortar over same; that because of such unsafe condition he fell off the scaffold, and suffered in-, juries. Defendant's evidence is that plaintiff was injured as the result of his attempting to turn the wheelbarrow at a place where the scaffold was too narrow for that purpose, and that he fell off of the edge of same, and was thereby injured.

The assignments of error addressed to us are: First, that the court erred in its ruling on objections during the voir dire examination of jurors; second, that error was committed in allowing juror Louis J. Stutz to serve over the objection of plaintiff, and, third, that error was committed in allowing defendant to testify that he was a married

man.

The first and second assignments of error may be discussed together. The controversy

4. Jury 97(1)—Juror showing prejudice or arises out of this situation: During the voir other unfitness should not be accepted. Juror who shows prejudice or other unfitness should not be accepted by the court. 5. Appeal and error 1050(1)-Permitting defendant to state that he was married held not prejudicial in view of admonition, and that knowledge was already before jury.

dire examination of the jury, plaintiff's counsel asked the jurors collectively if there was any one on the jury who was in the service of a company that had ever been sued for damages, and juror Stutz, it seems, made no reply. Later on, during the examination, when. plaintiff's counsel directed the specific quesPermitting defendant to state that he was tion to this juror, Stutz answered that he a married man held not prejudicial error, in was a collector for the Terminal Railroad view of court's admonition, and fact that such | Association of St. Louis, and that such com

(289 S.W.)

pany had been sued for damages. Then, sel's general question regarding the employcounsel for plaintiff made the following ob- ment of any juror by any company that had jection to the court:

"I object to juror No. 17, Mr. Louis J. Stutz, for the reason that he was drawn as a juror for No. 3, assigned to division No. 3, served in division No. 3 according to his answer, and there is no authority under the law to transfer him to division No. 13; for the further reason that under the rule made by the judges only divisions Nos. 5 and 3 can interchange, and divisions 13 and 3 cannot interchange."

On this objection the court explained that there was no set rule for exchanging jurors between the divisions of the court, but that the judges had voted to exchange jurors when it was necessary and expedient, stating further that, while there was no definite rule actually adopted by the judges on the subject, there certainly was no rule which forbade it. The court further announced that he knew the juror had been taken from division No. 3-this case being tried in division No. 13-and overruled the objection. Then counsel for plaintiff made the further objection to the juror, stating his objection

been sued for damages.

[1] Likewise it will be seen that the lastmentioned ground for new trial is directed against the conduct of Adolph L. Kurtz for failure to answer the inquiry about employment in a company sued for damages, and not Louis J. Stutz, nor Charles S. Perkins, nor Edward A. Teckemeir. Of course, it is hardly necessary to say that such assignments of error cannot be urged upon appeal when no such matter is included in the motion for new trial, and for that reason alone we would be justified in overruling these two assignments of error.

Learned counsel for respondent insists, however, that there was no proof made that these jurors had actually been transferred from one courtroom to another. We doubt whether such was necessary. The clear inference from the language of the court is that the court ordered the deputy sheriff to get sufficient jurors to complete the panel from division No. 13.

[2] However, addressing ourselves to the very vitals of the controversy, in order to clarify this case and like cases that may be headed this way, we have read section 2626, Revised Statutes Missouri 1919. It contemplates that the jury commissioner of the city of St. Louis shall furnish the court from a proper jury.list the names of the number of jurors needed by the court, and that the court may by rule or special order direct the jurors ordered to appear in any one division to be assigned to any other division, to be transferred as the business of the court may require. It is true, the statute refers to general rules on this matter of transferring jurors, but it also says that the court may do that by a special order, and clearly implies that jurors may be transferred when expediency requires it from one room to another, provided the juror is finally qualified as to com

The objection was again overruled. Plaintiff's counsel then announced to the court that there were other jurors who had been taken from division No. 3 where they had been summoned to appear, who had been transferred to the panel in this case in division No. 13, naming jurors Charles S. Perkins, Louis J. Stutz, and Edward A. Tecke-petency to serve in the division to which he meir. The court again announced that it was aware that the jurors had been summoned in division No. 3, but that the court (division No. 13) had "borrowed these jurors from division No. 13," and overruled plaintiff's objection to these jurors serving on the panel. Better stated, the court denied these challenges for cause.

On the question as to whether the court erred in using jurors who had been originally summoned in division No. 13, and who had been called by the court through the deputy sheriff from division No. 3 to serve in division No. 13, we find that this point is not preserved in the motion for new trial. The motion for new trial complains of the court's failure to sustain the challenge to juror Adolph L. Kurtz; that juror Adolph L. Kurtz had been wrongfully brought from division No. 3 to division No. 13; and that Adolph L Kurtz had failed to answer coun

may be assigned. It appears that there was no recorded general rule at the time this case was tried covering this matter, but that does not, in view of the liberal construction that should be given this statute, vitiate this judgment on the theory that the juror was not competent to serve in the trial of this case. The record shows that the trial judge announced that the matter had been discussed by the judges, and that an agreement had been reached that jurors should be exchanged when necessary to expedite the business. While this might not generally have the controlling force of a rule, it certainly indicates that such special order or request was made in this case by division No. 13 for the jurors to be transferred from division No. 3 under a general understanding, by whatever name, of the different divisions. The trial court announced that it knew that the juror had been taken from division No. 3, indicating, of

course, and it is so to be conclusively pre-case." The objection was then overruled. sumed, that the court had ordered the deputy No motion to strike out the answer was sheriff to call these jurors to fill up the panel made. with the consent of division No. 3. We are not justified, we think, in sustaining this assign-made until the question had been answered, ment of error. It is not necessary, though it doubtless would be a better practice, that a general rule for transferring jurors be adopted. The need for the rule is to provide a uniform method of such transfers. The court is directly allowed by statute to make a special order, outside of a general rule, to accomplish the same result. Undoubtedly division No. 13 could specially direct the sheriff to apply to division No. 3 to obtain three jurors for service. This was done, and that suffices.

(289 S.W.)

of affidavits, by filing as exhibits, will not be scire facias was issued and placed in the considered, even though trial court may have hands of the sheriff. considered them at hearing.

On February 18, 1925, the surety, appellant here, filed a motion and, it is asserted,

Appeal from St. Louis Circuit Court; certain affidavits to set aside the forfeiture

and cancel the bond. The court took this matter under advisement until March 27, Proceeding by scire facias against Jake 1925, when the motion to set aside the forWeiss, as surety on a bail bond given for ap- feiture was overruled and the cause conpearance of James A. Jones in answer to | tinued to April 2, 1925. The record is silent charge of carrying concealed weapons. until the entry of May 22, 1925, when the Judgment for the State, and the surety appeals. Affirmed.

At the threshold we have, sua sponte, considered the question of the jurisdiction of this court. It has been ruled many times by our Supreme Court that in a case of this character, the bond being given in a criminal case, the proceeding was essentially criminal From so much of the record as is properly in nature, and that if the bond, regardless before us, it appears that one James A. of the amount, was given in a felony case, Jones, as principal, and appellant, as surety, the appeal lies to the Supreme Court. State on October 1, 1924, entered into a penal bond V. Hoeffner, 137 Mo. 612, 38 S. W. 1109; State in the sum of $1,000 for the appearance of V. Lacker, 263 Mo. 291, 172 S. W. 369; State the principal in the St. Louis court of crim-V. Wilson, 265 Mo. 1, 175 S. W. 603. inal correction on October 7, 1924, to answer

surance commissions held not to state cause of action at law (Rev. St. 1919, § 1220).

Petition to recover commissions for selling and renewal of insurance held not to state cause of action at law, in view of Rev. St. 1919, §

the case, we have only to look to the record, 7. Insurance 84 (6)-Petition to recover inproper. What is sought to be brought here in the form of affidavits by filing same here as exhibits, of course is of no avail, even though the trial court may have considered same at the hearing. We have set out the record very completely to show that the steps taken complied with the law, eventuating, as far as this record is concerned, in a proper adjudication of the forfeiture.

There being no reversible error in the record, the judgment is affirmed.

BECKER and NIPPER, JJ., concur.

BENNETT v. CRANE. (No. 19555.) (St. Louis Court of Appeals. Missouri. Dec. 7, 1926.)

I. Pleading 1-Equity and law are subject to same form of pleading (Rev. St. 1919, §§ 1220, 1254, 1257, 1276).

Equity and law are subject to same form of pleading. governed by Rev. St. 1919, §§ 1220, 1254, 1257, 1276.

2. Account 12-Action for accounting will not lie as sole ground for equitable relief. Action for accounting will not lie as sole ground for relief in equity.

1220.

8. Pleading 49-Petition containing improperly blended legal and equitable matters is demurrable.

Petition in which matters of legal cognizance and matters of equitable jurisdiction are improperly blended is demurrable.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Suit by Frederick D. Bennett, by Harris N. Bennett, his guardian, against Charles L. Crane. Judgment for defendant on demurrer, and plaintiff appeals. Affirmed.

Abbott, Fauntleroy, Cullen & Edwards. and Lee W. Hagerman, all of St. Louis, for appellant.

Leahy, Saunders & Walther, of St. Louis, for respondent.

DAUES, P. J. This suit was instituted by plaintiff in the circuit court of the city of St. Louis in December, 1923. The original petition was successfully demurred to, and thereafter plaintiff filed his first amended petition, to which a demurrer was also sustained. Thereafter, by leave of court, the second amended petiton was filed, to which, again, the court sustained a demurrer. The In action for accounting, allegation that de- grounds in the last demurrer were that the fendant collected certain percentage on commis- petition did not state a cause of action eisions under arrangement to pay them to plain-ther at law or equity against defendant, and, tiff, and that defendant holds them as trustee, is conclusion of law which is not admitted by

3. Pleading 214(5)-Demurrer does not admit conclusion of law that defendant holds funds collected as trustee.

demurrer.

4. Account 12-Action for accounting against one possessing all records and accounts does not require intervention of equity.

Action for accounting against one who has possession of all records and accounts does not require equity to take jurisdiction, in view of Code provision that plaintiff may, in law action, examine books and papers of adversary under order of court and may also examine opposite party.

5. Partnership 327(1)-Petition for accounting for insurance commissions held not to disclose that parties were partners, and that defendant held funds as trustee.

Petition for accounting for commissions for selling, and renewal of, insurance, held to show debtor and creditor relationship, and not to disclose that parties were partners, and that defendant held funds as trustee.

6. Equity 43-Equity will not intervene to prevent unjust enrichment, where there is adequate remedy at law.

Equity will not take jurisdiction to prevent unjust enrichment, where adequate remedy at law exists to prevent miscarriage of justice.

second, that the petition did not state a cause of action in equity. Having so sustained the demurrer, the court, nisi, ruled that since three demurrers to the petition had been sustained there should be a final judgment under the statute in favor of the defendant, and accordingly such judgment was entered. After appropriate motions, plaintiff brings the case here on appeal to review the action of the court on the demurrer.

Since the sole question on this appeal drives at the second amended petition, we set same out in full as follows:

"Now comes the plaintiff in the above-entitled cause and by leave of court first files this, his second amended petition, and for his cause of action against the defendant states:

"First. Plaintiff states that Frederick D. Bennett suffered injuries on the 25th day of September, 1916, which rendered him mentally incompetent and unable to manage his affairs, and that by proper proceedings had and held in the probate court of the city of St. Louis the said Frederick D. Bennett was adjudged to be incompetent and a person of unsound mind, and that Mrs. Frederick D. Bennett was appointed guardian of the said Frederick D. Bennett;