the term, payable in monthly installments. MASON et al. v. JAMES M. CARPENTICR The suit proceeds for a commission of oneREALTY CO. (No. 14110.)

half of 1 per cent. on the amount of rental (St. Louis Court of Appeals. Missouri. Nov. thus reserved.

2, 1915. Rehearing Denied Nov. 23, 1915.) The evidence tends to prove that plaintiffs, 1. BROKERS Om88—REAL ESTATE BROKERS-acting through Mr. Trepp, visited Julius F. ACTION FOR COMMISSION-QUESTION FOR Schultz, the local manager of the Regal Shoe JURY.

In an action by a firm of real estate bro-Company, a number of times and endeavored kers for a commission, whether it or another to persuade him to lease this property. There agency was the efficient and procuring cause in is evidence, too, that Mr. Martin and Mr. effecting defendant's lease to a third party held Breitt, representing the Holbrook-Blackweldfor the jury.

er Real Estate Trust Company, visited Mr. [Ed. Note. For other cases, see Brokers, Cent. Dig. 88 121, 123-130; Dec. Dig. Cm88. Schultz a number of times, urging a lease 2. BROKERS Cm 53—REAL ESTATE BROKERS- of the same property. Schultz was the local RIGHT TO COMMISSION.

manager of the Regal Shoe Company, but not Where the owner of realty placed it in the authorized to enter into a contract of lease. hands of two real estate firms to lease, and one It appears that Mr. Gould, the assistant cause of effecting the lease, the other firm had treasurer of the shoe company, was in authorno claim against the owner for a commission, ity concerning such matters. Plaintiffs neveven though its efforts aided to some extent thé er, at any time, saw Mr. Gould concerning final consummation of the lease by the leasing this matter, though it is clear that they nefirm.

[Ed. Note. For other cases, see Brokers, gotiated with and submitted propositions to Cent. Dig. $ 74; Dec. Dig. Om53.]

Schultz. Plaintiffs also introduced Mr. Car

penter, defendant's vice president, to Schultz Appeal from St. Louis Circuit Court; Wm. and induced Mr. Carpenter to submit a writT. Jones, Judge.

ten proposition to the Regal Shoe Company "Not to be officially published.”

through Schultz. On the other hand, Martin Suit by C. Homer Mason and Martin F. and Breitt, acting for the Holbrook-BlackTrepp, copartners doing business as the Ma- welder Real Estate Trust Company, negotiatson-Trepp Real Estate Company, against the ed directly with Mr. Gould of the Regal Shoe James M. Carpenter Realty Company. Judg- Company. Finally, when the lease was nement for plaintiffs, and defendant appeals. gotiated, defendant paid the Holbrook-BlackReversed, and cause remanded.

welder Real Estate Trust Company its comE. W. Banister, of St. Louis, for appellant. mission in the view that such company, Arnstein & Arnstein, of St. Louis, for re- through Martin and Breitt, had effected the spondents.

lease with Gould for the shoe company and

declined to pay plaintiffs. It therefore apNORTONI, J. This is a suit by a real es- pears that the evidence reveals conflicting tate broker for commissions. Plaintiff recov-claims on the part of the two real estate ered, and defendant prosecutes the appeal. agencies as to which was the procuring cause

[1] Defendant, James M. Carpenter Realty of the lease. There is an abundance in the Company, was preparing to erect a building evidence tending to prove that the Holbrookat 312–314 North Sixth street in St. Louis Blackwelder Real Estate Trust Company, actand desired to procure a reliable tenant ing through Martin and Breitt, effected the therefor. It is conceded that defendant em- lease, and there is substantial evidence, too, ployed plaintiffs to procure such tenant for tending to prove that the plaintiffs, Mason it and it appears to be conceded, too, that it and Trepp, were the procuring cause. Alemployed the Holbrook-Blackwelder Real Es- though it be true that neither Mason nor tate Trust Company to the same end. A Trepp ever met Gould, the officer of the Recommission was to be paid the broker in gal Shoe Company authorized to lease the event a lease was effected. It appears that property, the evidence tends to prove that defendant furnished plans of its building to their propositions were first submitted to both plaintiffs, Mason and Trepp, copartners Gould through the medium of Schultz, and it in the real estate business in St. Louis, and is quite clear that plaintiffs interested Schultz likewise furnished plans to the Holbrook- in the location and the building. It appears Blackwelder Real Estate Trust Company for that Schultz, although local manager for the the purpose of showing them to probable ten- shoe company, was without authority to neants. Both of these real estate agencies were gotiate a lease but received proposals for the engaged in an effort to lease the premises Regal Shoe Company and submitted them to for defendant, and it seems that both were his superior officer, Mr. Gould. Schultz was endeavoring to induce the Regal Shoe Com- interested too, in the location of the business pany to enter into such lease, but neither as he received, besides his salary, a commisknew of the activities of the other for a time. sion on sales. We regard the question as to Finally the Regal Shoe Company leased the which one of these agencies was the efficient premises from defendant for a term of 20 and procuring cause in effecting the lease years at a stipulated rental of $270,000 for ) as one for the jury, and it appears to be con

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ceded on the part of defendant that both did to some extent aid in the leasing of said agents were authorized by it to find a tenant property" on the terms prescribed. However, the com--and substituted for these words the folmission was to be paid only to the broker lowing: who succeeded in effecting the lease. The "Plaintiff Trepp made efforts to interest the central question in this case, as in all others witness Schultz

in said property and thereby

to induce the Regal Shoe Company to lease wherein claims for commissions are present- same.” ed by two different brokers on account of the

The instruction as requested properly desame transaction, is: Which effected the clared the law of the case, for if the Hollease? or, as the phrase goes, Which was the brook-Blackwelder Real Estate Trust Comefficient and procuring cause in consummat- pany, through Martin and Breitt, were the ing it? See Gamble v. Grether, 108 Mo. App. procuring cause in effecting the lease, then 340, 83 S. W. 306. In this connection it is the verdict should be for defendant, even said the broker must be the procuring cause though the efforts of plaintiff Trepp to interof the contract of sale or lease on which he est Schultz and induce the Regal Shoe Comdepends for recovery. It will not suffice for pany to take the property on the terms prohis act to be one of a chain of causes proposed did to some extent aid in the leasing ducing the contract; it must be the procur- of such property. Manifestly, this is true, ing or inducing cause or, as has been said, for the mere aiding to some extent, without it must be the causa causans. Rainsey v.

more, in the leasing of the property amountWest, 31 Mo. App. 676; Mead v. Arnold, 131 ed to no more than a link in the chain of Mo. App. 214, 110 S. W. 656.

causation, while the central question on [2] It is argued that the court, through which the liability of defendant turns is as giving and refusing instructions, ignored this to who was the procuring and efficient cause. principle and treated the case as though it The instruction as given after modification was no defense against the claim of the plain- by the court is as follows: tiffs if the Holbrook-Blackwelder Real Es

“The court instructs you that the burden is tate Trust Company, through Martin and on the plaintiffs to prove to your reasonable Breitt, procured the leasing of the property satisfaction by a preponderance of the evidence if the matter were aided, to some extent, by of the lease from the James M. Carpenter Real

that they are the efficient and procuring cause the efforts of plaintiff, and we are persuad-ty Company to said Regal Shoe Company, ed to this view. Obviously, if the Holbrook- which has been read in evidence, and if you beBlackwelder Real Estate Trust Company, lieve and find from the evidence that plaintiffs through Martin and Breitt, were the efficient said Regal Shoe Company's leasing the property

were not the efficient and procuring cause of and procuring cause of effecting the lease, described in said lease, but that such leasing then such was a valid defense against plain was brought about by the Holbrook-Blackwelder tiffs' claim, and this is true though their ef- Real Estate Trust Company through the efforts

and exertions of the witnesses Martin and forts in endeavoring to lease the premises Breitt, or either of them, then your verdict to the same tenant aided the final consumma- must be for the defendants, even though you tion of the lease to some extent.

See Real may believe and find from the evidence that the

plaintiff Trepp made efforts to interest the witEstate Co. v. Real Estate Co., 144 Mo. App. ness Schultz in said property and thereby to 620, 129 S. W. 419. Touching this matter, induce said Regal Shoe Company to lease defendant requested the court to instruct the same.' jury as follows:

From the modification of the instruction, it “The court instructs you that the burden is appears the court entertained the view that on the plaintiffs to prove to your reasonable it was a defense to the suit if the Holbrooksatisfaction by a preponderance of the evidence Blackwelder Real Estate Trust Company that they were the efficient and procuring cause of the lease from the James M. Carpenter Real- were the procuring cause of the lease only ty Company to said Regal Shoe Company, in event plaintiff Trepp made efforts to inwhich has been read in evidence, and if you terest Schultz of the Regal Shoe Company in believe and find from the evidence that plaintiffs were not the efficient and procuring cause of the property, and that such efforts did not said Regal Shoe Company leasing the property go to the extent of aiding to some extent in described in said lease, but that such leasing the final consummation of the lease. Defendwas brought about by Holbrook-Blackwelder Real Estate Trust Company through the efforts ant was entitled to the proposition requestand exertions of the witnesses Martin and ed in the instruction to the effect that it was Breitt, or either of them, then your verdict must a valid defense to the action if the Holbrookbe for the defendants, even though you may be- Blackwelder Real Estate Trust Company lieve and find from the evidence that the efforts of the plaintiff Trepp to interest the wit were the efficient and procuring cause of the ness Schultz in said property and thereby in- lease, and this, too, even though the efforts duce said Regal Shoe Company to lease same, of plaintiff to some extent aided in consumdid to some extent aid in the leasing of said

mating the transaction. property.' The court refused this instruction as re

Because of the error in refusing the inquested; also the court modified the instruc-struction as requested, the judgment should

It is tion by eliminating therefrom the concluding be reversed and the cause remanded.

so ordered. words as follows:

"Efforts of the plaintiff Trepp to interest the witness Schultz in said property and thereby

REYNOLDS, P. J., and ALLEN, J., con

"stating such loss or destruction” is filed GRAVES et al. v. METROPOLITAN LIFE with it, and it seems to be conceded by counINS. CO. (No. 14083.)

sel that no such affidavit was filed with the (St. Louis Court of Appeals. Missouri.

justice; in fact that counsel claims its filing Nov. 2, 1915.)

is not jurisdictional. The objection to the 1. JUSTICES OF THE PEACE O 98-PLEADING

lack of affidavit was made at the trial, is STATUTORY PROVISIONS – FILING COPY OF insisted on by briefs and is now relied upon INSTRUMENT.

for affirmance of the judgment. Under Rev. St. 1909, $ 7413, providing rela

Our statute, section 7413, Revised Statutes tive to justice's court, that when a suit is founded upon any instrument of writing purporting 1909, provides: to have been executed by defendant, and the

"When the suit is founded upon any instrudebt or damage claimed may be ascertained by ment of writing purporting to have been executsuch instrument, it shall be filed with the justice, ed by the defendant, and the debt or damages and no other statement or pleading shall be re- claimed may be ascertained by such instrument, quired, and section 7414, providing that, if such the same shall be filed with the justice, and no instrument be alleged to be lost or destroyed, it other statement or pleading shall be required.” shall be sufficient for plaintiff to file the affidavit of himself or some other credible person,

Section 7414, Revised Statutes 1909, prostating such loss or destruction, and setting vides: forth the substance of such instrument, in an "If such instrument be alleged to be lost or action on an insurance policy alleged to have destroyed, it shall be sufficient for the plaintiff been destroyed, there could be no recovery where to file with the justice the affidavit of himself, no affidavit was filed ; an insurance policy be- or some other credible person, stating such ing such an instrument as is required to be loss or destruction, and setting forth the subfiled.

stance of such instrument." [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. $ 335; Dec. Dig. Om98.]

Beyond question this action is on an in2. JUSTICES OF THE PEACE Cw58—JURISDIC- strument of writing-an insurance policyTION TO BE SHOWN BY THE RECORD.

purporting to have been executed by the deThe jurisdiction of a justice of the peace fendant-one by which the amount of the must appear affirmatively from the record. [Ed. Note.-For other cases, see Justices of

debt or damages claimed may be ascertained the Peace, Cent. Dig. $8 207–215; Dec. Dig. from the policy. It is such an instrument as 58.]

is required to be filed with the justice. If 3. JUSTICES OF THE PEACE 141-APPEALS- not filed because lost or destroyed, then JURISDICTION.

plaintiff is required to file with the justice Where a justice of the peace had no juris- the affidavit of himself or some other credidiction, the circuit court had no jurisdiction on ble person, stating such loss. That was not appeal, as its jurisdiction is derivative.

[Ed. Note. For other cases, see Justices of done here. the Peace, Cent. Dig. $$ 467-476; Dec. Dig. Our Supreme Court, in Hudson v. Wright, 141.)

204 Mo. 412, loc. cit. 431, 103 S. W. 8, 14, has Appeal from St. Louis Circuit Court; Wm. distinctly held that a judgment rendered by T. Jones, Judge.

a justice of the peace on a lost instrument is "Not to be officially published."

void unless it appears—in case of its lossAction by Emery Graves and others against that the statutory affidavit was filed. Says Metropolitan Life Insurance Company. Judge Lamm in that case and at that page: From a judgment for defendant, plaintiffs

"Now, in cases of lost notes, the justice either appeal. On rehearing. Reversed and re-judgment without, the filing of such affidavit.

acquires jurisdiction by, or may not proceed to manded, with directions, and certified and * * * Hence, jurisdiction over the subjecttransferred to the Supreme Court.

matter, if not appearing in the judgment it

self, should at least appear somewhere in the James J. O'Donohoe, of St. Louis, for ap- proceedings. * * * Absent jurisdiction, the pellants. Nathan Frank and Louis B. Sher, judgment was void, and, therefore, subject to both of St. Louis, for respondent.

collateral attack.”

But, says learned counsel for appellant, REYNOLDS, P. J. This case is before us this decision applies alone to notes. That is on a rehearing.

not the statute. It applies to any instrument A point briefed by counsel for respondent of writing purporting to have been executed on the first hearing but not passed upon by by the defendant when the debt or damages us is again urged, and as it lies at the root claimed may be ascertained by such instruof the case, we are bound to consider it. ment.

[1] The action was commenced before a [2, 3] It nowhere appears in this record justice of the peace on an insurance policy that the statutory affidavit was filed before alleged to have been destroyed. The state- the justice and his jurisdiction must appear ment filed before the justice is not in the affirmatively; without that the circuit court abstract, but on appeal to the circuit court has no jurisdiction of the cause, as its jurisan amended statement was filed, including a diction on appeal is derivative. As it had no new party and again averring that the policy power to hear and determine the case, plainin suit had been destroyed-burnt. This tiff cannot recover, nor can the judgment in amended statement is not verified either by favor of defendant on the cause of action plaintiffs or by any one else--no afiidavit stand.

The judgment of the circuit court should $1,646.01 against the Ozark Cooperage Comtherefore be reversed and the cause remand- pany, a Missouri corporation. The petition ed with directions to the circuit court to al- does not disclose the date of the rendition of low plaintiff to take a nonsuit; or failing

or failing such judgment, though it is averred that the that, the court will enter an order dismissing suit in which the same was rendered was inthe case.

But as the Kansas City Court of stituted on February 23, 1905. It is a verred Appeals, in Mansur v. Linney, 162 Mo. App. that while plaintiff's aforesaid suit was pend260, 144 S. W. 872, as well as in Watkins ing in the United States Circuit Court, to v. Brotherhood of American Yeomen, 188 Mo. wit, on April 20, 1905, the defendant thereApp. 626, 176 S. W. 516, decisions subsequent in, referred to in the petition as "Ozark Coopto that of the Supreme Court in Hudson v. erage Company No. 1,” transferred its assets Wright, supra, has, as we understand its to the Ozark Cooperage Company of St. decisions, held to the contrary, this cause, Louis, Mo., referred to in the petition as together with the original transcript therein "Ozark Cooperage Company No. 2," likewise must be and is hereby certified and trans- a Missouri corporation; and it is alleged ferred to the Supreme Court.

that there was a "pretended dissolution” of

the original corporation. It is averred that NORTONI and ALLEN, JJ., concur. the latter was "at the time of said pretended

dissolution *

a large and prosperous

corporation having assets of more than fifty WALKER v. OZARK COOPERAGE & LUM- thousand dollars ($50,000.00) over and above BER CO. OF NEW JERSEY.

its liabilities.” Further allegations are made (No. 14063.)

with which we are not now concerned, and it (St. Louis Court of Appeals. Missouri. Nov. 2, is then alleged that later "Ozark Cooperage 1915.)

Company No. 2" transferred all of the as1. COURTS 231 MISSOURI COURT OF AP-sets obtained by it from "Ozark Cooperage PEALS-JURISDICTION.

Where a creditor, who had obtained judg- Company No. 1” to “Ozark Cooperage & Lumment against a Missouri corporation for $1,600, ber Company of New Jersey," a New Jersought to have a receiver appointed to take over sey corporation, which had been licensed to the assets of the corporation and its successors, transact business in the state of Missouri. claiming that the corporate assets, which exceeded its liabilities by over $50,000, had been It appears that all of the said corporations fraudulently transferred to a second corporation, were originally named as defendants, as well and by that to a third, the right involved is one as certain individuals alleged to have been involving a sum in excess of the jurisdiction of officers and directors of the three companies, the Court of Appeals.

[Ed. Note. For other cases, see Courts. Cent. but that the suit was dismissed as to all deDig. $8 487, 491, 644, 646-648, 650, 652-659, fendants, except the Ozark Cooperage & Lum661; Dec. Dig. 231.]

ber Company of New Jersey, respondent 2. COURTS Om487 — MISSOURI COURT OF AP- herein. PEALS—TRANSFER OF CAUSES.

The petition charges that the transfers of Where the sum involved appears to be in excess of its jurisdiction, the Court of Ap- the assets aforesaid were without considerapeals should on its own motion transfer the tion, and were fraudulently made by the officause to the Supreme Court.

cers and directors of said corporations for the [Ed. Note.--For other cases, see Courts, Çent. purpose of hindering, delaying, and defraudDig. 88 703, 1307-1315; Dec. Dig. Om 187.)

ing the plaintiff; and it is alleged that the Appeal from St. Louis Circuit Court; Eu- assets of the two Missouri corporations have gene McQuillin, Judge.

been fraudulently “intermingled and comAction by George W. Walker against the mingled,” so that the same "cannot be disenOzark Cooperage & Lumber Company of New tangled, separated, reached, or set apart by Jersey and others, dismissed except as to the the ordinary process of law," but that the named defendant. From a judgment for the sum of $7,000 was on deposit in the National named defendant, plaintiff appeals. Trans- Bank of Commerce of St. Louis to the credferred to Supreme Court.

it of the Ozark Cooperage & Lumber CompaJohn A. Harrison, Henry B. Davis, and ny of New Jersey at the time of the filing of Erd & Massey, all of St. Louis, for appellant. the petition. The prayer of the petition is George B. Webster, of St. Louis, for respond as follows: ent.

"Wherefore plaintiff prays that this court will order, decree, and appoint one receiver for said

Ozark Cooperage Companies, Nos. One (1) and ALLEN, J. This is a suit in equity. The Two (2), respectively, and said Ozark Cooperage court below sustained a demurrer to plain- & Lumber Company of the State of New Jersey, tiff's petition, and from final judgment enter- to impound all the assets of said companies, ed upon such demurrer the plaintiff appealed and to disentangle all the assets of all of said

companies, and take charge of the affairs of to this court.

said three corporations, and apply, out of the The petition, inter alia, alleges that plain- assets of said Ozark Cooperage Company No. tiff obtained a judgment in the United States One (1), now intermingled as aforesaid, so much Circuit Court for the Eastern Division of the with interest and costs; and that the defendant

thereof as will pay plaintiff's said judgment, Eastern District of Missouri in the sum of herein, the said Ozark Cooperage & Lumber

Company of New Jersey, be restrained and en- "Our uniform practice has been to order the joined from drawing any check or checks upon transfer to the Supreme Court of all causes the fund aforesaid, now on deposit in said Na- wherein any reasonable doubt exists touching tional Bank of Commerce, in St. Louis, and our jurisdiction. This enables the parties to that said bank be restrained and enjoined from have the question of jurisdiction set finally at paying out any moneys on said checks; and rest in the particular case by filing a motion to that the affairs of the said Ozark Cooperage & remand, and obtaining the views of the Supreme Lumber Company of New Jersey, said above- Court on such motion.” described fraudulent corporation, be wound up,

It is therefore ordered that the cause be and that it, and its officers and servants, be forever restrained and enjoined from further do- transferred to the Supreme Court, upon the ing business in the state of Missouri. And that ground that the amount involved is beyond the affairs of said Ozark Cooperage Company No. our jurisdiction. One (1), and of said Ozark Cooperage Company of St. Louis, Missouri, being Company No. Two (2), be finally wound up by this court, and that REYNOLDS, P. J., and NORTONI, J., conplaintiff recover his claims out of said assets, cur. and for such other and further and general relief, whether of the same or of a different nature, as to the court may seem meet and proper.'

PICKEL V. PICKEL. (No. 14750.) [1] It appears that the case is one without

(St. Louis Court of Appeals. Missouri. the appellate jurisdiction of this court. At

Nov. 2, 1915.) any rate we have such great doubt as to our 1. APPEAL AND ERROR 936_REVIEW-PREjurisdiction that we think it our duty to

SUMPTIONS. transfer the cause to the Supreme Court. The action of the trial court is always preWhile the amount of plaintiff's claim-i. e., must show it; hence an award of a lump sum

sumed correct, and the party assigning error the amount for which plaintiff obtained judg- for attorney's' fees must, where there were nument against the original corporation-is merous items, be presumed to have been only within the pecuniary limit of our jurisdic- for those services for which compensation could tion, the object of the suit is to have a re- be awarded. ceiver appointed to take charge of all of Error, Cent, Dig. 88 3782, 3787; Dec. Dig.

[Ed. Note.-For other cases, see Appeal and the aforesaid assets alleged to have been ul- 936.] timately transferred to the respondent, the 2. APPEAL AND ERROR Om 846_REVIEW-ADNew Jersey corporation. It is alleged that MISSION OF EVIDENCE. the original Missouri corporation was “large In an action tried to the court, the erroneand prosperous,” having assets of more than unless it appears to have affected the decision. $50,000 over and above its liabilities. It is

[Ed. Note. For other cases, see Appeal and said that these assets were transferred to Error, Cent. Dig. 88 3347–3362, 3366; Dec. Dig. another Missouri corporation and by the m846.] latter conveyed to the respondent. The pe- Appeal from St. Louis Circuit Court; Eutition seeks the appointment of a receiver to gene McQuillin, Judge. take charge of such assets and adninister "Not to be officially published." the same. Thus it is sought to divest the re- Action by Ella M. Pickel against Fredspondent of title to assets which, according erick J. Pickel. From a judgment awarding to the allegations of the petition, are pre- plaintiff expenses and suit money, defendant sumptively of the value of $50,000 or more. appeals. Affirmed. The petition prayed that all three corpora

Fauntleroy, Cullen & Hay, of St. Louis, for tions be finally wound up, but the only de- appellant. Randolph Laughlin, of St. Louis, fendant now remaining, this respondent, is

for respondent. a foreign corporation. However, it appears that the monetary value of the right which

REYNOLDS, P. J. From a judgment would be lost by respondent in the event of awarding plaintiff $85.80 for expenses and the appointment of a receiver, whereby re- $400 “as additional suit money," a total of spondent would be divested of all of its prop- $485.80, defendant has appealed. erty in this jurisdiction, is in excess of the

The expenses and the "suit money" are pecuniary limit of our jurisdiction. See State said to have accrued and fallen due in the ex rel. Union Electric Light & Power Co. v. course of a long and varied litigation beReynolds et al., 256 Mo. 710, 165 S. W. 801, tween plaintiff and defendant in named casand authorities collated and discussed.

es, and plaintiff on the one side and defend[2] It is true that our jurisdiction to hear ant and his father on the other, in two of and determine the appeal is not challenged, the cases. The present proceeding is in the but it is our duty, sua sponte, to determine, case of plaintiff Ella M. Pickel versus dein the first instance, the question of our own fendant Frederick J. Pickel (see 243 Mo. 641, jurisdiction, that we may not assume to dis- 147 S. W. 1059), and is for additional servpose of an appeal in a case wherein we are ices in that and three other cases, namely, without jurisdiction and our acts therein Ella M. Pickel v. William Pickel and Fredcoram non judice and void. And as was said erick J. Pickel, 251 Mo. 197, 158 S. W. 8, by Rombauer, P. J., in Gartside v. Gartside, Ella Pickel v. William Pickel and Frederick 42 Mo. App. 513, quoted in State ex rel. v. J. Pickel, 259 Mo. 202, 168 S. W. 609, and Reynolds, supra:

Ella M. Pickel v. Frederick J. Pickel, 176 Mo.