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State ex rel. v. Gordon.

of bonds in other denominations. It is just as easy and just as feasible to practically defeat this provision by making one issue to consist of a total of two hundred dollars, and thereunder issue one-half of such issue in denomination of one hundred dollars. Such a view (and to this conclusion the contentions of relators inevitably lead) renders the provision absurd; a thing, as the rules of construction admonish us to hold, the Legislature could not have had in mind. [State ex rel. v. Cook, 178 Mo. 189.] On the contrary, they doubtless believed that a provision compelling the issuance of bonds in such so-called popular amounts would be of advantage, either in the voting of the bonds, or in the sale thereof, or both.

If after assent given by the voters, these bonds may be issued in monthly series, at the arbitrary will of the county court, then it is obvious that they may be so issued in yearly series, and it follows that there is no limit to the power of the county court to subdivide the bonds voted, either in time or maturity or number, or denomination. So instead of paying off this bonded debt in twenty years, as the apparent intent of the Legislature was, it becomes possible to defer and extend such payment for twenty-five or thirty years. It is a plausible view that the Legislature, by the single loose expression "one issue,' referred to the whole issue assented to at any one election, and that they did not contemplate many issues spread over a term of years beyond the statutory twenty. The privilege of paying in thirty or forty years, instead of twenty, might well induce a reckless creation of bonded indebtedness, since much of the burden of its discharge would then fall upon a distant posterity, after the roads which are built with the money shall have been ground to dust and blown away.

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State ex rel. v. Gordon.

The ease with which the concrete facts show this provision can be, and has, in the instant case, been evaded, proves that the thought was in the mind of the Legislature that one-half of the road bonds issued pursuant to one or any given assent of the voters, should be in denominations of one hundred dollars or less, and so we hold.

Likewise it is obvious that a bond "callable" only after a fixed date, does not comply in this respect with a statute which expressly says that "all bonds shall contain a provision that they are payable at any time within twenty years upon the call of the county." We think that this proviso means what it says, and that a bond which expressly provides to the contrary is not entitled to registration. Certainly, the county court, at least, before they were confronted with an insuperable obstacle to following the letter of this statute in the two behalves mentioned, could not set up their judgment as to what was best or more expedient, or better economy, or better business against that of the Legislature.

When the present issue of bonds is cancelled and destroyed and a new issue made pursuant to law which complies with this statute, as to denominations thereof and date of optional payment, we see no reason why such new issue should be refused registration. But since the specified provisions of the instant issue are contrary to the plain letter of the law, no insuperable obstacle to following the law being shown, the respondent was right in refusing registry, and our alternative writ should be quashed. Let this be done.

All concur except Woodson, C. J., and Bond, J., absent.


ABSENT VOTERS. See Elections.


Appeal: Motion for New Trial: Set Out in Record Proper. It is not sufficient to set out the motion for a new trial in the abstract of the record proper as a part thereof. The proper place for a motion for a new trial is in that part of the abstract containing the bill of exceptions, and it must either be set out therein or a call for it inserted therein, else it cannot be considered on appeal, nor can any part of such alleged bill be considered. State ex inf. v. Morgan, 265. ACTIONS.

Jurisdiction. An action

1. Federal Employers' Liability Act: for damages for personal injuries bottomed on the Federal Employers' Liability Act cannot be removed to the Federal court on the ground of diverse citizenship. Moore v. Railroad, 31. 2. Accident Insurance: Vexatious Delay: Separate Issue: Evidence Confined to Main Issue. Under the statute a plaintiff in an action on an insurance policy, if he desires to recover damages for vexatious delay, must have in his petition allegations showing that he is entitled to those damages, and these allegations then become a triable issue, and being such any evidence that tends to prove that issue is competent, whether such evidence tends to prove the main issue or not; and if there is sufficient evidence to support that issue, plaintiff is entitled to recover separate damages for such vexatious refusal to pay but only when he recovers on the policy. But evidence on that issue cannot be confined to matters and things which would tend to show defendant's liability for the principal sum of the policy. Fay v. Ins. Co., 373.

3. Cost of Litigation: Attorney's Fees: Independent Action. The successful plaintiff in a suit to set aside a deed for fraud and for an accounting, cannot maintain a subsequent independent action to recover the cost of litigation, including attorney's fees, incurred in the necessary prosecution of that suit. Leslie v. Carter, 420.



In Principal Suit: Res Adjudicata. If costs of litigation, including attorney's fees, are recoverable by the successful litigant, a claim therefor should be made in the principal suit; otherwise, they are barred by the rule of res adjudicata, for if recoverable for a breach of duty or contract in issue in that case, it would be to split causes of action and multiply litigation to allow them to be recovered by a subsequent independent suit. Ib.

5. Res Adjudicata: Rule. All issues which might have been raised and determined in a given case, but were not, are as completely foreclosed as if they had been adjudicated and included in the verdict and judgment therein.

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6. Causes of Action: Meaning: Survival. The words "causes
of action" used in the statute (Sec. 5438, R. S. 1909) declaring
that "causes of action upon which suit has been or may here-
after be brought by the injured party for personal injuries"
shall survive the death of either the injured party or the party
responsible for the injury, mean matters for which actions may
be brought, the right to bring suits, the facts or combination of
facts that give rise to rights of action, the right to institute and
prosecute proceedings, etc.; and, therefore, it is not the suits or
actions that survive, but the causes or rights of action upon
which such suits are based. Kohnle v. Paxton, 463.


: Survival: Limited to Suits Brought. Held, by WALKER,
J., as to which the other judges express no opinion, that, under
Sec. 5438, R. S. 1909, the right of survival of a cause of action
for personal injuries cannot be limited to cases in which ac-
tions were pending at the time of the death of the injured
party or the tortfeasor. The right of action having accrued,
the death of a party in interest before the institution of a
suit to enforce such right will not abate the action, or bar
the right to bring it. [Disapproving Showen v. Street Ry.,
164 Mo. App. 1. c. 47.] Ib.

8. Joint Tortfeasors: Contribution: Primary Liability. Where
the record shows a primary liability of the telephone company as
between it and the city for injuries due to the falling of a
pedestrian into a hole resulting from the placing of a telephone
pole along a public street, the company does not make out
against the city a prima-facie case for contribution by alleging
and proving that both it and the city were sued by the pedes-
trian and that he recovered a judgment against both jointly.
Telephone Co. v. St. Louis, 485.


1. Appeal: From Probate Court: Refusal to Appoint Curator.
An appeal lies from an order of the probate court refusing to
revoke the authority of the public administrator, who, as er
officio public guardian and curator, has taken charge of the
estates of minors, and refusing to appoint their nearest kin as
curators. Such an order is a final order and judgment of the
probate court, and Sec. 468, R. S. 1909, authorizes an appeal in
such case. In re Estate of Brinckwirth, 86.

2. Public Administrator: Taking Charge of Minor's Estate:
Not a Judicial Act. The public administrator does not have
concurrent jurisdiction with the probate court to determine who
shall take charge of a minor's estate, and a filing of a notice
by him that he has taken such charge does not forestall ap-
pointment by the court. The Constitution (Sec. 34, art. 6)
gave the probate court "jurisdiction over the appointment of
guardians and curators of minors," and Sec. 464, R. S. 1909,
says that "the public administrator shall be ex officio public
guardian and shall have charge of all estates of minors that
may, by the order of the probate court, be placed in his charge."



:Subject to Revocation. The authority of the
public administrator to take charge of the estates of minors
whose parents are both dead, is simply provisional, and subject
to termination by the probate court. Ib.

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