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ADMINISTRATION-Continued.

4. - :
Rights of Relatives: Statutory Provisions. The
provisions of Sec. 403, R. S. 1909, that the father, or if the
father be dead, or there be no lawful father, then the mother,
shall be the natural guardian of the minors and the curator of
their estates, does not exclude all others from the category of
preferences, and does not place relatives, such as uncles, on the
same footing as strangers. That statute did not repeal the
common law relating to the selection of those to be charged
with the nurture and care of orphaned children and their es-
tates, but left that law, as to the preference to be given relatives,
standing almost in its entirety. Ib.

5.

: Filing of Notice: Nearest of Kin: Uncles. All
other qualifications being equal, and no specific reason exist-
ing to the contrary, the nearest relatives of the minors whose
parents are both dead are entitled to preference in the selection
of a permanent curator of their estates; and where uncles, or
other nearest relatives, have filed timely application to be ap-
pointed, it should be considered by the court in all respects as
if the public administrator had not filed notice that he, as er
officio public curator, had taken charge of their estates. Ib.

6. Privies in Estate: Purchasers After Wrongful Approval of
Final Settlement. Purchasers of property from the adminis-
trator of an estate are in privity of estate and right with
him; and if his alleged final settlement was void as a final
settlement and, although approved as such by the probate
court, was in effect and law only n annual settlement, he is
bound by a judgment subsequently rendered against him as
administrator of the estate, and purchasers from him of es-
tate property, after such approval, without jurisdiction, of
his final settlement, are likewise bound ar take subject
to such judgment. State ex rel. v. Board of Trustees of Y. W.
C. A., 163.

APPEALS.

1. Verdict Contrary to Weight of Evidence: Reversal on Ap-
peal. On appeal a verdict will not be set aside on the ground
that it is contrary to the greater weight of the evidence, if there
is substantial evidence supporting it. It is for the jury to settle
a conflict in the evidence. Moore v. Railroad, 31.

2. 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 ex
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.

3. Motion For New Trial: Place in Record:

Called For But

Not Set Out in Bill. The proper place for a motion for a new
trial in a criminal case is not in that part of the transcript ucually
designated as the record proper, but in the bill of exceptions.
But when there is set out in the bill a recital that defendant
excepted to the action of the court in overruling his motion for
a new trial and that said motion is set out at certain pages "of
the transcript of the record hereto attached and made a part
268 Mo.-48

APPEALS-Continued.

hereof," and said motion is found at the pages designated, the
motion will be considered and reviewed on appeal. State v.
Shouse, 199.

4. New Trial: Weight of Evidence: Discretion of Trial Court.
Trial courts have a broad discretion in passing upon the weight
of evidence in their consideration of motions for a new trial.
Where a trial judge exercises his discretionary power of setting
aside a judgment on the ground that it is against th weight of
the evidence, his action in so doing wil. not be reviewed upon
appeal except upon a showing that ro verdict in favor of the
party to whom the new trial is granted should be allowed to
stand. State ex rel. v. Ellison, 225.

5.

:

: Ruling Adversely on Motion. When-
ever the trial court has ruled adversely upon a motion for the
new trial and has t its seal of approval upon the verdict in
matters having reference to the weight of evidence, the verdict
must be upheld if there is any substantial evidence to support
it. Ib.

6. 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.

7. Quo Warranto: Record Case for Affirmance:

Consolidated

School. The judgment for defendants in a suit in the nature
of writ of quo warranto to oust them as school directors,
on the ground that the consolidated school district for which
they essay to act is not a legal corporation, stands for affirmance
on the record proper on appeal, where the petition states a good
cause of action and the answer sets out in detail all the proceed-
ings tending to show that the district was legally established as
required by the statute and that respondents were legally elected
directors thereof, and where there is no bill of exceptions that
can be considered, if the statute itself is constitutional. Ib.

8. When Bill of Exceptions Necessary:

Certiorari. Where a

writ of certiorari was issued to the judges of the county
court, having for its purpose the quashing of the order of
that court establishing a public road, and by agreement the
entire records and rolls of the proceedings in said road case
before the county court "are to be considered a part of
the respondents' return," a bill of exceptions, setting forth
such records and other documentar, evidence and any oral
evidence heard and considered by the circuit court, is nec-
essary on an appeal from its judgment; and if no such bill
is presented to the Supreme Court, nothing but the record
proper, which would be the petition for the writ, the return,
the motion to quash the return and the judgment, can be con-
sidered. State ex rel. v. Staten, 288.

9. Public Road: Certiorari: Remedy by Appeal. An interested
land owner, objecting to the order of the county court establish-
ing a public road, has ample remedy by appeal to the circuit court,
as to damages, as to insufficient notices, as to the commis-

APPEALS Continued.

sioners being disinterested freeholders and as to a hearing of
a remonstrance, and therefore, since the trial in the circuit
court is de novo, . writ of certiorari to quash the order estab-
lishing the road should be denied. Ib.

10. Referee: Findings of Fact. Where the case is neither an
equitable suit nor one wherein a reference of the issues
would have been compulsory under the statute, the findings of
fact by the referee, if supported by any substantial evidence, are
conclusive on appeal. Implement Co. v. Machine Co., 363.

11.

: No Appeal from Finding. The failure of the
defendant, who the referee found had breached its contract,
to appeal from the judgment of the trial court affirming the
referee's findings of fact, closes the door to any reinvestiga-
tion of the facts at its instance. Ib.

12. Writ of Error: From Order Sustaining New Trial. The
propriety of the trial court's action in sustaining a motion
for a new trial cannot be listed under a writ of error, and any
error committed by the trial court in sustaining the motion
cannot be reviewed by writ of error. Section 2054, R. S.
1909, provides for a writ of error only on final judgment, and
section 2038 applies only in case of appeals. Strother, Admr.,
v. Railroad, 429.

ASSIGNMENT. See Corporatons, 1 to 4.

ASSUMPTION OF RISK.

Negligence. If the negligence charged is not a violation of the Safety
Appliance Act, the defense of assumption of risks may be a de-
fense under the Federal Employers' Liability Act, if the facts
authorize it. But the servant does not assume the risk of his
master's negligence; and if his injuries are due to his master's
failure to warn him when proper regard for his safety requires
such warning, the defense of the assumption of risks is not avail-
able. Young v. Lusk, 625.

ATTACHMENT.

2.

1. Against Nonresident: Dissolution Upon Answer. Section 2298,
Revised Statutes 1909, authorizing attachments against non-resi-
dents without bond, but declaring that "when any writ of attach-
ment has issued against a non-resident and the plaintiff has
given no bond, the attachment shall be dissolved as of course upon
the defendant entering his appearance and filing his answer
to the merits of the case," does not mean that the filing of an
answer to the merits, without anything more, without even an
application to or any action whatever by the court, of itself alone
dissolves the injunction. Donovan v. Gibbs, 279.

: Meaning of "Of Course." The words "of
course" used in said statute and similar statutes mean any action
or step taken in the course of judicial proceedings which will be
allowed by the court upon mere application without inquiry or
contest, but they imply some action by the court, upon motion or
other request.

Ib.

3. Answer Filed After Submission of Cause. After the non-resident
defendant in the attachment, appearing solely to question the
jurisdiction, had filed a motion, an alias summons was served

ATTACHMENT-Continued.

on the defendant, who was temporarily in the county, and the
cause was continued to be heard at the next term. At that term,
and on November 29th, he filed a general denial by way of an-
swer, no ruling having been made or asked on his plea to the
jurisdiction, and no leave to file his answer having been given
or asked. Judgment was rendered on November 30th, and the
record of that day recites: "Now on this day this cause coming
on to be heard, the judge of this court having previously heard
he evidence of witnesses and the argument of counsel, and hav-
ing taken the case under advisement, finds," etc. Held, that it
must be presumed that the trial court acted in accordance with
the law; and as the record recites that the cause was taken
under advisement some time prior to the rendition of judgment,
it will be presumed, in aid of the judgment, in the absence of
a recital of the precise date on which it was taken under ad-
visement, that it was under advisement when the answer was
filed on November 29th, and hence the filing of the answer with-
out leave and without setting aside the prior submission could
not render applicable the proviso of Sec. 2298, R. S. 1909, even
though it could be held to mean that a filing of an answer to the
merits in attachment against a non-resident in which no bond
has been given of itself alone dissolves the attachment. Dono-
van v. Gibbs, 279.

ATTENDANCE OF WITNESSES. See Depositions.

ATTORNEY'S FEE. See Costs of Litigation.

BAILMENTS.

Warehouse Receipts. If the "warehouse receipts and other instru-
ments" mentioned in the bond as containing the obligation to
be performed by the maker, were not in fact warehouse receipts,
the relation of bailor and bailee did not exist, and the bondsman
is not relieved from liability by a destruction, of the commodity
mentioned in the instruments, by fire which was not the result
of its fault or neglect. Bank v. Mills Co., 547.

BANKRUPTCY.

1. Fraud: Suit by Trustee in Bankruptcy. The extensive
powers given to a trustee in bankruptcy are for the pur-
pose of enabling him to uncover the fraudulent acts of a
corporation whose padding of its capital stock has enabled it
to obtain a fictitious credit; and, in such case, he can main-
tain a suit to recover dividends fraudulently paid to participat-
ing directors, whether the debts allowed against the bankrupt
corporation were in existence when the fraudulent acts were
done or subsequently made. Coleman v. Booth, 64.

2.

Right of Creditors. A creditor of a corporation has the
right to assume that its capital stock is paid up, when the
company so advertises; and in dealing with and giving credit to
it, he is authorized to assume that its capital stock is intact,
and has not been impaired by unauthorized or fraudulent
dividends or a fictitious capitalization. Ib.

BENEFIT ASSESSMENTS. See Taxes and Taxation.

BILL OF EXCEPTIONS. See Exceptions.

BOARD OF CURATORS. See State University.

BONDS.

1. Guaranty: Receipts for Grain: Ambiguous Meaning: Ex-
trinsic Evidence. If the language of a bond is ambiguous and
doubtful in its meaning, extraneous evidence may be introduced
and considered to determine its meaning. And the lan-
guage of a bond given to secure the faithful performance
of "receipts and other instruments" issued by "the Flana-
gan Mills & Elevator Company, engaged in the management
and operation of elevators and warehouses for the storage
of grain" and proposing "to issue warehouse receipts and
other instruments evidencing that it is holding grain and
other commodities, deliverable upon the request or order of
another person or his assignee" and reciting that "it is con-
templated by the parties hereto that warehouse receipts, to be
issued by the Flanagan Mills & Elevator Company, may he
hypothecated with the National Bank of Commerce as collat-
eral security," when read in connection with a note given
by said company to said bank reciting that to secure its
payment "the following warehouse receipt" is hereto attached
"as collateral security," and in connection with another in-
strument captioned a "warehouse receipt" and reciting that
there has been received in said "warehouse and elevators" a
certain number of "bushels of grain and its product, subject
only to the order hereon of the National Bank of Commerce,"
is ambiguous and doubtful, and extri sic evidence may be
considered for the purpose of determining whether the milling
company was a warehouseman, and whether the partie un-
derstood the written instruments denominated "warehouse re-
ceipts" to be in fact real and true warehouse receipts or
"other instruments" mentioned in the bond. Bank of Commerce
v. Flanagan Mills & Elevator Co., 547.

2.

-: Obligation to Deliver Grain upon Demand: Pledge:
Liability of Guarantor. The milling company issued a "ware-
house receipt" which recited that it had received "in Ware-
house and Elevators A. B. at Rich Hill, Mo., five thousand
bushels of grain and its product, subject only to the order
hereon" of a certain named bank, and used the receipt as
collateral security for money borrowed from the bank, and a
guaranty company entered into a bond obligating itself that
the milling company would "faithfully redeem all such re-
ceipts and other instruments issued by it" and fully comply
with every "obligation incident thereto or arising therefrom,
and at all times deliver the grain demandable by any ware-
house receipt or other instrument issued" by the milling com-
pany "in connection with the business of conducting said
elevator." The milling company used the money so borrowed
in buying grain, which it stored in its elevator and, in the
usual way of conducting its milling business, ground into
products which it stored in its warehouse, all of which were
destroyed by accidental fire. The grain never was in posses-
sion of the bank. Held, that the transaction was not a sale,
nor a mortgage: nor was it a pledge of the grain or its
product, because there was no delivery either in fact or other-
wise; but when the note, receipt and bond are read together,
together with the extrinsic evidence showing that the milling
company was engaged in the usual milling business, the pri-
mary purpose intended is seen to have been collateral secur-
ity, and the agreement to have been an obligation to deliver
the commodity mentioned in the "receipt" upon default in

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