State v. DePriest.

Appellant's counsel objected to the above remarks on the ground that it was a comment on defendant's failure to testify as a witness. The court was not asked to rebuke counsel, but to discharge the jury.

Mr. O'Brien, representing the State, in justification of his remarks, said:

"When Mr. Leahy mentioned the fact about his rep utation, that gave me the right to talk about it. Up until that time I had no right to mention his reputation and I could not say a word about his reputation until his reputation was put in issue by himself."

The trial court heard Mr. Leahy's argument, and as defendant's counsel did not deny having told the jury that defendant "comes here with the best of reputation," appellant is in no position to complain of said remarks. The trial court very properly refused to discharge the jury, as requested by defendant.

The objection urged to prosecutor's remarks is disposed of adversely to appellant's contention, in State v. Hyland, 144 Mo. 1. c. 313-4, where we said:

"Lastly, it is insisted that error occurred in not rebuking the statements of the prosecuting attorney in his argument that 'crimes of this character are becoming too frequent' and to the further statement as follows: "The character of this man is not an issue in this case. It couldn't have been put in by the State. I say to you there is no evidence as to the character of this defendant, because Mr. Kimbrell didn't make that an issue in this case. If he had made that an issue in this case and opened the doors the testimony would have been before the jury. He tells you that this man is a lawabiding man; nothing against him, when he knew under the law we couldn't make that an issue. Isn't it a little bit singular that after living here twelve or fifteen years. he couldn't produce a witness to show that he was that kind of man.' Now as to these observations of the prosecuting attorney, there is absolutely nothing in the first. He merely voiced a truism. It is lamentably true that

State v. DePriest.

criminal acts like the one under investigation are too common. [State v. Emory, 79 Mo. 461; State v. Hopkirk, 84 Mo. 1. c. 288.] As to the remark in regard to the character of defendant as a law-abiding man, the prosecuting attorney correctly told the jury that no such issue had been tendered and the character of the defendant had not been shown, and the State could not have made it an issue in the first instance. On its face it shows that it was a legitimate reply to the unsupported assertion that defendant was a law-abiding man with nothing against his character. The prosecuting attorney very properly insisted there was no such evidence and if defendant desired his good character to be considered as a part of his defense he ought to have produced at least some one witness that he was that kind of a man. "There is no merit in the contention that there was error in rebutting defendant's unfounded statement that he was a law-abiding citizen. He had no right to inject· that issue into the argument and complain if it was promptly met and refuted."

V. It is insisted by defendant that the corpus delicti was not shown by the State in this case. There is no controversy over the fact that the prosecuting witness, on the morning of September 23, 1919, was held

Delicti.

up at the point of a gun, and robbed, while in Corpus the Waiters' Club, of $30 in lawful money of the United States. We have heretofore shown, under proposition one of this opinion, in considering the demurrer to the evidence, that there is substantial testimony in the case, tending to show that defendant was the man who held the gun while McIntyre and others were being robbed. The foregoing contention is without merit and overruled. [State v. Schyhart, 199 S. W. 1. c. 211, and cases cited.]

VI. We have examined the instructions given in the case, and find that they are fair to defendant, and properly covered all the law necessary to aid the jury in passing upon the case.

Ballew Lumb. & Hardw. Co. v. Mo. Pac. Ry. Co.

VII. Upon a careful consideration of the law and facts relating to this case, we find no error of which appellant can legally complain. He received a fair and impartial trial, and was convicted upon substantial evidence. The judgment below is accordingly affirmed. White and Mozley, CC., concur.

PER CURIAM:-The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court. All of the judges concur.

BALLEW LUMBER & HARDWARE COMPANY et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY et al.

Division Two, June 23, 1921.

1. PLEADING: Jurisdiction: Demurrer.

2.

3.

4.

Upon demurrer to the pe

tition charging that the court lacks jurisdiction, the defect which precludes the court from hearing and determining the case must appear on the face of the petition.

General and Special. A court may have jurisdiction of the subject-matter of a class of cases, yet have no jurisdiction to hear and determine the particular case under con sideration.

:

-: Shipper's Claims: Overcharges: Misjoinder: Equity. Conceding that the obligations of contracts made with shippers by a railroad company which has transferred its assets to another survive, and that by appropriate actions they may enforce their claims against any property belonging to the company which has passed into the hands of another than a bona-fide purchaser for value, still it does not follow that the court has jurisdiction to hear and determine in one suit in equity the claims of all such shippers, arising out of different contracts, and requiring different proof.

Equity: Joinder of Different Causes and Parties. The joinder of parties as plaintiffs is permitted when the cause of action is common to all, and the right under which they claim is the same as to each, and the complaint of all is against the same

5.

Ballew Lumb. & Hardw. Co. v. Mo. Pac. Ry. Co.

defendant for the doing of acts which affect all alike; but the joinder in one suit in equity of legal claims for overcharges arising out of several contracts made by the respective plaintiffs with the defendant, identical only in the fact that they are all shipment contracts, and differing as to places and times of execution, is not permitted.

: Multiplicity of Suits. Equity will not interfere to prevent a multiplicity of suits unless the questions involved are of equitable cognizance. Community of interest in the questions of law and fact presented, or in the form or kind of re lief demanded, is not enough.

Appeal from St. Louis City Circuit Court.-Hon. Karl Kimmel, Judge.

AFFIRMED.

T. L. Philips and E. T. & C. B. Allen for appellants.

(1) The sale of the property of the insolvent Missouri Pacific Railway Company under a consent decree, in pursuance of a plan and agreement of reorganization of said company, in which there was reserved for the stockholders of the old company a stock interest in the new company, was and is in law a fraud upon the rights of the appellants, and as to them is void. Mumma v. Potomac Co., 8 Pet. 281; Railroad Co. v. Howard, 7 Wall. 392; Scammon v. Kimball, 92 U. S. 367; Wabash v. Ham, 114 U. S. 594; Louisville Tr. Co. v. Railroad, 174 U. S. 674; Northern Pacific v. Boyd, 228 U. S. 482; Kansas City Southern v. Trust Co., 240 U. S. 166; Central Impr. Co. v. Cambria, 210 Fed. 696, 201 Fed. 822; Western Union v. Trust Co., 221 Fed. 549. (2) That shippers are entitled to recover in equity overcharges exacted under duress and in violation of a valid statute has been unanimously held. Barker v. Railroad Co., 265 Mo. 682; White v. Delano, 270 Mo. 16; Bellamy v. Railroad, 220 Fed. 878; Love v. North American Co., 229 Fed. 103; Railroad v. McKnight, 244 U. S. 368; Arkadelphia Milling Co. v. Railroad, 249 U. S. 134. (3)

Ballew Lumb. & Hardw. Co. v. Mo. Pac. Ry. Co.

Where it is alleged that a judgment and execution would be fruitless and involve useless and unnecessary expense, a creditor may maintain a bill to impress an equitable trust upon the assets of the insolvent company without first obtaining a judgment at law. 12 Cyc. 711; Goldman Comn. Co. v. Williams, 211 Fed. 537; Johnson v. Powers, 139 U. S. 156; Sage v. Railroad, 125 U. S. 361; Tally v. Curtain, 54 Fed. 4; Schofield v.. Ute Coal Co., 92 Fed. 269; Burnham Co., v. Smith, 82 Mo. App. 35. (b) Where the fund sought to be subjected to the payment of the owners' debts is a trust fund for the payment of debts, or the complainant has a lien on the fund or property, the defendant creditor need not first establish his claim by judgment at law. 12 Cyc. 12; Woolen Mfg. Co. v. Kampe, 38 Mo. App. 229; Goldman v. Williams Co., 211 Fed. 530; Coleman v. Hagey, 252 Mo. 127.

Edward J. White, James F. Green and H. H. Larimore for respondents.

(1) It appears on the face of the petition that the Circuit Court of the City of St. Louis was and is without jurisdiction of the subject of the action. Smith v. Mo. Pac. Railroad Co., 266 Fed. 653; State ex rel. v. Davis, 190 S. W. 966; State ex rel. v. Williams, 221 Mo. 258; Miller v. Assurance Co., 196 S. W. 449; Farmers' Loan Co. v. Lake Street Railroad, 177 U. S. 61; Stewart v. Wisconsin Central Railroad, 117 Fed. 782; Julian v. Central Trust Co., 193 U. S. 112; Lang v. Ry. Co., 160 Fed. 355. (2) It is apparent on the face of the petition that there is a defect of parties plaintiff and that several distinct and separate causes of action have been improperly united in one petition. State ex rel. v. C. & A. R. R. Co., 265 Mo. 671; Ry. Co. v. McKnight, 244 U. S. 368. (3) The petition does not state facts sufficient to constitute a cause of action. First. Because it is not alleged that plaintiffs are judgment creditors and have exhausted their remedies at law. Public Works v. Columbia Col