record at the February special term, or adjourned term, and the Cape Girardeau Southwestern Railway Company, witnesseth, that the said county of Wayne agrees to pay said railway company the sum of $11,875, said sum being the price of 9,500 acres of swamp land sold to said railway company at $1.25 an acre, and a deed or patent to which said lands has been made and executed by said county of Wayne this day, and delivered to James F. Hatten as an escrow, and to be by him delivered to said railway company when said railway company shall have fully performed and done the work hereinafter to be specified, and which said deed or patent shall be in full and complete payment for and on account of said work, without any other or further demand of payment for or in that behalf; and said railway company expressly covenants that it will not make any reclamation against said county for any defect or imperfection of title hereby conveyed, or any part thereof. And said Cape Girardeau Southwestern Railway Company contracts, agrees, and undertakes, in consideration of said sum of $11,875 so to be paid as aforesaid set out: (1) To erect, build, and maintain a levee from some point on the boundary line, on the east side of said Wayne county, and in township 27, to be selected by it, the said railway company, a levee or dam across that part of Wayne county known as 'Mingo Swamp,' to the high land on the west side of said swamp, to such point on the opposite side as said railway company may deem best suited in that behalf; said levee so erected to have a top or crown of not less than 12 feet, and a base to be in proportion; and, further, said railway company agrees to open continuous ditches along said levee; along both sides if necessary, to drain said land. It is, however, distinctly understood that the said railway company, if it shall deem it advisable, may build trestle or drive piling or build bridges at any point or points along said levee where it shall be deemed advisable by it to do so, and that the said county of Wayne will not object or except to the fact that the said levee is not a complete earth embankment; but, on the other hand, the said railway company expressly agrees to drain the surface water, when necessary, into said places where it may have erected said trestle work, piling, or bridging. And it is distinctly understood that it is discretionary with said railway where it may wish to erect and maintain said trestle, piling, or bridging. (2) Said railway company agrees that it will do said work within two years from the date of this contract, and also that within said time, in order to secure the permanency of such levee or work, it will build and operate upon said levee, so thrown up and built by it, a railway, and extend said railway in a continuous line through said township 27, in Wayne county, to some eligible point on the St. Francois river, in said township. (3) And said railway com

pany further agrees to cut down the timber on said line selected by it 100 feet wide across said swamp to the county line. (4) And said railway company covenants that if it shall extend its line in a westerly direction, that it will so extend the same through township 27 in Wayne county. (5) And it is further agreed mutually by said parties that if the said railway company shall not, within two years from date, build said levee, and extend its railway to the St. Francois river, in township 27, in order to secure its perinanency across the same, that the said deed or patent, now in the hands of James F. Hatten as an escrow, shall be surrendered back to the said county court of Wayne, to be by it canceled and for naught held. And, further, that the said railway company shall not be entitled to any compensation for any work it may have done or performed in and about the building of said levee or digging of said ditches as aforesaid, if it fails, neglects, or omits to do said work within the time aforesaid. (6) It is further understood that the building of said levee as aforesaid, and laying the iron over the same and through said township to any point in said township within one mile of the channel of said St. Francois river, shall be considered as having performed the contract on the part of said railway company, and that, as soon as said levee is built, and railway operated thereon, to secure its permanency to said St. Francois river, as in this article set out, that the said James F. Hatten shall at once, without further order, decree, or act, deliver the said deed or patent to said railway company. (7) It is agreed by said railway company that the said work of building said levee, as in this contract set out, shall be done and performed under the direction of Wm. A. Penny, commissioner of Wayne county, but that the county shall not be liable to pay the compensation, or any compensation, to said Penny in that behalf. In witness whereof this contract has been signed by Elijah J. Dalton, presiding judge of the county court of Wayne county, and countersigned by the clerk of said court, and has also been signed by the said Cape Girardeau Southwestern Railway Company, by Louis Houck, its president, this 14th day of March, A. D. 1882. [L. S.] Elijah J. Dalton, President County Court. Schuyler Andrews, County Clerk of Wayne Co., Mo. C. G. S. W. Ry. Co., by Louis Houck, President."

That in pursuance of said contract the said county of Wayne executed its deed in proper form, conveying all its unsold swamp and overflowed lands, particularly described therein, to the said railway company, and delivered the same to the said James F. Hatten, to be held by him in escrow, according to the terms of said contract. That, said railway company being unable to perform the obligation of its said contract within the time therein specified, the time for the completion thereof was extended by the county court of

said county from the 14th of March, 1884, to August 1, 1884. That before said 1st day of August, 1884, the said railway company fully performed all the conditions upon its part of said contract, and completed said work, which was thereupon approved and accepted by said county court. That, in order to be able to perform said work, the said railway company borrowed of one William F. Brown the sum of $75,000 under and in pursuance of the following written agreement entered into with him on the 4th day of December, 1882, to wit:

"This memorandum witnesseth that Wm. Brown has agreed to furnish the Cape Girardeau Southwestern Railway Company the sum of $75,000 in cash, to construct its road to the banks of the St. Francois river, from time to time, as said railway may need said sum, it being, however, understood that not more than $35,000 (dollars) shall be demanded prior to March 1, 1883, and that the balance shall not be demanded prior to December 1, 1883; and in consequence of said sum of money being paid to said railway said railway company agrees to deliver to said Wm. Brown its first mortgage bonds on the St. Francois river division of its road at 80 cents on the dollar,-that is to say, $93,750 (dollars) in bonds for $75,000 in cash,-and further, $106,800 in paid-up capital stock of said company, and further, to deed and to convey by good and sufficient deed of conveyance to said Wm. Brown the land known as the 'Wayne County Land,' being the land conveyed to said railway company by Wayne county, and the deed to which is now in the hands of J. F. Hatten as an escrow, to be delivered to said railway as soon as the said railway shall be constructed to within one mile of the banks of the St. Francois river, in township 27, in said county, as soon as the said railway shall be constructed, and said deed is delivered. It is also understood that the interest coupons accruing on the bonds prior to March, 1884, and which may become due, may be paid by said railway company in bonds at 80 cents on the dollar, and that the said Brown will accept the same in payment of said interest. Also, that if any interest shall accrue on sums paid prior to the delivery of bonds, that the same shall be allowed and calculated and paid in the same way. [Signed] C. G. S. Railway Co., per Louis Houck, Pres. William Brown. Witnessed by B. F. Davis. Dated December 4, 1882."

That the plaintiff is a corporation duly incorporated under the laws of Missouri, whose incorporators and stockholders consist solely of the heirs of said William Brown, now deceased. That all the property left by the said William Brown at his death, real, mixed, and personal, by descent, contract, and transfer became the property of the plaintiff in this action, and that said contract made by the said Brown with said railway company was duly assigned to plaintiff by

all the parties in interest, by deed duly executed and recorded. That at or about the time of the completion by said railway company of the work, under said contract with Wayne county, a suit in the nature of a bill in equity was instituted in the Wayne county circuit court by the state of Missouri at the relation of the state board of education, to the use of the public schools of Wayne county, against the county court of Wayne coun ty, the Cape Girardeau & Southwestern Railway Company, and the said James F. Hatten, praying for a writ of injunction restraining the said Hatten from delivering to the said railway company the aforesaid deed so held by him in escrow, and to require him to deliver said deed into court, and further praying that said contract be set aside and held for naught, and to restrain the judges of said county court from approving and confirming the delivery of said deed to said railway company, and for all such judgments, orders, and decrees as the facts may warrant, to preserve to the said Wayne county and the public schools therein the said swamp and overflowed lands. The petition then sets out the pleadings in that case, and avers that upon the trial of said cause the circuit court of said county found the issues for the defendants therein, and rendered judgment for them, and dismissed the plaintiff's bill. That the plaintiff then appealed from that judgment to the supreme court, which, at the April term, 1889, thereof, affirmed (11 S. W. 758) the said judgment of said circuit court, and thereby held that Wayne county had the right to dispose of its remaining unsold swamp lands to said railway company in the manner and for the purposes aforesaid. That plaintiff herein, after the promulgation of the opinion of the supreme court in that case, and relying upon and placing full faith and credit in the principles of law therein enunciated, caused said railway company, by its deed, duly executed and acknowledged, to convey to plaintiff herein the said swamp lands. That after the institution of the suit aforesaid, to wit, on the 20th of September, 1884, the said railway company instituted a suit in the circuit court of Wayne county against the said Hatten, the judges of the county court of said county, and the clerk of said court, to which suit said county afterwards became a party defendant, to restrain said Hatten from surrendering the said deed made by the said county of Wayne to said railway company, and held in escrow, as aforesaid, by the said Hatten, to said county court, and to enjoin said court from in any way changing or altering the records theretofore made touching the matter in controversy, until a full hearing of the same could be had. The petition thien sets out the pleadings in that case, and avers that the venue of said cause was changed to the circuit court of Mississippi county, in which court its tried at the October term, 1887, thereof, .. issues found for the defendants therein, and the plaintiff's bill there

in dismissed, from which judgment the plaintiff therein appealed to the supreme court, by which court the judgment was, at the October term, 1890, thereof, affirmed (14 S. W. 763), said court thereby holding that Wayne county had no authority or legal right to make the aforesaid contract with the said railway company disposing of its remaining unsold swamp lands as aforesaid. The peti

tion then charges that the decisions of the supreme court in the two cases aforesaid are in conflict: that the same matters and things were in issue in each; that, as plaintiff has acted upon the faith of the first decision, it is within the protection of the constitutional inhibition "that no state shall pass any law impairing the obligation of contracts;" and that "no person shall be deprived of life, liberty. or property without due process of law" (Const. art. 2, §§ 15, 30); and prays that the said county of Wayne be required to make its deed conveying said lands to the plaintiff, and for general relief.

1. The case of State v. County Court of Wayne Co., in which the plaintiff sought to annul the contract between the county and the railway company, and to enjoin the delivery of the deed for the swamp lands, executed in pursuance thereof, and held in escrow by the said Hatten, is reported in 98 Mo., at page 362 et seq., 11 S. W. 758. In that case it appears from the pleadings set out in the petition the plaintiff based its right to the relief sought upon the ground that the swamp lands in question were held by the county of Wayne in trust for the public schools of said county, and that said contract was fraudulently and corruptly entered into by and between the judges of the county court and the officers of said company for the purpose of perverting the same to purposes and uses other than those of said trust. To that case the county was not a party. The rights and interests of the county in and its power over the land as trustee were considered only to the extent necessary to determine the rights and interests of the public schools therein, as a beneficiary of such trust, and we therein held that the proceeds of those lands are first applicable to their reclamation, and that only the surplus remaining after the payment of the expenses of draining, reclaiming, surveying, and selling the same would become a part of the school fund, and "that it is within the power of the county court, as the administrative representative of the county. to contract for the sale of swamp land in consideration of its reclamation upon terms conforming to the other provisions of the law." And, applying these principles to the case then in hand, we said: "There is no evidence in this record suggesting that the levee and plan of drainage projected by the company are other than honest and efficient means for the reclamation of these lands. There is nothing before us tending to show that the arrangement was a fraudulent de

vice to donate the land to the company under the forms of law. That assertion appears in appellant's argument, but we discover no testimony supporting it. In the absence of evidence it will be assumed that public officers have proceeded in obedience to, not in disregard of, their duties and obligations as such. The case of appellant in the trial court proceeded upon the supposed want of power in the county court to sell the lands in question as was done, and apply the proceeds contemporaneously to draining and reclaiming them. That is the only question presented for review. We resolve it as did the circuit court, whose judgment we all agree to affirm." The chief contention in that case was that at the time the contract with the railway company was made the county held all its unsold swamp lands in trust for the common schools, and that upon a sale thereof all the proceeds became a part of the common-school fund. To the discussion of that question the opinion is principally devoted, and, having demonstrated that the lands were not so held, but primarily for the purposes of reclamation, and that all the interest the common schools could have therein would be to such of the proceeds thereof as might be left after the payment of the expenses of such reclamation, an interest so remote and contingent as to be inappreciable,-and having decided that the county court might contract for the sale of the lands in consideration of their reclamation, in the absence of any evidence of fraud or bad faith by the parties who made the contract in question, and of one of the principal parties thereto, the county of Wayne, the trustee, which was not a party to the suit, this court, without examining into or discussing the intrinsic nature and character of that contract, sustained the judgment of the circuit court refusing to annul it. This was probably as far as this court could have gone in that case; at least it is as far as it did go. The most that can be said is that, for the purposes of that case, it was assumed (not decided) that the contract in question was within the power of the county court to dispose of its swamp lands for the purpose of their reclamation. Consequently, when the case of Railway Co. v. Hatton, reported in 102 Mo. 45 et seq., 14 S. W. 763, in which the company sought, in effect, to sustain that contract, and in which all the parties thereto, including the county of Wayne, the trustee, were in court, and in which it was specially pleaded as a defense thereto "that the said county court of Wayne county and the said railway company had not capacity in law to make or enter into said contract, and that the same was outside and beyond the power of said county court and said company or its officers," and it became necessary in determining such plea to inquire into the nature and character of the contract, we did not feel precluded from such inquiry by the decision

in the former case; nor were we, as we then and now hold. In this latter case, after maturely considering the issue, we held that the contract in question was merely a donation of lands to the company in consideration of building and operating its road, and not a contract for the sale of lands for the purpose of their reclamation. Consequently the county court had no power in law to make the contract, and ruled that plaintiff was not entitled to the relief sought. That case is decisive of the one in hand. Brown took his contract from the railway company, with full notice of the contract between the county and the company; in fact that contract was made a part of his own contract. It appears from the allegations of the petition that while the two suits aforesaid were pending and undetermined Brown died, and the heirs and distributees of his estate formed the plaintiff corporation herein for the purpose of managing the estate descended to them, to which they transferred all their interest therein, including this contract.

The plaintiff simply stands in Brown's shoes, with the same rights and interests that Brown would have had if living and he had brought this suit. The only thing that seems to have been done after the promulgation of the opinion in the school board case, was the execution of a deed by the railway company to the plaintiff for the lands in pursuance of the contract. This in no way changed plaintiff's relation to the contract, the validity of which was subject to the final determination of this court. Even if the plaintiff's contention could be sustained that the decision in the school case was decisive of the validity of the contract, it does not appear that the plaintiff has invested a dollar upon the faith of that decision, or that it is in a position to invoke the protec tion of the constitutional inhibition cited in the petition as against the subsequent decision that was unquestionably decisive of that question. The judgment of the circuit court is affirmed. All concur.

YOUNG v. THRASHER. (Supreme Court of Missouri, Division No. 1. June 19, 1894.)

APPEAL-REVERSAL-DIRECTION of Judgment.

When a cause is reversed and remanded, with directions to modify the judgment in a certain specified manner, the court below has no discretion to reopen the judgment in order to Adjudicate rights of the parties accrued pending the appeal.

Appeal from circuit court, Greene county. Action by Belle Young against Charles W. Thrasher for assignment of dower. From an order refusing to reopen judgment, defendant appeals. Affirmed.

For report of former appeal, see 21 S. W. 1104.

White & McCammon and C. W. Thrasher, for appellant. Haseltine Bros., for respondent.

MACFARLANE, J. This is an action by plaintiff, as the widow of Henry C. Young, deceased, for the assignment of dower in the undivided half of a lot in the city of Springfield, Mo. This is a second appeal by defendant. The judgment upon which the first appeal was taken was affirmed in all respects except as to the time at which the annual payment of $200, as yearly value of dower, should be made. As to the time of such payment, this court ordered a modification of the judgment, and, to the end that it might be made by the circuit court, the judgment was reversed, and the cause remanded, with directions to the said circuit court to make the modification. See opinion, 115 Mo. 235, 21 S. W. 1104, par. 8. It appears from the record on this appeal that the mandate of this court was filed in the circuit court of Greene county at the May term thereof, and on the 1st day of May, 1893, and without other notice to defendant than the filing implied on said day, on motion of plaintiff, the cause was placed upon the docket, and a judgment was thereupon entered in accordance with said mandate. Defendant afterwards filed a motion to set aside the judgment, upon the ground that it had been entered without notice to the defendant, and without giving him an opportunity to be heard. Defendant alsc alleged in his motion that he had "a good and meritorious defense to said suit," which had accrued to him since the first trial, and which he desired to plead in bar to said suit. In support of this motion, defendant filed an affidavit setting out his alleged defense as follows: "On the 30th day of September, 1892, and after the first trial of the above cause in this court, and while the same was pending in the supreme court by virtue of a deed duly executed, acknowledged, and to said defendant delivered by the sheriff of the county of Greene, in the state of Missouri, said defendant acquired, and now holds, all the right, title, and interest which said plaintiff herein had in or to the land in plaintiff's petition mentioned, as dower or otherwise, and that said deed was made by said sheriff under an execution sale on three executions against said plaintiff,-one in favor of Heer Dry-Goods Company, one in favor of one Cummings, and one in favor of one Dabbs; that defendant desires to set up the foregoing facts in defense of this suit; that defendant first learned of the said judgment in this suit on Saturday, May 13, 1893." This motion was afterwards heard, and, on the hearing, evidence in support of the facts alleged in the affidavit was introduced. This motion was overruled, and defendant again appealed.

The former judgment of this court was in affirmance of that rendered by the circuit

court, and from which the appeal was taken, except as to the date at which plaintiff should be paid the adjudged yearly value of her dower. This error the circuit court was directed, by the judgment of this court, to correct, by making a modification of the original judgment so as to make the allowance payable at the end of the year. The rights of the parties, as they existed when the original judgment was rendered, were fully settled, and nothing remained for the circuit court to do but to enter the judgment so directed. This it did, and this only it had the power to do. Chouteau v. Allen, 74 Mo. 56; Stump v. Hornback, 109 Mo. 277, 18 S. W. 37. A judgment which merely reverses that of the court of original jurisdiction, and remands the cause for further proceedings, is not a final judgment; but one of reversal is final "when it also enters, or directs the entry, of a judgment which disposes of the case." Smith v. Adams, 130 U.-S. 167, 9 Sup. Ct. 566. This court has the power, when sufficient data are before it, to either enter the proper judgment, or remand the case to the court of original jurisdiction, with directions to that court to make the proper entry. In either case the judgment is that of this court, and is final and conclusive of all matters involved in the litigation. The inferior court only carries into execution the judgment which has been rendered by this court. "Nothing is left to the judicial discretion of the court below." Mower v. Fletcher, 114 U. S. 127, 5 Sup. Ct. 799; Black, Judgm. § 34.

Rights of the parties which may have accrued subsequent to the rendition of the original judgment, and which were not in issue in the proceedings in which it was rendered, would not be adjudicated therein; but the circuit court has no power to reverse, open, or interfere with the judgment of this court, in order to settle such rights. They must be determined by a subsequent suit, upon a different cause of action. Defendant was not harmed by a failure to give him notice that the judgment of this court would be entered. Judgment affirmed. All

concur.

RUTLEDGE v. MISSOURI PAC. RY. CO. (Supreme Court of Missouri. June 18, 1894.)

FELLOW SERVANTS-INJURY TO EMPLOYE. 1. A switchman uncoupling cars in a railway yard is a fellow servant of a locomotive engineer who injured him by an unexpected movement of the train in response to a signal from employés thereon. 24 S. W. 1053, affirmed.

2. Where there was a uniform custom that a person uncoupling cars should alone give the signal for the necessary movement of the train, the fact that there was no rule to such effect does not show negligence on the part of the company. 24 S. W. 1053. affirmed.

McFarlane, J., dissenting.

In banc.

On rehearing. Opinion of division No. 1 (24 S. W. 1053) affirmed.

PER CURIAM. The court in banc approves the opinion delivered on behalf of the majority of the judges in division No. 1 (24) S. W. 1053), and adopts the same as the decision of the court, all the judges concurring, except MACFARLANE, J., dissenting.

On Motion to Modify Judgment.

On motion to modify the judgment, it has been suggested that plaintiff may have a cause of action upon further proof that the signal on which the engineer acted originated with the yard master. Plaintiff hence prays that the judgment be modified so as to remand the cause, and thus give him an opportunity to amend, and present that phase of the case to the trial court, the statute of limitations having intervened as against any new action he might bring. On consideration of this motion, we are of opinion that it should be granted. Accordingly, the final judgment of this court will be that the judgment of the circuit court be reversed, and the cause remanded.

McGURRY v. WALL et al. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

MODIFICATION OF DECREE-WILLS-NATURe of

ESTATE.

1. Where a case is tried by the court, and a decree made, and motions are made for a new trial, the court may, in consequence of such motions, modify its former decree.

2. Testator devised property to his wife for life, or while she remained unmarried, with remainder to his son on the death or remarriage of the mother, and provided that if the son "die before maturity, and should my said wife remarry before the death of my said son," the property should go to testator's brother and mother "upon the happening of the two last events." The son died before maturity, and before the remarriage of his mother. Held, that the mother thereby became the owner in fee of the property.

Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Eliza McGurry against Margaret Wall and others on a special tax bill. Judgment for plaintiff, and defendants ap peal. Affirmed.

Action on special tax bill, lot 1 in block 5 in Hall's addition to the city of St. Joseph being the subject of the tax. At the instance of the appealing defendants, Jennie Wall was made a codefendant. All of the parties defendant claim title to the lot under the will of Robert Wall, which, so far