lant to any of the property in controversy. The court below construed the instrument set out as testamentary in character, and the appellant, in view of this construction, made a motion in the court below for a new trial, based on the ground that he had propounded the will for probation in the county court of Travis county, and that court had refused to probate it, and the appellant from that judgment had appealed the case to the district court, and that, in view of this fact, the trial court should have granted a new trial, so that the instrument could have, together with the record of its probation, been offered as a title in favor of appellant. It appears from the order of the county court refusing to probate the instrument as a will that it does not appear that it was "executed with the formalities and solemnities, and under the circumstances, required by law to make it a valid will." The motion for new trial nowhere states that the instrument was executed as a will under such circumstances as are required by the statute, nor does it state any facts that the appellant would prove in order to make it a valid will under the statute regulating the manner of proving up the execution of wills. The declaration of the trial court that the instrument was testamentary in character was not intended to mean that it was a valid will within the meaning of the statute upon this subject, and that it was entitled to probation; but the finding of the court was simply that if the instrument was valid for any purpose it could only be considered as a will, of course intending that it was only valid for such purpose when it was properly proven up and probated in a court that had jurisdiction to so determine such matters. The appellant's motion for new trial on this question was addressed to the sound discretion of the trial court, and, his motion failing to state any facts showing that it was a valid will, and was executed as such, in pursuance of the requirements of the statute, by Patterson, we cannot hold that the court abused its discretion in overruling the motion.

The record shows an agreement by the parties that the appellees are only entitled to 385-720ths interest in the estate of W. T. Patterson, deceased, and that there are other heirs entitled to a distribution in the estate that are not parties to this suit. The trial court permitted a recovery by appellees of all the land sued for, and of all the money on hand by appellant belonging to the estate of Patterson, and for all of the rents received by him arising from the lands in controversy, upon the theory that a part of the tenants in common are entitled to the entire estate against a trespasser or one without title. This is the correct doctrine as to the possession of the real estate of the tenants; but as to the damages to the estate, or rents arising from it, or as to moneys due the tenants in common, it is held that the tenants suing can only recover the share they are en

titled to. May v. Slade, 24 Tex. 208; Rowland v. Murphy, 66 Tex. 538, 1 S. W. 658; Weinsteine v. Harrison, 66 Tex. 547, 1 S. W. 626; Railway Co. v. Ragsdale, 67 Tex. 28, 2 S. W. 515. The court below found that the appellant had of moneys belonging to the estate of Patterson $860, and had collected $3.400 in rents of the property of the estate, and rendered judgment against him for the sum of $4.260. The undisputed evidence shows that the appellees are only entitled to 385-720ths of the estate of Patterson, and under the rule of law just stated they are only entitled to recover to this extent of the above sum found due and owing the heirs of Patterson by appellant. Therefore, the judgment in this respect will be reserved, and rendered in appellees' favor for 385-720ths of $4.260, and will in other respects be affirmed. The costs of this appeal will be taxed against the appellees.

1. An appeal bond which varies from the language of Rev. St. 1889, § 2249, in naming "the St. Louis court of appeals" as the court to which appellant will prosecute his appeal, instead of the appellate court." and binding him to comply with its decision instead of that of "any appellate court," is not suflicient.

2. Where an appeal bond, as approved by the circuit court, is, upon its face, insufficient, the supreme court, under Rev. St. 1889, ģ 2250, authorizing it to act upon bonds given to stay execution pending appeals granted by it, may set aside the order of approval, and require a sufficient bond to be given.

Black, C. J., dissenting.

Action by the American Brewing Company against Talbot and Leschen to recover the value of certain malt. Plaintiff had judg ment, from which defendants appealed to the St. Louis court of appeals. Because of the amount involved, that court certified the cause to the supreme court, and it appears on a motion to require appellants to furnish a new and sufficient bond on appeal. Granted. W. C. & James C. Jones, for appellants. Lubke & Muench, for respondent.

BARCLAY, J. This action was brought in the circuit court, city of St. Louis, to recover of defendants the value of certain malt, alleged to have been delivered to them. The petition was answered, and in due course the case came to trial on the issues made by the pleadings. A verdict for plaintiff for $4,448.30 resulted; and thereupon there was judgment for $4,316.65, a small remittitur having been meanwhile entered. After the usual motions, defendants took an appeal to the St. Louis court of appeals. At that time they

filed an appeal bond in the circuit court. The bond was signed by one of the defendants and by two sureties. It bound them to plaintiff in the sum of $10,000. The material parts of the collateral condition, expressed in the bond, are as follows: "Now, if said appellant shall prosecute this appeal, with due diligence, to a decision in the St. Louis court of appeals, and shall perform such judgment as shall be given by the said St. Louis court of appeals, or such as the said St. Louis court of appeals may direct the circuit court, city of St. Louis, to give, and if the judgment of the said circuit court, or any part thereof, be affirmed, and said appellant shall comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against said St. Louis court of appeals, then this obligation to be void; otherwise to remain in full force and effect." The bond was approv ed by the court, allowing the appeal. On reaching the court of appeals, the cause was transferred to this court, in conformity with the constitution, as the case plainly involves more than $2,500. Const. 1875, art. 6, § 12, and Amend. 1883, § 6. The plaintiff has moved to require appellants to furnish a new and perfect appeal bond, as the one on file is not a sufficient statutory bond to maintain a supersedeas.

by the

Under the rulings of the majority of the supreme court in Nofsinger v. Hartnett (1884) 84 Mo. 549, and Schuster v. Weiss (1893) 114 Mo. 158, 21 S. W. 438, as to the effect to be given to certain appeal bonds, it is very clear that the one here in question does not fully meet the requirements of the law. Rev. St. 1889, § 2249. Among other variations from the statute, it first names the St. Louis court of appeals, instead of "the appellate court," and, at the close, again mentions the former court, instead of "any appellate court." There are several grounds on which a case may be sent to the supreme court from either court of appeals, even though the proceeding may be one in which the supreme court would have no jurisdiction on a direct appeal. Const. Amend. 1883, §§ 3, 6; Rev. St. 1889, 3300. In other cases it is not always clear, from the nature of the proceedings, whether the supreme court or court of appeals is the proper one to entertain the appeal; and, until that question is determined, the trial court cannot know with certainty which appellate court should be named in a bond given for a supersedeas. Hence the language of the present statutes (Rev. St. §§ 2249, 2250, and 2287) is adapted, when read in conjunction with the sections concerning transfers between the appellate and supreme courts (Id. §§ 3299, 3300), to afford security to litigants obtaining judgments in the circuit, no matter to which appellate court the cause may finally go. Judges, in approving appeal bonds, should hence insist on as close a conformity of such bonds to the exact statutory language (Id. § 2249) as the nature of

In

each case will permit. In the case in hand the court approved the bond. The effect of that approval was to stay execution until the further order of some competent court. State v. Dillon (1889) 98 Mo. 90, 11 S. W. 255, the supreme court, by the present learned chief justice, declared: "The object in requiring the court to determine the amount of the bond is that, when the appeal is allowed, the question of supersedeas shall be fixed and settled once for all." We think that ruling is applicable, on principle, as well to the other terms of the bond as to its amount, or to the sufficiency of the sureties. This we consider the reasonable and natural meaning to be ascribed to sections 2255, 2256, Rev. St. 1889, considered in connection with the other sections of statute law already cited. But where the bond, as approved by the circuit court, is, upon its face, such a departure from the statute as not to afford a full security for the judgment which the law contemplates, we think it competent for an appellate court, in which the cause is pending, to vacate the supersedeas, unless a sufficient bond be given. By the terms of section 2250, Id., the supreme court and each of its judges are given power to grant appeals and to act upon bonds given to stay execution pending appeals. Like power is given to the court and its judges upon granting stays of execution upon writs of error. Section 2287, Id. The cause is now pending in this court, and if it be made to appear, as it does in this instance, that the order on the circuit approving a bond for stay of execution was erroneous, because of the insufficiency of the terms of the bond, we hold that it is competent for this court to set aside the approval of the bond, improvidently entered, and thus remove the effect of the erroneous order, unless a proper bond be furnished. It is hence ordered that the motion for a new bond (to comply with the statute) be sustained, and that, unless such bond be filed within 10 calendar days, the order of approval of the former bond be vacated.

TION OF CIRCUIT COURT-REMOVAL OF
PUBLIC OFFICIAL.

1. Certiorari to review an interlocutory order of the circuit court, issued in a cause over which it had jurisdiction, is available even before any final determination in that court, where it is alleged that it is exceeding its jurisdiction.

2. Certiorari from the circuit court to the mayor of St. Louis to review his action in removing a public official on charges proved will not operate to stay such order of removal.

3. Where the remedy by appeal from an order of the inferior court in excess of its

jurisdiction would be inadequate, as preventing the summary removal of a public official for maladministration, the discretion of the higher court, in application for certiorari to review that order, is legal, and not arbitrary.

Per Sherwood, J., dissenting.

For majority opinion, see 27 S. W. 379.

SHERWOOD, J. (dissenting). Unable to concur in the majority opinion, I will give a résumé of the pertinent facts relating to the rise, progress, and ultimate demise of this case, and then set forth some reasons which occur to me why the action of the majority in quashing the writ of certiorari should be held unwarranted on the facts and on the law. At the outset it may be remarked that no return has been made to the writ herein. This case had its origin in charges preferred by Robert E. McMath, president of the board of public improvements, against George B. Reid, commissioner of public buildings, which charges showed upon their face that Reid had been guilty of certain flagrant derelictions from official duty. Of these charges, Walbridge, the mayor, had duly notified Reid on August 14, 1893, and was about to proceed to try him in a summary way, as pointed out by and provided for in the charter of the city, and would have done so, but for the interposition of original proceedings on behalf of Reid, instituted in division No. 2 of this court, in which a rule was granted on the mayor to show cause why a writ of prohibition should not issue to prevent him from trying Reid on the charges preferred. Upon the hearing we held that the mayor was in the right, and within the bounds of his duty, in proceeding to try Reid. See State v. Walbridge (Mo.) 24 S. W. 457. And in thus holding we did but follow the earlier case of Manker v. Faulhaber, 94 Mo. 430, 6 S. W. 372, which upheld the power of the mayor summarily to try and to remove an unworthy official. Thereupon Reid moved for a rehearing, and to transfer the cause to the court in banc, whereby the final determination of the cause was delayed until the next term thereafter, when the motions were denied. After a delay of some five months from the time Reid was notified, produced by prohibitory proceedings instituted by Reid, the mayor was allowed to proceed to bring the delinquent official to trial, which resulted in the conviction of Reid on ample evidence of most flagrant official delinquencies, as specified in the charge preferred by McMath. Indeed, the answer of Reid to those charges substantially admits their truth, and then undertakes to justify his action on the ground that, though he violated plainly worded ordinances of the city, yet that he had the right to do so in the exercise of "his discretion as an architect." Not only does the answer of Reid make these virtual admissions of his guilt, but the evidence shows in the clearest possible light that in defiance of the plainest prohibitions of the city charter and ordinances he altered contracts made with the

city and substituted clauses and specifications of his own therefor, and, after doing this, he certified that the work contracted for, and which had not been done, had been done, and drew a voucher for the whole contract price. The trial of Reid on the charges preferred ended on January 31, 1894, and resulted, of course, in a richly deserved judgment of removal, and the mayor thereupon issued his notice of the order of removal to Reid, which was served on the same day, and then, complying with section 7 of article 4 of the city charter, the mayor on the same day notified the city council that he had removed Reid, stating the causes therefor. Under the section mentioned it was the duty of the council, upon being thus notified, to fill the vacancy created by the order of removal. This was all that section 7 aforesaid required.

On the 2d day of February, 1894, the circuit court issued its writ of certiorari to the mayor, and entered an interlocutory order or judgment prohibiting the mayor from taking any further steps in the matter of the removal of Reid until the judgment of the court should be had in the premises, and required the relator, Reid, in that proceeding, "to give bond" "conditioned according to the provisions of section 2249, Rev. St. 1889, in relation to bonds in case of appeals." Bond was accordingly given, approved, and filed. The section in question relates solely to bonds being given when appeals are taken from a final judgment of a circuit court to some appellate court; it has no other application or meaning. Two writs of certiorari were known at common law. The former took up the record or proceedings at any stage of the case to the court from whence the writ issued, the latter after final judgment, and was therefore in the nature of a writ of review. We have in this state no statutory regulation of such writs save in the case of forcible entry and detainer, and of consequence we are left to the rules of the common law as to the manner of the issuance of the writ and all of its incidents and consequences. "It was a distinguishing feature of this remedy at common law [certiorari] that it was the appropriate writ for the removal of a cause before judgment, while a writ of error removed it afterwards." 2 Spel. Extr. Relief, §§ 1894, 1914, 1917. "A certiorari lies, in general, for the removal of all causes from all inferior courts, whether the defendant has been proceeded against therein by capias or other process; and it will lie to remove an ejectment from an inferior court. This writ may be sued out before, or in some cases after, judgment, and lies in civil actions before judgment, and in the king's bench or common pleas, in all cases where these courts have jurisdiction, and can administer the same justice to the parties as the court below; and though the cause cannot be determined in the court above, yet this writ may be granted if the inferior

courts have no jurisdiction over it, or do not proceed therein according to the rules of the common law." 1 Tidd, Pr. (4th Am. Ed.) 398; Goodright v. Dring, 2 Dowl. & R. 407; Cross v. Smith, 2 Ld. Raym. 836; Com. Dig. (4th Ed.) tit. "Certiorari.” In Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. loc. cit. 308, it is said: "We have no statute in this state regulating the practice in proceedings by certiorari, and are to look to the common law for a guide in such cases." To the same effect, see Saline Co. Subscription Case, 45 Mo. loc. cit. 53. Adopt-❘ ing this undoubtedly correct view that the common-law rule must prevail where none is provided by statute, the right of relator to sue out the present writ before any final action of the circuit court cannot be doubted. This was the course pursued in Rector v. Price, 1 Mo. 198, one of our earliest reported cases, where certiorari was employed as a remedial process, when the language of our constitution was the same on the subject of extraordinary writs as it is now, to wit: "The supreme court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other remedial writs, and to hear and determine the same." Article 6, § 3. And in that case reference was made to this organic provision, and reliance had on it. Numerous instances are to be found in our Reports where this "superintending control" has been exercised by this court in conformity to its specifically prescribed constitutional duty. Some of these instances, in addition to the one just cited, will now be given, where this court has exercised its original jurisdiction.

Thus, in certiorari: Railroad Co. v. Morton, 27 Mo. 317,-issued to review the finding of commissioners in a railroad condemnation case. Owens v. Andrew County Court, 49 Mo. 375,-issued to review the finding of the county court in the matter of the settlement of the collector for Andrew county. Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. 294,-issued to review the action of the state board of equalization in assessing the property of the railroad company. In re Saline Co. Subscription, 45 Mo. 52,-issued to determine the validity of a subscription by the Saline county court for stock in the Louisiana & Missouri River Railroad Company. Phelps Co. v. Bishop, 46 Mo. 68, -issued to determine the validity of a judg ment rendered by the county court in favor of Bishop. Railway Co. v. Young, 96 Mo. 39, 8 S. W. 776,-certiorari to remove proceedings from a county court in regard to opening a road. See, also, the recent case of State v. Slover, 113 Mo. 202, 20 S. W. 788, where this court, by its writ of certiorari, reviewed the action of the circuit court in removing a stenographer.

Thus in prohibition: Where the circuit court attempted to exercise judicial authority over which it had no jurisdiction, this court

restrained it by a writ of prohibition. Vitt v. Owens, 42 Mo. 512. The writ of prohibition is issued to inferior courts to prevent the wrongful assumption or excess of jurisdiction. This was done by this court in State v. Clark County Court, 41 Mo. 44. State v. Smith, 104 Mo. 419, 16 S. W. 415; State v. Rombauer, 104 Mo. 619, 15 S. W. 850, and 16 S. W. 502; Id., 105 Mo. 103, 16 S. W. 695; State v. Withrow, 108 Mo. 1, 18 S. W. 41; State v. Field, 112 Mo. 554, 20 S. W. 672. Prohibition will lie to prevent a judge from granting a new trial after the expiration of the term, since such act is not merely erroneous, but is void for want of jurisdiction. State v. Walls, 113 Mo. 42, 20 S. W. 883. State v. Dillon, 96 Mo. 56, 8 S. W. 781,-to determine the power of a circuit court to pun ish for contempt of an injunction, after the injunction case had been appealed from that court.

Thus in mandamus: State v. Rodman, 43 Mo. 256,-to compel the secretary of state to cast up the result of an election for judge of the circuit court. State v. Saline County Court, 45 Mo. 242,-to compel the court to issue bonds and levy a tax for their payment. State v. Saline County Court, 48 Mo. 390,-to compel the county court to levy a tax to pay bonds. State v. Lafayette County Court, 41 Mo. 221,-to compel the county court to approve the bond of the sheriff as collector. Dunklin Co. v. District County Court, 23 Mo. 449,-to compel the county court to vacate an order selling swamp lands to a railroad company in payment of a stock subscription. Franciscus v. Martin, 9 Mo. 198,-motion and rule to set aside a judgment. The lower court discharged the rule for want of jurisdiction. Held, "We are rather inclined to the opinion that this is a proper case for a mandamus." Vernon v. Boggs, 1 Mo. 117, 274,to compel the court to enter a judgment upon a confession of judgment. Castello v. Circuit Court, 28 Mo. 259,-to compel the court to reinstate and determine a contested election case, in which the court had quashed the proceedings on the ground that the statutory notice of contest had not been given. Ex parte Cox, 10 Mo. 743,-mandamus to compel the circuit court to set aside an order granting a change of venue, and to proceed and determine the cause. Beck v. Jackson, 43 Mo. 117,-to compel a circuit judge to approve the bond of a person appointed circuit clerk by the governor. State v. Treasurer of Calloway Co., 43 Mo. 228,-to compel the treasurer to pay an audited account in favor of the board of registration of the county. State v. Adams, 76 Mo. 605,-to compel a circuit judge to enter up a judgment on a second verdict. The circuit judge, of his own mo tion, had set aside the second verdict. State v. Cape Girardeau Court of Common Pleas, 73 Mo. 560,-to compel a trial court to act upon a motion for judgment, when the court had ordered the case to be "dropped from the docket." State v. Lewis, 71 Mo. 170,-to com

pel the court of appeals to approve an appeal bond, and to order a supersedeas, when that court had held that it had no jurisdiction so to do. State v. Berg, 76 Mo. 136,to compel a board of canvassers of election returns to count certain votes which the board had rejected. The mandamus issued after the board had finally adjourned. State v. Philips, 96 Mo. 570, 10 S. W. 182.-to compel the court of appeals to certify and transfer a case to the supreme court. State v. Tracy, 94 Mo. 217, 6 S. W. 709,-to compel the city register to receive a statement, and extend in the "Merchant's Tax Book" a tax levied for school purposes. State v. McGrath, 92 Mo. 355, 5 S. W. 29,-to compel the secretary of state to issue a certificate of incorporation. State v. Philips, 97 Mo. 340, 10 S. W. 855,-to compel the court of appeals to reinstate a cause which it had improperly dismissed. State v. Weeks, 93 Mo. 499, 6 S. W. 266,-to compel a county court to grant a dramshop keeper's license. State v. Williams, 99 Mo. 291, 12 S. W. 905,-to compel the recorder of voters of St. Louis to issue a certificate of election as marshal of said city. Stace v. Baggott, 96 Mo. 63, 8 S. W. 737.-to compel the coal-oil inspector of St. Louis to inspect oil in bulk in large tanks.

State v. State Board of Health, 103 Mo. 22, 15 S. W. 322,-to compel the state board of health to issue a certificate to practice medicine. State v. Smith, 104 Mo. 661, 16 S. W. 503,-to compel a county clerk to issue a certificate of election. State v. Smith, 105 Mo. 6, 16 S. W. 1052,-to compel the lower court to reinstate a cause, and hear and determine it. State v. Field, 107 Mo 445, 17 S. W. 896,-to compel the lower court to proceed with a cause. State v. Neville, 110 Mo. 345, 19 S. W. 491,-to compel the lower court to appoint commissioners in a condemnation case. State v. Stratton, 110 Mo. 426, 19 S. W. 803,-to compel the circuit court to hear and determine a motion for a new trial. Tobacco Co. v. Rombauer, 113 Mo. 435, 20 S. W. 1076,-to compel the court of appeals to certify the case to the supreme court because "of the amount in dispute." State v. Missouri Pac. R. Co., 114 Mo. 283, 21 S. W. 813,-to compel the railroad company to rebuild a line of railway, and to run trains thereon. State v. Bronson, 115 Mo. 271, 21 S. W. 1125,-to compel respondent to use books adopted by the Misssouri school-book commission in the schools of the city of Sedalia school district.

The recent case of State v. Slover, 113 Mo. 211, 20 S. W. 788, was a mandamus proceeding, asking that the circuit judge be compelled to certify relator's account for services as official stenographer. And in the still more recent case of State v. Johnson (Mo.) 27 S. W. 399 (reported in the same volume in which the majority opinion herein is to be found, 27 S. W. 379), a peremptory mandamus was awarded to compel the city comptroller to pay the increased salary of the chief engineer of the city's fire depart

ment. These cases abundantly show that this court has jurisdiction, and that it has not hesitated to exercise it in cases like the present. The case of Britton v. Steber, 62 Mo. 370,-a certiorari proceeding, relied on by respondent,-announces a different doctrine as to jurisdiction, to the effect that certiorari will not lie where appeal or writ of error will not, which is just the reverse of what all other adjudications and the textbooks announce, to wit, that as a general rule certiorari issues only where appeal or writ of error will not. Britton's Case has not been followed. It has been virtually overruled by Tracy's Case, and Philip's Case, supra, and indeed by every case since its adjudication, where original jurisdiction has been exercised by this court where appeal or writ of error would not lie.

The next point for determination is, what was the force and effect of the interlocutory order or judgment entered by respondent. It is claimed for it that it operated as a supersedeas. This, however, is a mistake. The rule, as I understand the authorities to announce it, is this: Where the judgment rendered has "been begun to be executed," a certiorari subsequently issued will not operate to stay the judgment or its enforcement. Patchin v. Mayor, etc., 13 Wend. 664; Blanchard v. Myers, 9 Johns. 66; Commissioners of Highways v. People, 99 Ill. 587; 1 Salk. 147; 2 Hawk. P. C. c. 27, § 63. In this case, as before stated, the judgment of removal had been entered and served on Reid on the 31st day of January, 1893, and on the same day the mayor had notified the city council of Reid's removal, as required by section 7 of article 4 of the city charter, stating the cause of such removal. Therefore there was nothing more for the mayor to do, or that he could do. The judgment was self-enforcing, and had been completely and fully executed, so that there was nothing left on which the certiorari issued on the 2d day of February, 1893, could operate as a supersedeas. Nothing remained, therefore, for the council to do but to fill the vacancy created by the judgment of removal. Hyde v. State, 52 Miss. 665; Throop, Pub. Off. § 327; Mechem, Pub. Off. § 460. And the removal of Reid having been accomplished by the judgment of the mayor, it was wholly beyond the power of the circuit court by its judgment to reinstate Reid in office. Shaw v. Mayor, 14 Ga. 162, and cases cited; State v. Meeker, 19 Neb. 444, 27 N. W. 427. If these views are correct, then the circuit court clearly acted in excess of its jurisdiction in adjudg ing that the certiorari suspended the judgment of removal, and in adjudging that the judgment of removal was not accomplished and effectuated before the issuance of the certiorari, issuing two days after the rendition of the judgment. For this excess of jurisdiction it is clear that certiorari would lie. 2 Spel. Extr. Relief, §§ 1 30, 1930.

But it is said that this court has a discre