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Jacobs v. Cauthorn.

a submission of that question to the voters, and an authorization by two-thirds of the qualified voters present and voting on said proposition. From the bill and the proof in this case we must hold that the increase was only for repairing and furnishing the school building. Therefore the facts here are controlled by the decision of Harrington v. Hopkins et al., supra.

Constitutional
Question.

III. It is pointed out by respondents that the above is a constitutional question, and that it was not raised seasonably by the appellants. Undeniably it is the general rule that constitutional questions must be raised at the first opportunity. [Milling Co. v. Blake, 242 Mo. 23, 1. c. 32; State ex rel. Franklin County v. Tibbe Electric Co., 250 Mo. 522, 1. c. 527; Lavelle v. Met. Life Ins. Co., 231 S. W. 616.] However, in this case the petition challenges the legality of the tax, and prays the court for general relief therefrom. In support of their contention that said tax was illegal, they point to. the constitutional provision which limits the rate of taxation in districts of the kind in question to $1 for each $100 valuation, and both from the bill and from the proof it appears that the rate voted at the annual meeting of the voters in this district was in excess of that amount, aggregating $1.25 for each $100 valuation. This rate was therefore illegal, and it is not the invocation of a constitutional question to uphold its illegality. This is a bill in equity, and upon the challenge to the legality of the tax, we look to the Constitution and statutes of the State. It is not a constitutional question, but obviously a simple matter of law.

IV. It is further contended by respondents that the bill is insufficient to support a decree restraining the imposition of said tax and that appellants had their remedy at law. It is true that the petition in this case follows narrow limits and a rather restricted course and is directed generally, as above. stated, to the manner by which said tax was

Illegal Tax:
Injunction.

Jacobs v. Cauthorn.

authorized and not to its legality, but an analysis of the bill shows that the petitioners challenged the legality of the tax upon general grounds and then appended a general prayer for relief against the burdens of an illegal tax. This was sufficient. [State ex rel. v. Drainage District, 269 Mo. 444, 1. c. 454; Thompson v. Lindsay, 242 Mo. 53, 145 S. W..472.]

It is not necessary to the exercise of equitable relief that plaintiffs should not have any remedy at law, but only that such remedy be inadequate or incomplete (McAlister v. Graham, 200 Mo. App. 279, 206 S. W. 393; Pocoke v. Peterson, 256 Mo. 501, 165 S. W. 1017); and when a court of equity once acquires jurisdiction of a case, it will retain it to do full and complete justice. [Supreme Lodge K. of P. v. Dalzell, 205 Mo. App. 207, 223 S. W. 786; Waddle v. Frazier, 245 Mo. 391, 151 S. W. 87; School Dist. v. Holt, 226 Mo. 406, 126 S. W. 462.]

'Action at Law as Remedy.

V. It is also urged by respondents that the bill in a way commits felo de se in this: that it charges that said tax was illegal and void, and that therefore it destroys itself as a bill in equity, for no equitable rights appear under such circumstances, and we are cited to the following cases as upholding that contention: Barrow v. Davis, 46 Mo. 394; McPike v. Pew, 48.Mo. 525; Hopkins v. Lovell, 47 Mo. 102. Undoubtedly the cases above mentioned so decided; the case of Barrow v. Davis, was decided at the August, term, 1870, of this court; the case of Hopkins v. Lovell, was decided at the October term, 1870, and the case of McPike v. Pew, was decided at the October term, 1871. These cases have not been specifically overruled by this court, but they have not been followed.

In the case of Overall v. Ruenzi, 67 Mo. 203, decided at the October term, 1877, of this court, it was said: "In regard to the propriety of an injunction on the facts stated, various authorities cited on either side have been examined, but we deem it necessary only to state the conclusions we have reached without any review of the cases.

293 Mo. Sup.-11

Jacobs v. Cauthorn.

It would be difficult, if not impossible, to reconcile the authorities, either here or elsewhere. But it is quite apparent that of late years, whether by reason of our statute in regard to injunctions first introduced in the Revised Code of 1865, or upon general grounds of expediency, this court has been disposed to regard with favor proceedings which are preventive in their character, rather than compel the injured party to seek redress after the damage is accomplished. We see no objection, therefore, to the mode adopted in this case to test the validity of the tax." The action in the Overall Case was by injunction, as is this case, to test the validity of a tax, and the cases cited by respondents were urged in that case and the foregoing excerpt from the opinion was the an

swer.

In the case of Ranney v. Bader, 67 Mo. 476, determined at the April term, 1878, of this court, it was pointed out that an injunction was the taxpayer's remedy, and to the same effect in the following cases and authorities: Valle v. Ziegler, 84 Mo. 214; State v. Saline County, 51 Mo. 350; Newmeyer v. Railroad Co., 52 Mo. 81; Rubey v. Shain, 54 Mo. 207; Ewing v. Board of Education, 72 Mo. 436; Arnold v. Hawkins, 95 Mo. 569; Perryman v Bethune, 89 Mo. 158; Winkler v. Halstead, 36 Mo. App. 25; 35 Cyc. 1050; 22 Cyc. 883.

In the later case of K. C. Ft. S. & Memphis Ry. Co. v. Chapin, 162 Mo. 409, the same cases relied upon by respondents were cited and urged, but the court decided that case upon the theory that injunction was proper and granted relief to the petitioners.

VI. There is no merit in the contention of appellants that the court should have given their instructions. "The unbending rule of practice is that instructions fill no office at all in an equity case; hence, for appellate purposes, error cannot be predicated or assigned upon the giving or refusing of them. In chancery the question is, not what the chancellor instructed himself to do, or how he talked the

Equity Suit:
Instructions.

Gloyd v. Gloyd.

matter over with himself. The question is: Did he seek equity and do it?" [Lee v. Lee, 258 Mo. 599.]

Respondents, however, invited the first mistake along this line, for at the close of the evidence on the part of the petitioners, they offered a demurrer. "What is true of instructions in general in equity is true of demurrers to the evidence in equity. They amount to the same thing, to-wit, nothing." [Lee v. Lee, supra, 1. c. 605; Troll v. Spencer, 238 Mo. 81, 1. c. 93.]

It follows from what has been said that the tax in question was about to be illegally levied and the pleadings and the proof warranting the decree, we reverse and remand the case with directions to the court nisi to set aside its order dismissing plaintiffs' bill and to enter an appropriate decree restraining the defendants and each of them from further procedure in the matter of said tax, as prayed in the bill, and it is so ordered. Railey and White, CC., concur.

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

FLEMMON E. GLOYD, Appellant, v. SAMUEL M. GLOYD, WALTER B. TAYLOR and WILLIAM B. GLOYD, as Trustees, and GEO. H. ENGLISH, Administrator of Estate of ALBERT M. GLOYD, Appellants, and MAIETTE S. GLOYD, Respond

ent.

Division Two, March 18, 1922.

1. SUIT IN EQUITY: Final Decree: Validity Determined as of Its Date. Where, after the trial and final decree in a suit in equity, a settlement is made with one of the defendants by the other parties, plaintiff and defendant, who all appeal from said decree,

2.

3.

Gloyd v. Gloyd.

the validity of said decree is to be determined on such appeal upon the theory that the respondent settled with was a party to the litigation and in court asserting her legal rights when said decree was rendered.

- Sale of Partnership Property: Allowance to Commissioner. Ten thousand dollars was a reasonable allowance to a special commissioner who sold partnership real estate for seven hundred thousand dollars, under the final decree in a suit in equity brought to sell such real estate to pay partnership debts and to convey a good title freed of all claims of all persons having any interest therein, in order to realize the fair value thereof and to prevent waste and loss to the partnership estate.

The part

The

Receiver: Jurisdiction. Plaintiff and his brother were equal partners in the lumber business. nership owned valuable real estate in Kansas City, Missouri. brother married, and thereafter, while temporarily in Colorado, made a will whereby (after giving his household goods, jewelry and automobiles to his wife) he devised and bequeathed his estate to plaintiff and another brother and his wife as trustees upon trusts to pay certain annuities and at the end of three years his wife was given fifty-two per cent of all the trust estate, including accumulated undisposed-of income. On the same day he added a codicil providing for any heir who might be born to his wife after his death. Contemporaneously, at the foot of his will, his wife, by a signed and attested writing, accepted the trust and benefits of the will, and in consideration of its benefits to her waived and relinquished her dower rights. About a year later the testator, having established his residence in California, made a new will, expressly revoking the former one, and by it devised and bequeathed his entire estate to plaintiff and another brother and a nephew as trustees upon certain trusts and with certain powers, and directed them out of the "net income" of his estate to pay certain legacies and among others to pay his wife the sum of ten dollars and no more. Five months thereafter he began suit in California against his wife for divorce, and in such suit four months later an interlocutory decree was rendered in his favor, which recited "that the plaintiff is entitled to a divorce from the defendant and that when one year shall have expired after the entry of this interlocutory judgment, a final judgment and decree shall be entered granting a divorce herein, wherein and whereby the bonds of matrimony heretofore existing between the said plaintiff and the said defendant shall be dissolved," etc. Before the year expired the testator died, and shortly thereafter his California will was probated in California, and his wife rejected it and refused the ten-dollar gift given her in it. Shortly after the death of

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