But longer desirous of calling in his money. this does not affect the question of consideration. It was not necessary that a benefit should accrue to defendant in making his promise. He made it, and the prejudice and inconvenience flowing to plaintiff in acting upon it was a sufficient consideration. 9 Cyc. 311, 312. Nor is it necessary that defendant's promise to receive the money and surrender the note and release the deed of trust be shown by defendant's express, specific, and definite statement to that effect. His request of plaintiff to get the money and pay off the note would necessarily imply that promise on his part, even if there was nothing else to show such promise. 9 Cyc. 333. [4] The damages recovered were the expenses necessarily incurred by plaintiff in complying with his contract. No such expense would have been made but for the contract. By reason of defendant's breach, plaintiff has lost the money represented by the above expense and has received no corresponding benefit, since he is in the same situation as he was before concerning the debt he owes defendant. A party suing for the breach of a contract may recover all necessary expense incurred in performing his part thereof. 13 Cyc. 63; Hammond v. Beeson, 112 Mo. 190, 20 S. W. 474; Smith v. Sherman, 4 Cush. (Mass.) 408; Athletic Baseball Ass'n v. St. Louis Sportsmen's Park Ass'n, 67 Mo. App. 653. None of these expenses were voluntarily assumed by plaintiff, but grew out of the contract and were necessary in order for him to comply therewith. There is no error in the case. The judgment is affirmed. All concur. HARDIN v. ROBERTS COTTON OIL CO. (No. 13694.) to recover damages for personal injuries alleged to have been sustained by him in the operation of a cotton gin. From a judgment in favor of respondent, plaintiff has appealed to our court. As reluctant as we are and always have been to dispose of any case other than on the merits, we are obliged to do so with the present case. A very careful examination of the printed abstract furnished by appellant fails to show any order of record of the court, judge, or clerk, of the filing of any bill of exceptions in the circuit court of Bollinger county, from the judgment of which court this appeal was taken. What purports to be the bill of exceptions in the case is in the abstract. Preceding this bill of exceptions is what is intended to be the record proper, but which contains matter properly belonging to the bill of exceptions. The last entry in this is an objection to remarks of counsel, followed by the ruling of the court on the objection and then an exception to the ruling. Following this is the venue, title of cause and this: "Defendant's Bill of Exceptions." No entry here appears showing that it was filed in court. At the end of the bill of exceptions is the usual certificate of the judge of the circuit court, that the bill of exceptions had been presented to him in pursuance of leave granted, the appellant praying "that the same may be signed and sealed as such and made a part of the record in this cause, which is accordingly done, this 24th day of February, 1913." This is signed by the judge. Following this is the entry: "Filed, February 26th, 1913." Where it was filed, by whom this date of filing was attached, no where appears. Apart from this recital in the bill of exceptions itself, there is nothing whatever in the abstract to show that this bill or any (St. Louis Court of Appeals. Missouri. Feb. 2, bill of exceptions was ever filed with the 1915.) APPEAL AND ERROR 511-RECORD-FAILURE TO SHOW FILING OF BILL OF EXCEP TIONS. The failure of the abstract to show that the purported bill or any bill of exceptions was ever filed with the clerk of the court below was fatal to a review; and the recital of the filing of a bill of exceptions, appearing only in the purported bill itself, did not supply the omission of an entry of filing in the record proper, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2319-2321; Dec. Dig. 511.] Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge. Action by Joe Hardin against the Roberts Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed. W. M. Morgan, of Marble Hill, and E. L. Westbrook, of Jonesboro, Ark., for appellant. Bradley & McKay, of Kennett, and K. C. Spence, of Bloomfield, for respondent. clerk or in court. Proceeding under our Rule 33 (181 Mo. App. xii, 169 S. W. xix), counsel for respondent duly served and filed objections to the abstract for many reasons, among others, because that abstract fails to show any order of the court covering the fact of filing the bill of exceptions. While counsel for appellant have met many of the objections made to the abstract, they have not met this particular point, nor overcome this objection, which if true, is fatal and precludes any considerations, and which can only be considered by tion of matter covered by the bill of excepus when preserved in and brought before us by bill of exception. In such condition, that is, the lack in the record of any entry showing the filing of a bill of exceptions, our Supreme Court has so distinctly and in so many cases laid down the law which must govern, that we are bound to follow that ruling, and cannot overlook or disregard this fatal omis [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 90-117; Dec. Dig. 4. HABEAS CORPUS 56.] 94 SCOPE of Inquiry sion. Among the latest of the decisions cov-[thority to attach or commit him for failure to ering this point is that of Wallace v. Lib- obey the subpoena. by, 231 Mo. 341, 132 S. W. 665, where it is held that the failure of the record proper to show the filing of a bill of exceptions, is fatal to a hearing in the appellate courts, on matters which can only be preserved by a bill of exceptions, it being further said in that case, as has been said in many others, that the recital of the filing of the bill of exceptions appearing only in that bill itself, does not supply the omission of an entry of filing in the record proper. See also Langstaff v. City of Webster Groves, 246 Mo. 223, 151 S. W. 456. In the light of these decisions of our Supreme Court, we are obliged to hold that there is nothing before us for review but the record proper. Finding no error in that, the judgment of the circuit court must be and is affirmed. Feb. 1, 1915.) 1. HABEAS CORPUS 53 PETITION. Missouri. SUFFICIENCY OF -JURISDICTIONAL POWERS. The authority or jurisdiction of a committing officer can be inquired into in a hearing on a writ of habeas corpus. [Ed. Note.-For other cases, see Habeas Cor pus, Cent. Dig. §§ 82, 92; Dec. Dig. 94.] 5. HABEAS CORPUS 75-PROCEEDINGS-RETURN-ISSUES. A return to a petition for habeas corpus, reiterating the petitioner's charge of invalidity of the proceeding under which he was restrained, raised the issue to be tried and determined by the evidence on the trial as any other issue. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 66; Dec. Dig. 75.]· 6. HABEAS CORPUS 113-JURISDICTION OF CIRCUIT COURT-CONCLUSIVENESS. risdiction is conclusive, and not subject to ap A discharge by the circuit court having ju peal, whether erroneous or not. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. 113.] 7. HABEAS CORPUS 113- PROCEEDINGS — ATTORNEY'S FEE-STATUTE. Under Rev. St. 1909, § 2038, giving "any party to a suit aggrieved," etc., the right to appeal, plaintiff, in an action against a railroad, who in habeas corpus proceedings by one to whom a notary had issued a subpoena to take a deposition in the action wherein petitioner was discharged, suffered a judgment of a $10 attorney's fee and costs, had a substantial interest in that part of the judgment, and was entitled to appeal therefrom. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. 113.] 8. HABEAS CORPUS 116-DISCHARGE-ATTORNEY'S FEE-STATUTES. A petition for a writ of habeas corpus alleging that petitioner was restrained, and the facts by which such restraint came about, and alleging that the notary, whose subpoena to take a deposition he had disobeyed, and by whom attachment was issued requiring the sheriff to hold him until he should be discharged in due course of law, had no authority to take his depUnder the express provision of Rev. St. osition because no summons was ever served on 1909, § 6404, a party plaintiff, who had procurdefendant in the case in which the depositioned the issuance of a subpoena to take a deposiwas proposed to be taken, and no notice had ever been given defendant of the proposed taking thereof, was sufficient. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. $$ 50, 502; Dec. Dig. 53.] 2. HABEAS CORPUS 85- EVIDENCE - PRESUMPTION OF NOTARY'S JURISDICTION. There is no presumption of jurisdiction in favor of a notary as there is in a case where petitioner shows that his liberty is restrained by a judgment of a court of competent jurisdic tion. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. 85.] 3. DEPOSITIONS 56 - AUTHORITY OF NO TARY-NOTICE-STATUTES. tion in his suit which was disobeyed by the party summoned, who on petition for habeas corpus obtained his discharge from commitment therefor, was properly adjudged liable for an attorney's fee and costs for prosecuting the habeas corpus proceeding. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 118; Dec. Dig. 116.] 9. APPEAL AND ERROR 756-BRIEF-REQ UISITES. of the trial court is plainly supported by the fol A brief merely averring that "the judgment broken list a full page of decisions, is no brief lowing statutes and decisions," citing in one un at all. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. 756.] Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge. In the matter of the application of Henry W. Whicker for a writ of habeas corpus. From an order discharging petitioner and taxing an attorney's fee and costs, Harry B. Wolf appeals. Affirmed. Under Rev. St. 1909, § 6392, requiring notice to a party or to his attorney of the taking of a deposition; section 6396, requiring such notice to be served at least three days before the taking of the deposition, with additional time depending upon the distance between the point of notice and the place of taking the deposition; and section 6394, providing that, where the adverse party is a railroad, notice may be served by delivering a copy thereof to any of its station agents-notice to petitioner, who was not the station agent of defendant in the action, without other notice, or any showing that petitioner was an agent upon whom summons could be served, under section 1766, providing for service of summons on corporations, left the notary without authority to issue a subpoena to TRIMBLE, J. Harry B. Wolf appeals take his deposition, and consequently no au- from an order of the circuit court of Jackson W. F. Riggs, of Kansas City, for appellant. William Thomson, of Kansas City, for respondent. tions, because no summons was ever served on defendant in the case in which the depositions were proposed to be taken, and that no notice had ever been given defendant of the proposed taking thereof. Petitioner set out the facts as fully and as explicitly as it was possible for him to do. He could not be more explicit, since the acts constituting the facts rendering the notary's attempt to take depositions valid or invalid were all within the breast and knowledge of the plaintiff in the case in which the depositions were sought to be taken. The cases cited by appellant on the insufficiency of the petition have no ap county, Mo., made in a habeas corpus proceeding wherein the petitioner, Henry W. Whicker, was discharged, and an attorney's fee of $10, together with the costs of the proceeding, were taxed against the appellant. Wolf filed a suit in a justice court against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. The record is silent as to whether or not summons was ever issued and served on the defendant, and also as to whether said railway is a resident or foreign corporation, or has a line of railway in Jackson county. On December 3, 1913, Wolf, desiring to take depositions in said case, attempted to give notice thereof to the defend-plication. In many of them the petition had ant therein, and went about it in this manHe delivered a copy of such notice to Henry W. Whicker, and indorsed upon the original of such notice an affidavit, which, omitting jurat, is as follows: ner: The notary before whom the depositions were to be taken issued a subpoena for Whicker and the same was served upon him. When it was discovered that Whicker would not appear nor obey the subpoena, the notary issued an attachment for him, requiring the sheriff to take and keep him unless he should be discharged by due course of law, and upon such writ the sheriff took Whicker into custody. Thereupon Whicker brought habeas corpus in the circuit court. The ground of Whicker's objection to the validity of the notary's action was that the notary had no jurisdiction to take the depositions, first, because no summons was served upon the defendant in the case of Wolf v. the Railway; second, because no notice of the taking of the depositions was ever served upon the defendant railway as required by law. After hearing the evidence, the circuit court found that Whicker was being unlawfully restrained of his liberty, and ordered him to be discharged, and ordered that an attorney's fee of $10 be taxed in favor of Whicker and against Harry B. Wolf as the party litigant in the case of Wolf v. the said Railway in whose behalf the refused evidence was required; and the court rendered judgment in favor of said Whicker and against Wolf for the said sum of $10 and the costs. Appellant's first contention is that the petition for a writ of habeas corpus was wholly insufficient. It may be remarked here that no attack whatever was made on the petition in the trial court. [1] But we do not think the petition was insufficient. It stated the fact of his being restrained and the facts by which such restraint came about, and alleged that the been directly attacked in the hearing of the habeas corpus, and this fact is explicitly recited in the cases of prohibition or certiorari brought thereon in the Supreme Court. The case of State ex rel. v. Dobson, 135 Mo. 1, 36 S. W. 238, has no application. The opinion says on page 8 of 135 Mo., on page 239 of 36 S. W.: "The petition does not state nor pretend to state 'all the facts concerning the imprisonment and the true cause thereof'; there is not even an allusion to those facts or to the cause of detention contained in the petition." But in the petition here the facts are stated, and the fact of want of notice is given as the ground of the invalidity of the act by which petitioner is restrained of his liberty. And there are other reasons why the Gibson Case and others cited have no application. [2] There is no presumption of jurisdiction in favor of a notary, as there is in a case where the petitioner shows that his liberty is restrained by the judgment of a court of competent jurisdiction. Ex parte Krieger, 7 Mo. App. 367, loc. cit. 369; In re Green, 126 Mo. App. 309, loc. cit. 316. [3] The authority of the notary to take depositions depends upon whether notice was served upon defendant in the case wherein the depositions are to be taken. He can only exercise his authority in pursuance of such notice. In re Green, 126 Mo. App. 309, loc. cit. 317, 103 S. W. 503; sections 6392-6394, 6396, 6 R. S. Mo. 1909. There was no notice served upon the railway defendant in the suit. Section 6394, R. S. Mo. 1909, in relation to the service of notice to take depositions, says: * "In case the adverse party is a railroad * such notice may be served by delivering a copy thereof to any station agent of such railroad corporation." If it be true that service of notice to take depositions on the local agent of a foreign corporation, upon whom a summons to the corporation could be legally served, is a valid service of such notice on the corporation, this does not help appellant. The return shows on its face that Whicker was not a station agent, so that the notice did not comply with section 6394. It did not show that there were no station agents of the defendant railway in the county on whom notice er was an agent upon whom summons could, 114 S. W. 987; State ex rel. v. Shelton, 238 be served pursuant to section 1766, R. S. Mo. Mo. 281, loc. cit. 297, 142 S. W. 417. Besides, 1909. Petitioner made a showing that no the findings of the court and the judgment notice to take depositions was served upon based upon appellant's individual acts in the the defendant railway. So far as the record premises make him a party to the suit. It shows, no contrary evidence was offered to is only with reference to that feature of the show that any notice was given. The notary judgment allowing the attorney's fee and adwas without authority to take depositions, judging the costs against appellant that we and consequently was without authority to have considered the appeal at all. However, subpoena Whicker, and, of course, had no au- to determine whether or not this feature of thority to attach or commit him for failing it can be upheld, we are perhaps required to to obey the subpœna. examine into the validity of the entire proceeding, since if there was no valid habeas corpus proceeding before the trial court, or if that court was without jurisdiction, or otherwise should not have discharged the petitioner, it would doubtless have no authority to render judgment for an attorney's fee or adjudge the costs against the appellant. But our views upon that question could in no way affect the judgment so far as the petitioner's right to his liberty under the discharge is concerned. [4] And this authority or jurisdiction can be inquired into in a hearing on the writ of habeas corpus. Ex parte Bedard, 106 Mo. 616, 17 S. W. 693; Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158; Ex parte Snyder, 64 Mo. 58. [5] Aside from the question of the petition being insufficient, it is a nice question whether or not the return to the writ was sufficient to meet the charge of invalidity contained in the petition, since it discreetly avoided stating anything which bore upon that charge. But the return reiterated that charge, and, in effect, raised the issue to be tried and determined by the evidence upon a trial like any other issue. In re Breck, 252 Mo. 302, loc. cit. 319, 158 S. W. 843. [6] The circuit court had jurisdiction and has discharged the petitioner, and such discharge, whether erroneous or not, is final and conclusive and not subject to appeal. Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218; In re Breck, 252 Mo. 302, 158 S. W. 843. This point is not adverted to by either side in the presentation or briefing of this case, nor were any authorities therein cited. [7] But although nothing is said on this point, we assume that what appellant is really appealing from is the judgment against him for the $10 attorney's fee and the costs. Since such a judgment as this was rendered, he is entitled to an appeal because he is affected by the judgment; and, by reason of the adjudication of the costs and attorney's fee against him, he has a substantial interest in that feature of it at least. Section 2038, R. S. Mo. 1909; McMurray v. State Bank of Savannah, 74 Mo. App. 394; In re Switzer, 201 Mo. 66, loc. cit. 83, 84, 98 S. W. 461, 119 Am. St. Rep. 731; Nolan v. Johns, 108 Mo. 431, loc. cit. 436, 18 S. W. 1107. It is true these decisions were rendered when section 2038 (then section 2246, R. S. Mo. 1889) said, "Every person aggrieved by any final judgment," etc., "may take an appeal," and were decided before this section was changed by the Act of April 18, 1891 (Laws 1891, p. 70), so as to read, "Any party to a suit aggrieved," etc. But that amendment, as construed by our Supreme Court, made no change in the meaning of the statute, and took away no right of appeal given to any one by the statute that was repealed. Thom [8] With reference to the allowance of the attorney's fee and the costs and the judgment rendered therefor against appellant, we have only to say that section 6404, R. S. Mo. 1909, giving the notary power to commit without bail for refusal to testify, also pro vides that: "In case such person be discharged from such commitment or imprisonment upon habeas corpus sued therefor, the party or parties litigant, in whose behalf the refused evidence shall have been required, shall be liable to pay such person the costs by him incurred in effecting such discharge; and the judge or court hearing the application for discharge may, in its discretion, at the time of such discharge, allow a further sum of not exceeding $25 for an attorney's fee for prosecuting the proceedings on habeas corpus, to be paid by such party or parties litigant to the person so discharged." Appellant makes no claim of a lack of jurisdiction over him save and except on account of the alleged insufficiency of the petition for the writ of habeas corpus, and raises no objections other than those we have hereinbefore considered. Perceiving no reason why the judgment in this particular should be disturbed, it will be accordingly affirmed. [9] Before closing, however, we desire to say that the brief furnished by petitioner has given us very little help in arriving at a solution of the questions involved in this case. We cannot commend the method adopted in preparing such brief. In fact, to merely say "the judgment of the trial court is plainly supported by the following statutes and decisions," and then cite in one unbroken list a full page of decisions, some of which are applicable and some are not, is no brief at all. If the heavy docket of this court and the labor of keeping up with it allowed us ample time to do wholly independent and original research work in the cases before us, it would doubtless be a pleasure to work cases out ourselves unaided by any one. But posal, we should not be required to do this action of the court on the motion is a matwhere it is not imperatively necessary. The judgment is affirmed. All concur. 549-RECORD-BILL APPEAL AND ERROR [Ed. Note.-For other cases, see Appeal and Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge. ter belonging in the record proper. This is true. "The record proper must show the filing of the motion, and the action of the court thereon; but if an exception to the action of the court is to be taken, it must be preserved in the bill of exceptions, and in abstracting such bill of exceptions the fact that the exception has been preserved must appear." Hays v. Foos, 223 Mo. loc. cit. 423, 122 S. W. 1038. It follows that the action of the court in sustaining the motion for a new trial must be affirmed; and it is so ordered. REYNOLDS, P. J., and NORTONI, J., con cur. On Motion for Rehearing. Learned counsel for appellant fear that we have overlooked the argument advanced in their reply brief in support of the contention that it is not essential that the record show the saving of an exception where a Action by Charles W. Ferguson against Charles A. Baker. From an order granting a new trial after verdict for plaintiff, on which judgment was entered, plaintiff ap-motion for a new trial is sustained. We did peals. Affirmed. J. H. Trembley, of Webster Groves, and Collins, Barker & Britton, of St. Louis, for appellant. F. J. McMaster, of St. Louis, and Stevens & Stevens, of Clayton, for respond ent. ALLEN, J.. This is a suit to recover damages for alleged false and fraudulent representations made by defendant to plaintiff, while acting as the latter's agent, whereby plaintiff is said to have suffered loss in and through the sale of a lot of ground in Webster Groves, Mo. Upon a trial of the issues below there was a verdict for plaintiff, upon which judgment was accordingly entered. Thereafter a motion for a new trial filed by defendant was sustained, and a new trial granted, from which order plaintiff prosecutes this appeal. not overlook this argument, but regarded it et al. (No. 13886.) Feb. (St. Louis Court of Appeals. Missouri. On appeal from a judgment for defendants on demurrer to the petition in an action for false imprisonment, in which plaintiff prays for judgment for $25,000 as compensatory damages, and $25,000 as punitive damages, the amount involved is in excess of the jurisdiction of the Court of Appeals, and the cause will be transferred to the Supreme Court. The point is made that the record shows McCONNELL v. CITY OF ST. CHARLES no exception saved by appellant to the ruling of the court sustaining respondent's motion for a new trial. As no such exception appears in the record, this alone suffices to prevent a review here of the action of the lower court in granting the new trial. Under our appellate practice, an adverse ruling upon a motion for a new trial is not open to review in the absence of an exception preserved thereto. Appellant concedes that this is true where a motion for a new trial is overruled, but suggests that a different rule should obtain where the motion is sustained. But it cannot matter what may be the court's ruling upon the motion, for in any event its ruling thereupon, adverse to appellant, is a matter of which appellant cannot complain, unless it appears that an exception thereto was saved. [Ed. Note. For other cases, see Courts, Cent. Dig. $$ 487, 491, 644, 646-648, 650, 652-659, 661; Dec. Dig. 231.] Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge. Action by Alda McConnell against the City of St. Charles and others. From a judgment Cause It was suggested by learned counsel for for defendants, plaintiff appeals. appellant, in argument ore tenus, that the transferred to the Supreme Court. |