but gave the following instructions for plaintiff: "(1) The court instructs the jury that it was the duty of the defendant, as circuit clerk, when the change of venue was taken to Schuyler county, to immediately make out a transcript of the record and proceedings in the cause, including the petition and affidavit and order of removal, and transmit the same, duly certified, together with all the original papers filed in the cause and 'not forming a part of the record, to the clerk of the circuit court of Schuyler county; and unless you believe that plaintiff, Charles T. Llewellyn, authorized or agreed for the defendant to withhold sending said transcript and papers, then your verdict will be for the plaintiff. (2) The court instructs the jury that it makes no difference that the transcript and papers could have been sent after defendant went out of office and in time for the case to be tried at the next term of circuit court of Schuyler county. Still, if you believe defendant, without any authority from plaintiff and without plaintiff's knowledge and consent, withheld said transcript and papers, and failed to send them before he did go out of office, then you will find for plaintiff. (3) The court instructs the jury that it was the duty of the defendant to immediately transmit the record and papers in the case of Llewellyn v. Llewellyn to the Schuyler county circuit clerk, unless he was notified by both the plaintiff and the defendants in said cause, or their attorneys, not to send said papers and transcript immediately. (4) The court instructs the jury that the plaintiff does not have to prove any pecuniary loss or damage, or that he is aggrieved; but the law presumes that he is aggrieved if you find that the clerk did withhold the transcript and papers on change of venue without the plaintiff's authority or consent." The court refused instructions asked by plaintiff, which, if given, would have cut out the defense, root and branch.

The court gave the following instructions for defendant: "(1) The court instructs the jury that unless they believe from the evidence that the holding up of the transcript until the expiration of Spangler's term as circuit clerk prevented the said plaintiff from securing a speedy trial, and that he was thus aggrieved thereby, you will find for the defendant. (2) If you believe from the greater weight of evidence that an arbitration of the case of Charles T. Llewellyn v. George Llewellyn et al., which had been removed to circuit court of Schuyler county by change of venue, was contemplated and pending by the parties, and on account thereof at the knowledge or consent of plaintiff defendant withheld the transcript until his term of office expired, your verdict should be for defendant. (3) In passing upon the question as to whether or not plaintiff authorized or agreed to the withholding of the transcript, you may take into consideration all the facts and circum

stances proven, and, if you find he did so agree, your verdict should be for the defendant. If you believe the plaintiff consented to the withholding of the papers, or had knowledge of the same being withheld, to await the contemplated or proposed arbitration, and did not object to such withholding, your verdict should be for the defendant."

C. T. Llewellyn, for appellant. O. S. & G. M. Callihan, for respondent.

BLAND, P. J. (after stating the facts). 1. The statute on which this suit is bottomed reads as follows: Section 825, Rev. St. 1899: "After Change, Clerk to Transmit Record. When any such order shall be made by the court or judge, the clerk shall immediately make out a full transcript of the record and proceedings in the cause, including the petition and affidavit and order of removal, and transmit the same, duly certified, together with all the original papers filed in the cause, and not forming a part of the record, to the clerk of the court to which the removal is ordered, and for failure to do so shall forfeit one hundred dollars to the party aggrieved, to be recovered by civil action." If the court was correct in refusing plaintiff's peremptory instruction, then the judgment should be affirmed, as the giving of instructions for the defendant is not assigned as one of the grounds for new trial in the motion therefor, and for this reason they are not reviewable. State v. Headrick, 149 Mo., loc. cit. 404, 51 S. W. 99; Fullerton v. Carpenter, 97 Mo. App., loc. cit. 201, 71 S. W. 98.

There

The uncontradicted evidence shows that the Schuyler circuit court did not convene, after November, 1902, until May 4, 1903, and the defendant went out of office on January 1, 1903, at which time he turned over his office and delivered the transcript and papers in the partition suit to his successor. after it became the duty of his successor to make the transmission, and if he negligently failed to do so in time to have the cause docketed for the May term, 1903, of the Schuyler circuit court, the defendant is not responsible for such negligence. I think the evidence shows that the transcript was negligently withheld; but the question in the case is, should that negligence be ascribed to defendant? He admits in his answer and in his testimony that he withheld the transcript, after he had it ready for transmission, for something like a month, and until after the expiration of his term of office. He thereby tacitly confesses that he violated the letter of the statute, but offers to justify his conduct by showing that he did not violate the spirit of the statute by what transpired between himself, and Mr. Whiteside, the attorney representing plaintiff's adversary in the partition suit. I think the evidence shows that both Whiteside and the defendant acted in perfect good faith. I think it also shows that, while the plaintiff did not

accede to the proposition to arbitrate the suit when first made to him by Whiteside, he did not refuse to consider it, but did consider it, and afterwards agreed to it. This evidence not only shows that Whiteside acted in good faith in requesting defendant to withhold the transcript, but that the plaintiff's conduct warranted Whiteside to believe the matters in dispute between plaintiff and his brother, George Llewellyn, including the partition suit, would be submitted to arbitration. In these circumstances, Whiteside was justified in taking steps to prevent the further accumulation of costs in the suit, and in asking that the transmission of the transcript be withheld until the proposition to arbitrate should be finally settled, especially in view of the fact that the Schuyler circuit court would not convene for more than four months, and withholding of the transcript was, apparently, as much to the interest of the plaintiff as to the interest of Whiteside's client. The evidence also shows that there was ample time, after the proposition to arbitrate was declared off by plaintiff, to have transmitted the transcript to the clerk of the Schuyler circuit court in time to have had it docketed for the May term, 1903.

But it is contended by plaintiff that, as the defendant was not instructed by him, or by any one for him or representing him, to withhold the transcript, what Whiteside told defendant furnished no justification to him for withholding the transcript. The purpose of the statute is to prevent unreasonable delay or negligence in the making out and transmission of transcripts of causes in which a change of venue has been awarded, and to secure an early opportunity for the trial of such causes in the courts to which the venue has been changed. What is meant by the term "immediately," as used in the statute, is that the transcript shall be made out and transmitted in such convenient time

as is reasonably necessary for performing these duties. State v. Clevenger, 20 Mo. App. 626; City of De Soto v. Merciel, 53 Mo. App., loc. cit. 60. If due regard is given to the nature and circumstances of the things to be done and the purposes to be accomplished, I do not think it can be said, as a matter of law, that the defendant was negligent, or that he violated the spirit of the statute, in withholding the transcript under the circumstances shown in evidence, especially in view of the fact that he did not withhold it beyond a day when it could reasonably have been transmitted to the clerk of the Schuyler circuit court in time to have been placed upon the May term, 1903, docket of that court. The evidence shows that defendant's successor might have transmitted the transcript at any time within two or three months after he took charge of the office and of the papers in the case, in time for the case to have appeared on the May term, 1903, docket of the Schuyler circuit court. If this had been done, plaintiff would not have had any ground to complain of the delay in the transmission, and certainly no cause of action against this defendant, based on the statute; for the purpose of the statute to secure a speedy hearing-would have been as fully performed as if the transcript and papers had been transmitted by defendant in December, 1902. For these reasons, I do not think the court committed error in refusing the preemptory instruction to find for plaintiff, nor in refusing such of plaintiff's instructions as would have practically withdrawn the case from the consideration of the jury.

2. Objections were made to the introduction of some of the evidence. The grounds of these objections are not specifically stated, and I do not discover that any inadmissible evidence was admitted at the trial.

Discovering no reversible error in the record, the judgment is affirmed. All concur.

1. JUDGMENT-DEFAULT-VACATION-TIME. Where a motion to set aside a default judgment was filed at the same term at which the judgment was entered, but more than four days thereafter, and the motion was undisposed of at that term, the court had jurisdiction to grant the same at the succeeding term, though no general or special order of continuance was entered. 2. APPEAL-OPENING DEFAULT JUDGMENT— DISCRETION-REVIEW.

An application to set aside a default judgment being within the discretion of the court, an order granting the same will not be interfered with on appeal, in the absence of a clear showing of abuse of such discretion.

Appeal from Circuit Court, Jackson County; John W. Henry, Judge.

Action by L. V. Harkness and others against Frank Jarvis and others. From an order setting aside a default judgment after the term, plaintiffs appeal. Reversed, and certified to the Supreme Court.

See 81 S. W. 446.

J. C. Williams and L. A. Laughlin, for appellants. H. S. Hadley, for respondents.

ELLISON, J. Plaintiff brought this action, returnable to the January, 1901, term, to recover judgment on a promissory note. There was personal service on defendants; but, when the case was called for trial at said January term, defendants did not appear, neither did they file an answer. Judgment was rendered for plaintiff by default. After the expiration of the four days' time allowed for motions for new trial and in arrest of judgment, but at the same term, the defendants filed a motion to set aside the judgment for reasons therein alleged. The motion was not acted on by the court at that term, but went over to the following April term without any special order of continuance. At the latter term the motion was sustained, and plaintiffs have appealed.

The plaintiffs challenge the power of the circuit court to set aside the judgment on the motion aforesaid, made at a subsequent term. They agree that the court had the power to do so at any time during the term, and that, though the motion was filed more than four days after the judgment, if the court had taken it up during the term and continued it, such action would have carried it over to the succeeding term, with power in the court to act upon it. But they contend that, not having been taken up and continued, the court's power ended with the term. They are sustained in this view by the majority opinion of the St. Louis Court of Appeals in Head v. Randolph, 83 Mo. App. 284; Judge Biggs, dissenting. We find ourselves in disagreement with that court. The Supreme Court held that a motion to set aside a judgment, filed more than four days after it was rendered, but at the same term, may be continued to a succeeding term, and then 88 S.W.-65

decided. Childs v. Railroad, 117 Mo. 414, 425, 23 S. W. 373. So, therefore, the only question for us to decide is whether a motion filed during the term, but more than four days after the judgment, and not reached or acted on, is continued over to the next term of court, in the absence of its being called up and continued over, or of a general order of continuance. It is undeniable that the legal right exists to file the motion during the term after the four-days limit. It becomes a part of the proceeding in the case, and the fact that it remains undisposed of at the end of the term must show that it was intended to be carried over to the next term. If pending cases are not continued by special order, and no general order is made, no one would suppose that such actions would abate. The practice in this state has been to continue docketing such cases in such instances until disposed of. So a motion for new trial which is undisposed of is continued over to succeeding terms without either a special or general order. Givens v. Van Studdiford, 86 Mo. 149, 56 Am. Rep. 421; St. Francis Mill Co. v. Sugg, 142 Mo. 364, 44 S. W. 249. It being clear that a cause undisposed of, and a motion for new trial filed within four days and undisposed of, are each continued to the succeeding term without an order, it ought to be equally clear that no order is necessary to carry over an undisposed of motion for new trial, filed without the four days. The court has no power to pass on either motion at a subsequent term, except by force of the continuance, and we cannot see why a continuance would be allowed without an order in the one and denied in the other. If it be conceded that the court has the power to continue a motion filed after the four days, by taking it under advisement until the next term, it must follow that the motion can be continued without being under advisement; for, if it is a question of power, the court cannot, of course, hold a matter under advisement beyond the period in which it has the power to act. The whole matter, it seems to us, is this: The continuance to a subsequent term carries along the power to act at that term, and such continuance, is had when the motion is undisposed of, without an order either general or special. Authorities supra.

There need be little said on the merits of the motion. The Supreme Court has many times stated and enforced the proposition that large discretion rests with the trial court in acting on motions to set aside judgments by default. Bank v. Armstrong, 92 Mo. 265, 280, 4 S. W. 720, and authorities cited. And it has been said that it is less apt to interfere with such discretion, where the judgment is set aside, than when it is not. This for the reason that, when set aside, the case is yet open, and that justice will yet be done. Helm v. Bassett, 9 Mo. 55. And the courts of appeals have followed this view. Longdon v. Kelly, 51 Mo. App.

572; Ensor v. Smith, 57 Mo. App. 584. The record in this case does not disclose anything whereby we can be justified in saying that the discretion was abused.

But, our decision on the first point, being contrary to that of the St. Louis Court of Appeals in Head v. Randolph aforesaid, we order the case certified to the Supreme Court as required by the Constitution. All concur.

LITTLE ROCK RY. & ELECTRIC CO. v. CITY OF NORTH LITTLE ROCK. (Supreme Court of Arkansas. Sept. 30, 1905.) 1. STREET RAILWAY FRANCHISE-AUTHORITY TO REVOKE-PRESENTATION OF QUESTION.

a

Where, in a suit to annul a street railway franchise conferred by ordinance providing that, before the franchise should be enjoyed, the company should obtain from the county court a confirmation of the right of way over bridge, the complaint alleged that application to the county court to confirm the right of way had never been made, and the answer admitted the allegation, and the only proof was the testimony of the company's manager that no application was made to the county court, and that he had believed that permission to cross the bridge would not be granted, the question of the authority to revoke the franchise on the refusal of the county court to grant permission was not presented. 2. APPEAL-SUPREME COURT-INJUNCTIONPOWER TO GRANT-PROVISIONAL RELIEF.

The Supreme Court, on appeal from a decree annulling a street railway franchise. has no authority to restrain the city from interfering with the tracks constructed under the franchise before the commencement of the suit, pending further proceedings by the company to test its rights under a municipal ordinance; that being a provisional relief to be awarded by the court in which the further proceedings are instituted, subject to review on appeal.

On petitions for rehearing. Overruled. For former opinion, see 88 S. W. 826. Rose, Hemingway & Rose, for appellant. James P. Clarke, for appellee.

McCULLOCH, J. Both parties seek a rehearing of the cause. Appellant asks that we set aside that part of the decision holding that Ordinance No. 1019, passed August 10, 1903, is void, and that appellant acquired no rights thereunder, and appellee asks that we set aside that part of the decision holding that Ordinance No. 1002, passed June 25, 1903, conferred a valid franchise. Upon consideration we adhere to the conclusion heretofore announced, and both petitions for rehearing will be overruled.

Counsel for appellee insists that, when the disannexation of territory was accomplished, the power reserved in Ordinance No. 1002 by the city of Little Rock to revoke the franchise upon the refusal of the county court to confirm the right of way over the free bridge, as well as all other rights and powers reserved to that municipality, passed to the city of North Little Rock, and that the latter could then properly exercise the power of revocation. He contends that we should, for

that reason, hold that appellant has no existent rights in the franchise conferred by that ordinance. It is sufficient to say, in response to that contention, that the condition upon which the power of revocation rests-i. e., the refusal of the county court to confirm the right of way over the free bridge is not shown either in the pleadings or proof in this case to exist. Appellee's complaint alleges that application to the county court to confirm the right of way had never been made, and appellant's answer expressly admits this to be true. J. A. Trawick, the manager of appellant company, testified (which was all the testimony on the subject) that no application was made to the county court, though he had reason to believe, he says, from information received, that permission to cross the bridge would not be granted. The question of revocation is therefore not presented to us in this record, and we cannot properly pass upon it.

We merely held in the former opinion that Ordinance No. 1002 conferred a valid franchise, and that at the time of the commencement of this suit an unreasonable time for the performance by the grantee of the conditions precedent therein named had not elapsed. Whether or not it is now too late for appellant, under the circumstances, to perform them and preserve the granted rights; whether the power of revocation passed to appellee upon the disannexation of territory, and, if so, under what circumstances it may be exercised; and whether or not appellant may proceed to the enjoyment of the franchise without obtaining from the county court the right of way over the bridge -are all questions which we have not decided, and do not deem it necessary or proper upon the record in this case to decide. They must be brought before us in proper proceedings and upon appropriate allegations and proof before a determination can be reached.

Appellant asks, further, that the judgment of this court be modified, so as to permit the tracks constructed under the franchise by appellant before the commencement of this suit to remain in the streets of North Little Rock pending further proceeding by appellant to test and secure enjoyment of its alleged rights under Ordinance No. 1002, and to restrain said city from disturbing said tracks during such further proceedings. This, however, is provisional relief, which must be granted, if at all, by the court of original jurisdiction in which such further proceeding is instituted, subject to review on appeal. We cannot grant it in this suit. Nothing in this decision will bar such relief, if appellant be shown in other respects to be entitled to it. Following the decree of the chancellor, appellant has in the original judgment here been allowed 60 days in which to dispose of or remove the tracks and material now on the streets of North Little Rock, and said period will run from this date.

To that extent the judgment heretofore entered here will be modified. In all other respects it will stand.

CRACRAFT v. MEYER et al. (Supreme Court of Arkansas. July 29, 1905.) 1. TAXATION-DEEDS-EFFECT AS EVIDENCE.

Rev. St. 1837, c. 128, §§ 133, 134, required the auditor to execute deeds to purchasers of lands forfeited to the state for nonpayment of taxes, and provided that such deeds should vest title in the grantee, and should be received in all courts as evidence of good title. Act July 15, 1868 (Laws 1868, p. 62, § 1), created the office of Commissioner of Immigration and State Lands, and gave the control and disposition of forfeited lands to the commissioner. Kirby's Dig. 8 4807, provides that all deeds issued by the State Land Commissioner to forfeited land shall convey to the purchaser all the title of the state to the land, and shall be received as evidence in any court of the state. Held, that commissioner's deeds to lands forfeited for nonpayment of taxes need not recite the taking of the steps which vested title in the state, but the deed itself is prima facie evidence that all preliminary steps necessary to title have been taken, and the burden is on the one attacking the same to show that some one of the prerequisites of the transmission of title was omitted.

2. SAME-OVERTHROW OF PRESUMPTION.

The fact that the record of deeds discloses no record of a deed to land which belonged to the state as Real Estate Bank lands, and which was not subject to forfeiture and sale for taxes, does not show that such land was not sold and afterwards forfeited to the state for nonpayment of taxes, nor overthrow the presumption of sale which arises from the issuance of a tax deed by the State Land Commissioner. 3. SAME EXEMPTIONS SALE OF EXEMPT

LANDS-EVIDENCE.

Under section 3, p. 97, Acts 1866-67, which exempted lands of the Real Estate Bank from taxation while in the hands of the receiver, and required the receiver, upon sale by him of any of such lands, to furnish the assessor with a correct list of the land sold for assessment in the name of the purchaser, the listing of such land for taxation is evidence of the sale thereof by the receiver.

4. SAME.

An act of 1867 exempted lands of the Real Estate Bank from taxation while in the hands of a receiver. In a proceeding to wind up the affairs of the bank the receiver was directed to make a list of all the lands in his hands, so that the same might be offered for sale. He accordingly made such list, and in his report of sale stated that he omitted from sale certain lands, as he was fully convinced by conclusive evidence that the bank had disposed of its interest therein. The sale and the report were confirmed by the court. Held, that such report of the receiver and confirmation thereof by the court constituted evidence which tended strengthen the presumption which arose from the subsequent issuance of a tax deed by the State Land Commissioner to land omitted from the sale that such land had been sold.

to

Appeal from Circuit Court, Chicot County; Zachariah T. Wood, Judge.

Action by George K. Cracraft against Carrie Meyer and others. From a judgment for defendants, plaintiff appeals. Affirmed.

B. F. Merritt, Robinson & Beadel, and Rose, Hemingway & Rose, for appellants.

N. B. Scott, E. A. Bolton, Garland Street, and James P. Clarke, for appellees. P. C. Dooley, for appellees W. H. Graves and B. F. Merritt.

WOOD, J. Appellee is in possession of certain tracts of land in Chicot county, Ark., under deeds from the State Land Commissioner, based upon a forfeiture of the land for the nonpayment of taxes. Her deeds are dated December 24, 1891, and July 23, 1897, respectively. She has made valuable improvements, and has been in the adverse possession of the lands since the deeds were executed. Appellant brought ejectment against appellee for the lands in controversy, claiming title by deed of the State Land Commissioner dated July 14, 1902, based upon alleged Real Estate Bank foreclosure.

1. As early as March 5, 1838, our Legislature passed an act requiring the auditor to execute deeds to purchaser of lands forfeited to the state for the nonpayment of taxes, and prescribing that such deeds "shall convey to the purchaser all the right, title, interest, and claim of the state thereto"; also that the deeds "shall vest in the grantee, his heirs or assigns, a good and valid title both in law and equity, and shall be received in all courts of this state, as evidence of good and valid title in such grantee, his heirs or assigns, and shall be evidence that all things required by law to be done, to make good and valid sale, were done both by the collector and the auditor." Rev. St. 1837, c. 128, §§ 133, 134. In Steadman v. Planters' Bank, 7 Ark. 427, this court, passing upon this statute, said: "Our statutes have changed the rule of law that it is incumbent upon the purchaser of lands sold for taxes to show that the sale was regular, and that the prerequisites to the sale existed, and were strictly complied with. The auditor's deed executed in accordance with the provisions of the statute vests in the purchaser all the right, title, interest, and estate of the former owner in and to such lands, and also all right, title, interest, and claim of the state thereto, and is declared to be evidence in all courts of this state of a good and valid title in such grantee, his heirs and assigns, and that all things required by law to make a good and valid sale were done both by the collector and auditor." In Merrick and Fenno v. Hutt, 15 Ark. 331, this court, speaking of this statute, said: "A more comprehensive provision could hardly be found, and it might seem at first view to make the tax title derived from the auditor valid against all objections. But that was not the design. The evil to be remedied was that the entire burden of proof was cast on the purchaser to show that every requisite of the law had been complied with, and the deed of the officer was not even prima facie evidence of the facts therein stated. The intention and scope of the statute was to change this rule so far as to cast the onus