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of the tree or a point very near it and began | there was no reasonable probability of an octo descend. He stepped down upon another currence like that detailed in the evidence, limb which broke and he fell against the and therefore there is no liability, concluding wires, and was severely shocked and burned. thus: He fell to the ground, but there is no evidence he received any injury except those inflicted by the wires. Respondent had not been in the tree, before.

I. The Court of Appeals (187 S. W. 556) gave recognition to the general principle that a company like appellant, if reasonably chargeable with knowledge, or of facts making it reasonably probable, that persons may lawfully come into close proximity to its wires for purposes either of business or pleasure, is obligated "to use every precaution which was accessible to insulate its wires at" such places and to use the utmost care to keep them so. Geismann v. Electric Co., 173 Mo. loc. cit. 674, 73 S. W. 654; Von Trebra v. Gaslight Co., 209 Mo. loc. cit. 659, 108 S. W. 559; Clark v. R. R., 234 Mo. loc. cit. 418, 419, 137 S. W. 583; Campbell v. United Rys., 243 Mo. loc. cit. 152, 147 S. W. 788. II. The Court of Appeals also recognized the rule that a company stretching electric wires in a city, through trees like the evidence tends to show the tree in this case to have been, must take notice of boyish impulses and anticipate the presence of children in such trees. In this connection it quoted from a case (Temple v. Elec. Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924) in which the Supreme Court of Mississippi

said:

"Whether this appellee knew that this particular small boy was in the habit of climbing this tree or not, it is clear from the averments of the declaration that it did know the tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know, that it was just the kind of tree that children might climb into and play in the branches."

The Court of Appeals cited cases and texts supporting the principle. It is well established. Mullen v. Gas & Elec. Co., 229 Pa. loc. cit. 57, 58, 77 Atl. 1108; Benton v. Public-Service Corporation, 165 N. C. 357, 81 S. E. 448; Thompson v. Slater (App.) 193 S. W. loc. cit. 973, 974; Sweeten v. Power & Light Co., 88 Wash. 679, 153 Pac. 1054; Electric Light Co. v. Healy, 65 Kan. 798, 70 Pac. 884; Meyer, Adm'x, v. Light & Traction Co., 151 Wis. 279, 138 N. W. 1008; Talkington v. Power Co., 96 Wash. 386, 165 Pac. 87; Birmingham, etc., Co. v. Cockrum, 179 Ala. 372, 60 South. 304; Hayes v. Power Co., 95 S. C. 230, 78 S. E. 956; O'Gara v. Electric Co., 244 Pa. loc. cit. 159, 160, 90 Atl. 529; Curtis on Law of Electricity, § 512; Joyce on Electric Law, § 445. The Temple Case often has been cited approvingly in yet other decisions, and, so far as we can discover, has been criticized in none. The principle is sound.

III. Having reached these conclusions, the Court of Appeals further held the princi

"Applying these principles to this case, we cannot hold that defendant should have anticipated that a boy or any one, would climb to the apex of the roof, and attempt to go from thence

to the top of the tree, and in so doing fall on

these wires.'

[1] After a careful examination of the record, we are convinced the Court of Appeals fell into error as to the facts. Two witnesses testified as to the time and manner of respondent's fall. Both testified he had climbed into the tree and had begun to descend before he fell. That part of the testimony quoted by the Court of Appeals does not negative this idea, and other testimony of the witness quoted, both on direct and cross examination, is clearly to the effect that respondent had begun his descent before he fell upon the wires. The bough over which respondent climbed into the tree did not give way. Nor did respondent fall while climbing into the tree. The photograph is not conclusive. The photographer testified the position of the camera had much to do with the appearance of nearness or distance between objects shown by a photograph. Mrs. Hughes gave testimony tending to show branches had been cut from the tree after the accident and before the photograph was taken. Even without any of this testimony, it certainly could not be conclusively held there was no evidence the boy climbed into the tree from the house. The decisions cited by the Court of Appeals as warranting the holding last mentioned are, in general, those proceeding upon the principle that an electric company which has placed its wires where they are practically inaccessible, or where they can be reached only by overcoming considerable difficulty or danger, i. e., in places where the presence of persons is not reasonably to be anticipated, are not, ordinarily, liable for injuries resulting from contact with them. Card v. Electric Co., 77 Wash. loc. cit. 569, 137 Pac. 1047; Braun v. Electric Co., 200 N. Y. loc. cit. 494, 495, 94 N. E. 206, 35 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370. Several decisions cited in the opinion are from courts which have approved and applied the rule in the Temple Case, and othNone of them criticizes ers distinguish it. it. The facts of the record render these cases inapplicable, and bring the case within the principle of the Temple Case. That principle, so far as this case is concerned, is that electric companies which stretch wires through trees which children can climb must anticipate the presence of children in such trees and govern themselves accordingly. Everybody knows boys will climb trees. It is the probability of their presence there

of Geismann v. Elec. Co., supra. The rule is not that only such boys are protected as may climb from the ground into a tree. The thing required to be anticipated is the presence of children in the tree. The method by which they get into it cannot ordinarily be very important. Respondent was not injured by reason of coming into the tree from the house. He did not fall from the house. He had climbed into the tree and was engaged in descending the tree when he came into contact with the wires. Can it be that the company would be liable if the boy had been climbing up and had touched the wires and is not liable because he came in contact with them while attempting to descend? The Court of Appeals does not say so. Neither do we. The boy had reached a place where he had a right to be and where appellant reasonably might have anticipated his presence. His method of reaching the place may have been unusual, but that method did not bring about his injury. The trial court was right in its conclusion on this phase of the case. [2] IV. The Court of Appeals correctly held respondent was not to be treated as a trespasser. This is true whether the tree was in the alley or on private property. It was not appellant's property. This is the rule in Missouri, as shown by cases cited by the Court of Appeals, and is the rule elsewhere. Daltry v. Elec. Co., 208 Pa. loc. cit. 412, 57 Atl. 833; Thompson v. Power Co., 77 N. H. 92, 88 Atl. 216; Nelson, Adm'r, v. I.. & W. Co., 75 Conn. loc. cit. 551, 54 Atl. 303; Birmingham, etc., Co. v. Cockrum, 179 Ala. 372, 60 South. 304; Commonwealth Elec. Co. v. Melville, 210 Ill. loc. cit. 77, 70 N. E. 1052. [3] V. Was respondent guilty of contributory negligence as a matter of law?

Of

against an insufficient guard or barrier, which gave way. The court said no negligent act appeared, and held the facts justified a finding of due care. In Union Pacific Ry. v. McDonald, 152 U. S. loc. cit. 281, 14 Sup. Ct. 626, 38 L. Ed. 434, a boy in running beside a slack heap slipped and fell into it. The Supreme Court of the United States held that "his falling into the slack heap was accidental and in no proper or just sense the result of negligence." In Birsch v. Electric Co., 36 Mont. loc. cit. 579, 93 Pac. 940, a workman engaged in building a wall near wires improperly insulated stepped upon a mortar board and slipped. He threw out his arms involuntarily and struck the wires. The court held the slipping accidental, the contact with the wires involuntary, and the fact no bar to plaintiff's case. In Wade v. Electric Co., 98 Kan. 370, 158 Pac. 28, appellant company insisted the judgment should be reversed because the evidence failed to show that decedent slipped and fell upon the wires, as alleged in the petition. In Humphreys v. Coal & Coke Co., 73 W. Va. 495, 80 S. E. 803, L. R. A. 1916C, 1270, a coal mine track layer slipped, and, in falling, caught a live wire stretched near by. The court held there was "no evidence of contributory negligence." In Colusa Parrot M. & M. Co. v. Monahan, 162 Fed. 276, 89 C. C. A. 256, a laborer upon a wet roof slipped, and in falling grasped a live wire. The Circuit Court of Appeals held this did not bar plaintiff. In the case of Elliott v. Light Co., 204 Pa. 568, 54 Atl. 278, a ladder on which a painter was at work slipped. The painter, endeavoring to save himself, grasped a nearby wire. He was shocked by the wire, and, it seems, injured by the fall. The court held the proximate cause

course, his presence in the tree was not such of the injury was the fall; that defendant negligence. Nor does the fact that he slipped was not responsible for the fall of the lador fell upon the wires bar the action. In Thompson v. Slater (App.) 193 S. W. loc. cit. der; that it would be speculation to attempt 974, 975, the St. Louis Court of Appeals decid- to "differentiate between the extent of the injury he did receive and that which he would ed an analogous question. A limb on which a boy was sitting broke and he fell against un-contact with the electric wire in the course probably have received if he had not come in insulated wires passing through the tree. of his fall. It is quite possible the wire

The court held the noninsulation and not the

helped break the fall, and thus lessen the extent of the injury," but that, in any event, the presence of the wire did not bring about the accident. Whatever view is taken of the correctness of this decision (Birsch v. Elec. Co., 36 Mont. loc. cit. 582, 93 Pac. 940), the

fall was the proximate cause of the injury. In Lydon v. Edison Co., 209 Mass. 529, 95 N. E. 936, decedent, while destroying moths in a tree, was killed by contact with defend ant's uninsulated wires. The court held that had there been proof decedent "accidentally slipped or lost his balance, and instinctive-settle the principle of the cases previously ly or naturally threw up his hand and happened in that way to touch the wire, that

would not be inconsistent with due care on

his part." The lack of such evidence resulted in a judgment for the company, the rule as to the burden of proving due care being not like ours. The court cited Garant v. Cashman, 183 Mass. loc. cit. 18, 66 N. E. 599. In that case a laborer standing on a bench in

facts distinguish it. In no event does it un

cited. In the circumstances it cannot be said this nine year old boy is barred of redress by the facts shown by this record. The boy's presence in the tree did not constitute contributory negligence. There was no direct evidence he knew of the defect of insulation. There was no evidence he purposely touched the wires. The uncontradicted evidence

[4, 5] VI. Appellant criticizes instruction 1, given at respondent's instance.

(a) The criticism directed at that part of the instruction referring to the scaffolding need not be considered, since appellant requested an instruction including the same

ELROD v. CARROLL. (No. 18873.)
(Supreme Court of Missouri, Division No. 1.
March 4, 1918. Rehearing Denied
March 29, 1918.)

1. APPEAL AND ERROR

1008(2)-COLLATER

AL ATTACK-BINDING FORCE.

FICIAL ACTION.

In the absence of evidence to the contrary, the trial court had the right to presume that a file, with the recorder, an abstract of attachsheriff had performed his duty to make out and ment.

3. JUDGMENT 495(2)—COLLATERAL ATTACK -VIOLATION OF STATUTE.

matter. A judgment, rendered after trial without a (b) The contention that the instruction ex-jury and without instructions, sustained by subcluded the defense of contributory negligence stantial evidence, is binding upon the Supreme has a semblance of substance, but must be Court on appeal in a collateral proceeding at law. ruled against appellant. The instruction re- 2. EVIDENCE 83(7)-PRESUMPTION OF OFquired the jury to find, before finding for respondent, that appellant was guilty of acts constituting positive negligence in leaving the wires uninsulated, and then required a finding that this negligence was the cause of the injury. Numerous other instructions, given at the instance of respondent and appellant and on the court's own motion, ring all the changes on the subject of contributory negligence. Not every omission of a reference to contributory negligence renders erroneous an instruction for a plaintiff. Owens v. Ry. Co., 95 Mo. loc. cit. 180, 181, 8 S. W. 350, 6 Am. St. Rep. 89. The instruction criticized might have been improved in this respect, but the principle referred to shows there was no prejudicial error. The question whether there was any substantial evidence of contributory negligence, the age of the child being considered, is a serious one, but, in view of the fact that appellant had the advantage of having the issue submitted, it need

not be discussed.

[6, 7] VII. The verdict was for $7,500. As a result of the injuries, one of respondent's arms was amputated below the elbow. His other hand is almost useless, the fingers being burned and drawn. He suffered other serious burns on the body. It is unnecessary to cite authorities to show that the judgment is far below the amount which the facts would have warranted. The objection to argument of counsel said to affect the amount of recovery must, in view of the result, be held unprejudicial.

The only other exception to argument properly preserved was taken to this statement: "Don't encourage these wealthy, greedy corporations to justify that which cannot compensate this boy simply according to law and according to your duty to the law." This is probably incorrectly reported, but we must deal with it as presented. That this incoherent and meaningless sentence could have "distracted the minds of the jury from a calm deliberation of facts," as counsel argue, is beyond comprehension. Other portions of the argument for respondent are shown to contain an express disclaimer that anything was asked because appellant was a corporation or because of anything save the law and the evidence. Appellant was not prejudiced. The judgment is affirmed. All concur, except BOND, P. J., absent.

der a sheriff's deed resulting from sale on ex-
In suit to quiet title, defendant claiming un-
ecution in another action, the court is not war
ranted in treating, as void, the judgment in the
prior action without evidence indicating that
the sheriff and trial court violated the plain pro-
visions of Rev. St. 1909, § 2316, subd. 3, as to
the filing of proper abstract of attachment.
4. JUDGMENT 495(2)-COLLATERAL ATTACK

-VALIDITY-PRESUMPTION.

In such action to quiet title, in the absence of any evidence it will be presumed that there were no tenants occupying the land when execution was issued, or the sheriff would have notified them, as required by Rev. St. 1909, § 2316, subd. 3.

5. ATTACHMENT

111-AFFIDAVIT

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NON

RESIDENCY-STATUTE. An affidavit for attachment of realty, stating, "Affiant has good reason to believe, and does believe, that the defendant is not a resident of the state of Missouri," conforms strictly to the requirements of Rev. St. 1909, §§ 2294, 2299, providing when plaintiff may have attachment and as to the form of affidavit, and was sufficient, under section 1770, as to orders of publication. 6. JUDGMENT 495(2)-COLLATERAL ATTACK -AFFIDAVIT FOR ATTACHMENT.

In an action to quiet title constituting a collateral attack on a sheriff's deed resulting from sale on execution in a prior action, the court would not be warranted in holding affidavit for attachment in the prior action void because sworn to August 3d, but not filed with the petition until October 4th.

7. NAMES 18-IDENTITY OF GRANTEE AND PLAINTIFF-SUFFICIENCY OF EVIDENCE.

In an action to quiet title constituting collateral attack on defendant's sheriff's deed resulting from sale on execution in defendant's dence held to justify finding that plaintiff, E. husband's prior action against plaintiff, eviW. Elrod, and the Ed Elrod named in defendant's husband's deed were one and the same per

son.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge. Action to quiet title by E. W. Elrod against J. A. Carroll. From a judgment for defendant, plaintiff appeals. Affirmed. On May 9, 1914, plaintiff filed in the circuit court of Texas county, Mo., a petition against defendant, to quiet title to about 72 acres of land in said county, described in petition. Defendant denies ownership in plaintiff, and alleges that she is the owner

II. It is insisted by appellant that the sheriff's return under the writ of attachment issued in the case of Carroll v. Elrod is void for two reasons: First, because it does not show upon its face that an abstract of the attachment was filed in the office of the recorder of deeds, in and for Texas county, Mo., as required by section 2316, R. S. 1909; second, because it does not appear from said return that there was no actual tenant on said land, nor that the tenant was served with the notice called for in above section, if he was living upon said real estate. We will consider the above contentions in the order presented.

of the land in controversy. The case was 196 S. W. loc. cit. 1146; City of St. Louis tried before the court without a jury and v. Parker-Washington Co., 196 S. W. loc. without instructions. It appears from the cit. 770. evidence, that Wm. F. Carroll, the husband of defendant, was the owner of said land; that about the summer of 1911, plaintiff, a resident of the state of Kansas, traded an automobile to him for above land; that said Wm. F. Carroll and defendant, his wife, on July 21, 1911, conveyed said land, by warranty deed, to plaintiff. It is conceded that, unless the plaintiff has lost his title to said land by the execution sale hereafter mentioned, he is still the owner thereof. In the above trade between plaintiff and Wm. F. Carroll, the latter claimed to have been defrauded, and brought suit by attachment against this plaintiff under the name of Ed Elrod, in the circuit court aforesaid, for damages alleged to have been sustained by him on account of plaintiff's conduct. Service was obtained by an order of publication against Ed Elrod, as a nonresident of Missouri. No appearance was entered by the defendant therein. The property in controversy was attached, and on June 21, 1913,

1. Is the return of the sheriff upon the writ of attachment void in this collateral proceeding because it fails to allege upon its face that an abstract of attachment was filed, as above required? Paragraph 3 of section 2316, supra, among other things, provides that the sheriff—

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*

shall also file in the recorder's office

*

[2] It is evident from the most casual reading of the above quotation that the sheriff is expected to make out and file with the recorder, as his abstract of attachment, a sepa

a judgment in rem was rendered against of the county where the real estate is situated an abstract of the attachment, showing the said defendant, on the constructive service names of the parties to the suit, and the amount aforesaid, for $465 debt and $16.55 damag- of the debt, the date of the levy, and a descripes. Special execution was issued on said tion of the real estate levied on by the same, which shall be duly recorded in the land records judgment, and the land aforesaid sold and the recording paid for by the officer, and thereunder to defendant herein, as the prop-charged and collected as other costs. erty of this plaintiff, for the sum of $50, and a sheriff's deed made to her therefor. The defendant claims title under her sheriff's deed. The real controversy herein hinges upon the validity of the Carroll judg-rate instrument from the writ of attachment. ment against Ed Elrod and the sale made thereunder. On November 14, 1914, the trial court found the issues for defendant as to the west half of lots 8 and 9 of the northwest quarter of section 4, township 29, range 7 west, and found for plaintiff as to the remainder of the land in controversy. Judgment was entered in accordance with above findings. Plaintiff filed a motion for a new trial, which was overruled, and the cause appealed by him to this court. Such other facts as may be necessary will be considered in the opinion.

Barton & Impey, of Houston, for appellant. William F. Carroll, of Raymondville, for respondent.

RAILEY, C. (after stating the facts as above). [1] I. This case was tried by the court without a jury and without instructions. If the judgment of the trial court is sustained by substantial evidence, it is binding upon us, in this collateral proceeding at law. Minor v. Burton, 228 Mo. loc. cit. 564, 128 S. W. 964; Slicer v. Owens, 241 Mo. loc. cit. 323, 145 S. W. 428; Abeles v. Pillman, 261 Mo. loc. cit. 376, 168 S. W. 1180; Buford v. Moore, 177 S. W. loc. cit. 872; Kille v. Gooch, 184 S. W. loc. cit. 1160; Truitt v.

While the appellant, in the case before us, offered in evidence the petition, affidavit, writ of attachment, return thereon, the order of publication, certificate of publication, and the judgment in the case of Carroll v. Elrod, yet he offered no evidence to the effect that an abstract of attachment had not been filed, said, nor was any evidence produced by him as required by law, with the recorder aforeto show that a copy of the abstract of attachment was not on file with the other papers in the above case, with the return of the sheriff thereon. The law required the sheriff to file the abstract aforesaid, and the trial court, in the absence of evidence to the contrary, had the right to presume that the sheriff had performed his duty in respect to above matter. The writ of attachment is in proper form, and the return of the sheriff thereon shows that he served said writ, by seizing and attaching all the right, title, interest, and claim of defendant, Ed Elrod, in and to the real estate in controversy. The Carroll judgment on its face purports to be a suit on attachment. It concludes by awarding the plaintiff therein execution against the property and effects attached in this suit."

*

[3] We are not warranted, in this collateral

aforesaid, without evidence indicating that the sheriff and trial court violated the plain provisions of the statute supra in regard to the filing of a proper abstract of attachment. Wilson v. Wilson, 255 Mo. loc. cit. 536, 537, 164 S. W. 561; Spicer v. Spicer, 249 Mo. loc. cit. 598, 599, 155 S. W. 832, Ann. Cas. 1914D, 238; Thompson v. Pinnell, 237 Mo. loc. cit. 552, 553, 141 S. W. 605; Desloge v. Tucker, 196 Mo. loc. cit. 601, 94 S. W. 283; Cox v. Boyce, 152 Mo. loc. cit. 582, 54 S. W. 467, 75 Am. St. Rep. 483; Macey v. Stark, 116 Mo. loc cit. 494, 21 S. W. 1088; Williams v. Mitchell, 112 Mo. loc. cit. 308, 309, 20 S. W. 649.

[4] 2. Was the court without jurisdiction to render the judgment in Carroll v. Elrod because it did not appear from the sheriff's return on the writ of attachment that there was no tenant on the land, or, if a tenant was residing thereon, that he was served with notice of the attachment? Subdivision 3 of section 2316, R. S. 1909, provides that:

* *

The officer shall moreover give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state the fact of such notice and the names of the tenants in his return." (Italics ours.)

There was no evidence offered at the trial, indicating that any tenants occupied the land in controversy. In the absence of any evidence on the subject, it will be presumed in this proceeding that there were no tenants occupying said land, or the sheriff would have notified them as required by law. See authorities cited in the preceding proposition. In view of the foregoing, we rule that the trial court was justified in finding that a proper abstract of attachment was filed, and

that there was no tenant on the land in controversy.

[5] III. The sufficiency of the affidavit for attachment in Carroll v. Ed Elrod is challenged, on the ground that it merely states: "Affiant has good reason to believe, and does believe, that the defendant is not a resident of the state of Missouri"

-instead of alleging that defendant was a nonresident of Missouri. The language of the affidavit is in strict conformity to the requirements of sections 2294, 2299, R. S. 1909, and is likewise sufficient under the provisions of section 1770, R. S. 1909. Allen v. Ray, 96 Mo. loc. cit. 545, 10 S. W. 153; Tufts v. Volkening, 122 Mo. 631, 27 S. W. 522; Huiskamp v. Miller, 220 Mo. loc. cit. 147, 119 S. W. 633; Keaton v. Jorndt, 220 Mo. loc. cit. 131, 119 S. W. 629; Hambel v. Lowry, 264 Mo. loc. cit. 174, 174 S. W. 405. The affidavit as to the nonresidency of defendant, Ed Elrod, substantially complied with the provisions of our statute. In addition to the foregoing, Wm. F. Carroll, in the present trial, testified as follows:

"At the time I drew the petition and affidavit in the case of Ed Elrod or Eddy Elrod he was a nonresident of the state of Missouri, living in Kansas, and has lived there ever since, and

This evidence is uncontradicted by anything in the record. The action of the trial court in holding the above affidavit sufficient as to the nonresidency of said defendant is fully justified by the facts before us.

[6] IV. The sufficiency of foregoing affidavit is also challenged on the ground that it was sworn to on August 3, 1912, and was filed with the petition on October 4, 1912. The delay in filing the papers was occasioned by a controversy which arose between Carroll and the circuit clerk. The undisputed evidence, as shown in the preceding proposition, indicates that Ed Elrod was a nonresident during the whole of above period. Aside from the foregoing, we would not be warranted, under the rulings of this court in a collateral proceeding in holding the affidavit void on account of the lapse of time between the execution and filing of same. Avery v. Good, 114 Mo. loc. cit. 295, 21 S. W. 815. The above contention is without merit, and is ruled against appellant. We are of the opinion that the affidavit in controversy is sufficient under the law.

[7] V. On July 21, 1911, Wm. F. Carroll and wife conveyed the land in controversy to E. W. Elrod. The suit of Carroll v. Ed Elrod was filed October 4, 1912. W. F. Carroll testified that he sent the deed to Ed Elrod in Kansas, and that the latter inserted the words "E. W. Elrod" as grantee therein. He testified that:

"His name was Ed Elrod."

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The trial court was justified in finding that E. W. Elrod and Ed Elrod were one and the same person, and this finding is conclusive in this proceeding, under the authorities cited in proposition I supra. The order of publication not only ran against Ed Elrod, the real owner of the land in controversy, but it described the land which he had bought from Carroll. We are of the opinion that the judgment rendered in the case of Carroll v. Ed Elrod, is valid, and that the sheriff's deed made to defendant passed the title formerly held by E. W. Elrod.

VI. We have considered the other questions discussed by counsel for appellant, but do not deem them of sufficient importance to extend this opinion further. The trial court found the issues in favor of defendant as to the west half of lots 8 and 9 of the northwest quarter of section 4, township 29 of range 7 west, in Texas county, Mo., and found for plaintiff as to the remainder of the land in controversy. As no appeal was taken by defendant, the judgment of the trial court is hereby affirmed.

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