followed rule in Missouri

1973Robb v. Stone, 120 Mo. 428 , 25 S.W. 376 , 23 L.R.A. 194 , 41 Am.St.Rep. 705 .

1973Robb v. Stone, 120 Mo. 428 , 25 S.W. 376 , 23 L.R.A. 194 , 41 Am.St.Rep. 705 .

1991In Hight v. State, 813 S.W.2d 368 (Mo.App.1991), this court followed the principle announced in Luleff by remanding a case in which an unverified amended motion was filed and in which there was no evidentiary hearing.

1991This Court followed the rule enunciated in Duncan in State v. Maggitt, 517 S.W.2d 105, 107 (Mo.banc 1974), and most recently reiterated the rule in State v. Buckles, 636 S.W.2d 914 (Mo.banc 1982): On the issue of self-defense there can be no doubt of the rule that evidence of the deceased’s reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed; but such evidence must be proved by general reputation testimony, not specific acts of violence, and defendant must show he knew of such reputation when the

1991This Court followed the rule enunciated in Duncan in State v. Maggitt, 517 S.W.2d 105, 107 (Mo.banc 1974), and most recently reiterated the rule in State v. Buckles, 636 S.W.2d 914 (Mo.banc 1982): On the issue of self-defense there can be no doubt of the rule that evidence of the deceased's reputation for turbulence and violence is admissible as relevant to show who was the aggressor and whether a reasonable apprehension of danger existed; but such evidence must be proved by general reputation testimony, not specific acts of violence, and defendant must show he knew of such reputation when the

1972In State v. Reed, supra, this court followed the rule set forth in State v. Reese, supra, and held that the evidence of the June 14th sale fell within the general exclusionary rule and not within any excep *89 tion thereto.

1960Thus, unlike in some states where the state has retained full ownership of submerged lands and in which the riparian proprietor owns only to the high water mark (see Payne v. Hall, 192 Iowa 780 , 185 N.W. 912 ; Hume v. Rogue River Packing Co., 51 Or. 237 , 83 P. 391 , 92 P. 1065 , 31 L.R.A.,N.S., 396, 131 Am.St.

1960Thus, unlike in some states whére the state has retained full ownership of submerged lands and in which the riparian proprietor owns only to the high water mark (see Payne v. Hall, 192 Iowa 780 , 185 N.W. 912 ; Hume v. Rogue River Packing Co., 51 Or. 237 , 83 P. 391 , 92 P. 1065 , 31 L.R.A.,N.S., 396, 131 Am.St.

1960Thus, unlike in some states whére the state has retained full ownership of submerged lands and in which the riparian proprietor owns only to the high water mark (see Payne v. Hall, 192 Iowa 780 , 185 N.W. 912 ; Hume v. Rogue River Packing Co., 51 Or. 237 , 83 P. 391 , 92 P. 1065 , 31 L.R.A.,N.S., 396, 131 Am.St.

1960Thus, unlike in some states whére the state has retained full ownership of submerged lands and in which the riparian proprietor owns only to the high water mark (see Payne v. Hall, 192 Iowa 780 , 185 N.W. 912 ; Hume v. Rogue River Packing Co., 51 Or. 237 , 83 P. 391 , 92 P. 1065 , 31 L.R.A.,N.S., 396, 131 Am.St.

1960But in Cooley v. Golden, 117 Mo. 33 , 23 S.W. 100 , 21 L.R.A. 300 , “this court followed the rule laid down in Benson v. Morrow, 61 Mo. [345] 347,—that the riparian owner only owns to low-water mark, and that the title to the land constituting the bed of the Missouri or other navigable river is in the state, * * McBaine v. Johnson, 155 Mo. 191 , 55 S.W. 1031, 1034 .

1960But in Cooley v. Golden, 117 Mo. 33 , 23 S.W. 100 , 21 L.R.A. 300 , “this court followed the rule laid down in Benson v. Morrow, 61 Mo. [345] 347,—that the riparian owner only owns to low-water mark, and that the title to the land constituting the bed of the Missouri or other navigable river is in the state, * * McBaine v. Johnson, 155 Mo. 191 , 55 S.W. 1031, 1034 .

1960But in Cooley v. Golden, 117 Mo. 33 , 23 S.W. 100 , 21 L.R.A. 300 , “this court followed the rule laid down in Benson v. Morrow, 61 Mo. [345] 347,—that the riparian owner only owns to low-water mark, and that the title to the land constituting the bed of the Missouri or other navigable river is in the state, * * McBaine v. Johnson, 155 Mo. 191 , 55 S.W. 1031, 1034 .

1960But in Cooley v. Golden, 117 Mo. 33 , 23 S.W. 100 , 21 L.R.A. 300 , “this court followed the rule laid down in Benson v. Morrow, 61 Mo. [345] 347,—that the riparian owner only owns to low-water mark, and that the title to the land constituting the bed of the Missouri or other navigable river is in the state, * * McBaine v. Johnson, 155 Mo. 191 , 55 S.W. 1031, 1034 .

1932In Hecker v. Bleish, 327 Mo. 377 , 37 S. W. (2d) 447 , this court followed that rule and quoted that language of the McLure case, that all matters were concluded in the former appeal, “and, having become res adjudáowta cannot be reopened on this appeal.” In Stump v. Hornback, 109 Mo. l. c. 277, 18 S. W. 37 , after stating that the directions to enter particular judgment on the former appeal the trial court had no power to enter any other or to consider or determine any other matter, and added: “All other matters become res adjudicata, and could not be reopened. ’ ’ That case was cited in the M

1932Similar positive expressions by this court in Chouteau v. Allen, 74 Mo. l. c. 59, where it is said to be “out of the power of the lower court to open the cause and have a new trial.” *1131 Shroyer v. Nickell, supra, was an action in ejectment.

1929The only case we find in which the Kansas City Court of Appeals has noted the point in issue is that of Chambers v. Hines, 208 Mo. App. 222 , 233 S.W. 949 , in which this court followed the rule laid down in the foregoing cases without discussion.

1929The only case we find in which the Kansas City Court of Appeals has noted the point in issue is that of Chambers v. Hines, 208 Mo. App. 222 , 233 S.W. 949 , in which this court followed the rule laid down in the foregoing cases without discussion.

1928It is true, as contended by plaintiff, that a cause of action for treble damages is a wholly different cause of action from one in trover for single damages. [Holliday v. Jackson, 21 Mo. App. 660 ; King v. Furnace Company, 190 S. W. 368 .] In the latter case this court followed the rule that a plaintiff cannot sue on one cause of action and recover on another, and that where plaintiff has sued on a penal statute, giving treble damages, and is allowed to recover on a common-law action for conversion, the judgment will not stand.

1926If we examine the six covenants required of the defendants by the contract in question, it is readily apparent that there could he a breach of one or more of them without in effect damaging the plaintiff more than merely nominally, yet under the ruling of the trial court the plaintiff, upon such a breach, would be entitled to the sum of $300 as liquidated damages. ' We are of the opinion, and so rule, that the provision in question should be treated as a penalty and not as 'liquidated damages. [See Boulware v. Crohn, 122 Mo. App. 571 , 99 S. W. 796 , and cases therein cited.] ” In that case th

1926If we examine the six covenants required of the defendants by the contract in question, it is readily apparent that there could he a breach of one or more of them without in effect damaging the plaintiff more than merely nominally, yet under the ruling of the trial court the plaintiff, upon such a breach, would be entitled to the sum of $300 as liquidated damages. ' We are of the opinion, and so rule, that the provision in question should be treated as a penalty and not as 'liquidated damages. [See Boulware v. Crohn, 122 Mo. App. 571 , 99 S. W. 796 , and cases therein cited.] ” In that case th

1926It is universally held that where, as in this case, an agreement contains several stipulations of various degrees of importance, and the breaches of some would be *483 attended with losses difficult to be estimated, and in others the damages would be of easy calculation, the sum specified in the agreement as the amount of damages for the breach of any particular stipulation will be construed as a penalty, and not as liquidated damages, even though the parties in express terms have declared the contrary.” It is the tendency and preference of the law to regard such a stipulation as the one provo

1926If we examine the six covenants required of the defendants by the contract in question, it is readily apparent that there could he a breach of one or more of them without in effect damaging the plaintiff more than merely nominally, yet under the ruling of the trial court the plaintiff, upon such a breach, would be entitled to the sum of $300 as liquidated damages. ' We are of the opinion, and so rule, that the provision in question should be treated as a penalty and not as 'liquidated damages. [See Boulware v. Crohn, 122 Mo. App. 571 , 99 S. W. 796 , and cases therein cited.] ” In that case th

1924Co. v. Davidson, 211 Mo. App. 664, 667 , this court held: *120 “The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter of the cause of action, its jurisdiction cannot be impeached in a collateral proceeding for errors or mere irregularities.” [Citing Colvin v. Six, 79 Mo. —; Hardin v. Lee, 51 Mo. 241 ; Merrick v. Merrick, 5 Mo. App. 123 .] In that opinion this court followed the rule declared in Fitzgerald v. Road District, 195 S. W. 695 , 697, a case decided by the Supreme Court, as follows: ci Where the court had jurisdiction o

1924Wirt v. Cass Co., 137 Mo. App. 698, 708 , 119 S. W. 110 ; Halter v. Leonard, 223 Mo. 286 , 122 S. W. 706 .] The answer does not deny that the proceedings in the circuit court of Carroll County were known to Scott.

1924Co. v. Davidson, 211 Mo. App. 664, 667 , this court held: *120 “The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter of the cause of action, its jurisdiction cannot be impeached in a collateral proceeding for errors or mere irregularities.” [Citing Colvin v. Six, 79 Mo. —; Hardin v. Lee, 51 Mo. 241 ; Merrick v. Merrick, 5 Mo. App. 123 .] In that opinion this court followed the rule declared in Fitzgerald v. Road District, 195 S. W. 695 , 697, a case decided by the Supreme Court, as follows: ci Where the court had jurisdiction o

1924Co. v. Davidson, 211 Mo. App. 664, 667 , this court held: *120 “The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter of the cause of action, its jurisdiction cannot be impeached in a collateral proceeding for errors or mere irregularities.” [Citing Colvin v. Six, 79 Mo. —; Hardin v. Lee, 51 Mo. 241 ; Merrick v. Merrick, 5 Mo. App. 123 .] In that opinion this court followed the rule declared in Fitzgerald v. Road District, 195 S. W. 695 , 697, a case decided by the Supreme Court, as follows: ci Where the court had jurisdiction o

1924Co. v. Davidson, 211 Mo. App. 664, 667 , this court held: *120 “The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter of the cause of action, its jurisdiction cannot be impeached in a collateral proceeding for errors or mere irregularities.” [Citing Colvin v. Six, 79 Mo. —; Hardin v. Lee, 51 Mo. 241 ; Merrick v. Merrick, 5 Mo. App. 123 .] In that opinion this court followed the rule declared in Fitzgerald v. Road District, 195 S. W. 695 , 697, a case decided by the Supreme Court, as follows: ci Where the court had jurisdiction o

1924This court followed the rule as laid down by the Supreme Court in cases heretofore quoted in the cases of Lyter v. Hines, 205 Mo. App. 429 , 224 S. W. 841 , and Langley v. Hines, 207 Mo. App. 587 , 227 S. W. 877 , and Morrow v. Hines, 233 S. W. 493 .

1924This court followed the rule as laid down by the Supreme Court in cases heretofore quoted in the cases of Lyter v. Hines, 205 Mo. App. 429 , 224 S. W. 841 , and Langley v. Hines, 207 Mo. App. 587 , 227 S. W. 877 , and Morrow v. Hines, 233 S. W. 493 .

1924This court followed the rule as laid down by the Supreme Court in cases heretofore quoted in the cases of Lyter v. Hines, 205 Mo. App. 429 , 224 S. W. 841 , and Langley v. Hines, 207 Mo. App. 587 , 227 S. W. 877 , and Morrow v. Hines, 233 S. W. 493 .

1924This court followed the rule as laid down by the Supreme Court in cases heretofore quoted in the cases of Lyter v. Hines, 205 Mo. App. 429 , 224 S. W. 841 , and Langley v. Hines, 207 Mo. App. 587 , 227 S. W. 877 , and Morrow v. Hines, 233 S. W. 493 .

1924Wirt v. Cass Co., 137 Mo. App. 698, 708 , 119 S. W. 110 ; Halter v. Leonard, 223 Mo. 286 , 122 S. W. 706 .] The answer does not deny that the proceedings in the circuit court of Carroll County were known to Scott.

1924Co. v. Davidson, 211 Mo. App. 664, 667 , this court held: *120 “The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter of the cause of action, its jurisdiction cannot be impeached in a collateral proceeding for errors or mere irregularities.” [Citing Colvin v. Six, 79 Mo. —; Hardin v. Lee, 51 Mo. 241 ; Merrick v. Merrick, 5 Mo. App. 123 .] In that opinion this court followed the rule declared in Fitzgerald v. Road District, 195 S. W. 695 , 697, a case decided by the Supreme Court, as follows: ci Where the court had jurisdiction o

1924Wirt v. Cass Co., 137 Mo. App. 698, 708 , 119 S. W. 110 ; Halter v. Leonard, 223 Mo. 286 , 122 S. W. 706 .] The answer does not deny that the proceedings in the circuit court of Carroll County were known to Scott.

1924Wirt v. Cass Co., 137 Mo. App. 698, 708 , 119 S. W. 110 ; Halter v. Leonard, 223 Mo. 286 , 122 S. W. 706 .] The answer does not deny that the proceedings in the circuit court of Carroll County were known to Scott.

1923In that case this court followed the rule of law announced in Hiles v. Fisher, 144 N.Y. 306 , and Buttlar v. Rossenblath, 42 N.J. 651 .

1902In Paddock v. Railroad, 155 Mo. l. c. 537, this court followed the rule laid down by tbe Supreme Court of the United States in Railroad v. Ellis, 165 U. S. 150 , that a statute which authorized a recovery of an attorney’s fee against a defendant if the plaintiff recovers, and does not allow an attorneys’ fee against the plaintiff in case the defendant succeeds in the case, was in conflict with the fifth amendment to the Constitution of the.

1889The Indiana statute is not essentially different from the statute of this state, and in Heuston v. Simpson, 115 Ind. 62 , the court followed the rule of the court of appeals of New York in a testamentary case.