42 S.W. 1081 (Mo. 1897), Deboth v. Rich Hill Coal & Mining Co.

Citation:42 S.W. 1081, 141 Mo. 497
Opinion Judge:Burgess, J.
Party Name:DeBoth, Plaintiff in Error, v. Rich Hill Coal & Mining Company
Attorney:W. O. Jackson and Graves & Clark for plaintiff in error. R. T. Railey for defendant in error.
Judge Panel:Burgess, J. Gantt, P. J., and Sherwood, J., concur.
Case Date:November 23, 1897
Court:Supreme Court of Missouri
 
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Page 1081

42 S.W. 1081 (Mo. 1897)

141 Mo. 497

DeBoth, Plaintiff in Error,

v.

Rich Hill Coal & Mining Company

Supreme Court of Missouri, Second Division

November 23, 1897

Error to Cass Circuit Court. -- Hon. W. W. Wood, Judge.

Affirmed.

W. O. Jackson and Graves & Clark for plaintiff in error.

(1) The proviso in section 7074, as amended by acts of 1891, pages 182, 183, limiting the time in which such action shall be brought, is unconstitutional and void, for the reason that such is not within the purview of the title of the act, and not germane to the subject-matter of the act, and is beyond the amendment stated in the first section or enacting clause of the act, which says what amendment shall be made to said section. Acts of 1891, p. 182; Const. of Mo., art. IV., sec. 34. (2) It is unconstitutional for the further reason that the subject contained in this proviso, that is the subject of limitations of rights of action, is not clearly expressed in the title to the act of 1891. In fact, is not expressed therein at all. Const. of Mo., art. IV., sec. 28; Sutherland on Stat. Const., sec. 102, and cases cited. (3) The matter contained in this proviso is not germane to the subject being legislated upon, and contemplated by the title of the act, and is therefore unconstitutional and void. Ewing v. Hoblitzelle, 85 Mo. 71; State ex rel. v. Co. Court, 41 Mo. 39; Kansas City v. Payne, 71 Mo. 159. (4) The title of the act contained nothing to indicate that a statute of limitations was going to be passed, and the proviso is therefore void. (5) We contend further that upon the institution of the first suit, May 7, 1894, the statute ceased to run, and the time from that date to December 6, 1894, the date of its dismissal, can not be counted. Statutes of limitation do not run while the suit is pending. 13 Am. and Eng. Ency. of Law, p. 745; Primo v. Lee, 56 Vt. 60; Coffin v. Cattle, 16 Pick. 386.

R. T. Railey for defendant in error.

(1) Plaintiff's petition fails to state a cause of action, because the date of injury was in June, 1893, and the present suit was not brought until December 12, 1894. Sess. Acts 1891, p. 183; R. S. 1889, secs. 2084, 4425, 4429 and 6791; Kennedy v. Burrier, 36 Mo. 128; Barker v. Railroad, 91 Mo. 94; Sparks v. Railroad, 31 Mo.App. 114; Dulaney v. Railroad, 21 Mo.App. 599; Wood on Lim. of Actions, sec. 9, p. 28; Hesse v. Ins. Co., 21 Mo. 95. (2) If the title to the original act is sufficient to embrace the provisions of the amendment, then the latter will be held good, and it is immaterial whether the title to the amendatory act be sufficient or not. St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 526; State ex rel. v. Ranson, 73 Mo. 88; State ex rel. v. Miller, 100 Mo. 444; Brandon v. State, 16 Ind. 197. (3) The title and body of the act should be considered together. Ins. Co. v. Albert, 39 Mo. 183; Dart v. Bagley, 110 Mo. 51; State ex rel. v. Slover, 134 Mo. 17; 1 Kent, Com., p. 461. (4) Details of legislation, fairly germane to the general subject of an act, need not be specially mentioned in the title. State ex rel. v. Co. Ct., 102 Mo. 537; State ex rel. v. Ranson, 73 Mo. 88; State v. Mathews, 44 Mo. 526; State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Blackstone, 115 Mo. 427; State v. Bennett, 102 Mo. 364; Lynch v. Murphy, 119 Mo. 169; State ex rel. v. Bronson,...

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