count are these: Plaintiffs say the defendant charged them with $118.42, general and special taxes on the premises for the year 1900, and deducted that sum from the rents, when in truth he had paid said taxes, as executor, out of the general assets of the estate, and taken credit for the payment in his final settlement as executor. If this was true, and the defendant was allowed to deduct the sum paid for taxes from the rents collected, he would receive two credits for the same disbursement. The latter credit would be erroneous, because he paid the taxes out of the assets in his hands as executor, and not out of the rents collected as agent for the two daughters. Defendant retained $200 out of the rents collected, for which sum he gave himself credit in his statement, designating it as compensation for "fees, advice, and services." The plaintiffs contest this credit, asserting that they never employed the defendant to give advice or render any services, except as executor, and for which he would be paid by his commission as executor. It is to be remembered that this is not a controversy over a settlement in the probate court, but over a private account between the plaintiffs and the defendant as their agent. The defendant is in the fire insurance business, and is secretary of the Odd Fellows Hall Company; but he testified that he was familiar with the law, and especially with probate practice. The advice he gave, as stated by himself, was of a business nature-instructing the two daughters how to manage their affairs after their father died. He swore they were very ignorant of business, and begged him to take charge of their affairs, promising to pay him reasonable compensation. The deceased father of the plaintiffs left two sons, who were practically disinherited in favor of the daughters, and this circumstance engendered a great deal of family bitterness. The defendant said he gave the daughters advice about their disputes with their brothers, about the title to a bond left by their mother, and about a case in the police court growing out of an assault and battery committed by the brothers on the sisters. In short, the advice for which he claimed compensation was instruction regarding business matters and family troubles. The services for which he claimed payment and the right to retain the $200 were helping the daughters find a house to live in, driving them around in his buggy while looking for a house, buying a cooking range for them, getting an asbestos back for the range, and similar matters; we cannot recite them all. The third item in dispute is the sum of $104.73 retained by defendant as commission on the rents collected by him; that is, 5 per cent. of the amount collected. The contention of the plaintiffs was that he had no right to retain that sum, or all of it, as he acted against their will in collecting the rents during the second year, and agreed to do so gratuitously. The answer accords with the above statement. It alleges that Caroline Werckmann and Rose L. Downey, on account of their ignorance of business matters and methods, employed the defendant to give them advice and look after their affairs, promising him liberal compensation, and that the services and advice of the defendant were reasonably worth $200. Another paragraph of the answer pleads that on January 27, 1902, defendant rendered an account to his two principals or clients, showing the amount of rents collected, his charges in the way of commission and for advice and services; and that they assented to the compensation he had credited himself with, and said his account was perfectly satisfactory, after they had gone over the same item by item. Besides those defenses, the answer pleaded two counterclaims, one against each of the daughters for the sum of $24.30. These counterclaims were founded on an allegation that on January 27, 1902, when the supposed account stated was rendered and assented to, defendant paid each of his principals the sum of $569.10 for the balance due as her undivided half interest in the rents collected by the defendant, whereas the true balance going to each principal was $554.80; that the excess of $24.30 was paid by mistake. Judgment was prayed for it. In support of the counterclaim, the defendant testified that he was in the habit of giving the women small sums of money, ranging from five to twenty dollars, whenever they asked for it, and, having failed to keep an accurate acI count of the sums thus paid at different dates, he inadvertently overpaid them in the final settlement of accounts. The case was tried without a jury. At the conclusion of the evidence the court passed on certain declarations of law, and rendered judgment for the plaintiffs for the $200 retained by the defendant as commissions for his advice and services, but disallowed their demand for the sum retained by him as commissions on the rent collected and the sum they alleged he had credited himself with twice, once as executor and once in his private capacity. The court found against the defendant on the two counterclaims. Complaint is made of the mode of procedure followed in disposing of the counterclaims. The first judgment in the case was entered June 11, 1904. By mistake the court made no finding and entered no judgment on the counterclaims that day. Motions for new trial and in arrest of judgment were filed by the defendant, which were overruled July 5, 1904. On July 20, 1904, the defendant filed his affidavit for an appeal to this court, and on that day the court granted the appeal. Afterwards, on August 9, 1904, during the same term, the circuit court set aside its order granting an appeal, and entered judgment in plaintiffs' favor on the counterclaims. To this ruling the defendant at the time objected and excepted. Thereafter, on August 9, 1904, the circuit court again entered an order granting the defendant an appeal to this court. The controversy on this appeal is confined to the item of $200 retained by the defendant as pay for his advice and services, because that was the only item on which the court below ruled against the defendant (appellant). There was a square conflict of testimony as to whether the defendant was employed by the two women to give advice or render services in connection with their affairs. The women contended that defendant was not engaged to collect their rents, and was entitled to no commission on the collection, at least for the second year. This issue the court decided against them. But as to defendant's right to compensation for services and advice he found in their favor, and, as the testimony was contradictory, the finding must be accepted as settling the facts. The court gave two declarations of law bearing on that part of the case. One declara tion was that, in order for the defendant to maintain his claim, it must appear the plaintiffs employed him to give advice and render services, and that, pursuant to such employment, the defendant gave advice and rendered services reasonably worth $200. The other declaration dealt with the stated account alleged to have been rendered by the defendant to the two women and approved by them. The court declared that if the defendant called at the plaintiffs' residence for the purpose of settling his account, and submitted the account offered in evidence, and if plaintiffs and defendant went over said account, and plaintiff's knew defendant had charged them for advice and services, and agreed that said charges were satisfactory and the account correct, then the plaintiffs were not entitled to recover, so far as that part of their demand was concerned. The latter instruction was given at defendant's instance, and, of course, he cannot complain of it. Besides, it is correct. The first one was given at the instance of the plaintiffs, and, we think, is sound law. The transcript of the judgment in this case shows a judgment in plaintiffs' favor for $200, entered June 7, 1904. The entry contains no reference to the counterclaims. It is recited in the defendant's abstract of the record that the court revoked the first order allowing an appeal to this court, and on August 9th entered judgment on the counterclaims. The contention of the defendant's counsel is that the court was without jurisdiction to do this, because, when it allowed the appeal, the jurisdiction of the cause vested at once in this court. This proposition is true in a sense, but not in the sense that the circuit court had no power to revoke an improvident order during the term at which it was made. The circuit court could do no act in the case so long as its order granting the appeal stood unrevoked. State v. Musick, 7 Mo. App. 597. But the court had pow er to set aside, during the term, the order al-lowing the appeal. Oberkoetter v. Luebbering, 4 Mo. App. 481. Doubtless this rule would be modified to the extent of not allow-ing such an order to be revoked if rights of third parties had attached meanwhile, conceding that such a thing can happen. The effect of granting an appeal on the jurisdiction of the court which makes the order is like the effect of granting a change of venueon the jurisdiction of the court which grants the change. An order for a change of venue confers jurisdiction on the court to which the case is sent. State v. Dusenberry, 112 Mo. 277, 20 S. W. 461. Nevertheless, the court which awards the change retains sufficient jurisdiction to revoke the order at the same term. State v. Webb, 74 Mo. 333; Colvin v. Six, 79 Mo. 198; State v. Bragg, 63 Mo. App: 22. There may be some theoretical difficulty about this rule, but it is established in this state. In State v. Webb the Supreme Court said the rule that, after a change of venue is granted, the jurisdiction of the cause is lost to the court awarding the change, is to be understood as prevailing only while the order for the change remains in force; that the awarding court has power to correct its: order for a new venue as much as it has power to correct any other order during the term when it is made. What, possibly, was an erroneous procedure in this matter, was not the revocation of the order allowing the appeal and entering judgment on the counterclaims, but failing to set aside the orig-inal judgment and enter a single judgment both on the plaintiffs' cause of action and on the counterclaims. There ought to be but one final judgment in a case. However, no ́error was assigned in relation to this point. The judgment is affirmed. All concur. BRADSHAW v. AMERICAN BENEVOLENT ASS'N. (St. Louis Court of Appeals. Missouri. May 2, 1905.) INSURANCE-SICK BENEFITS-DISABILITY-EVI DENCE. Plaintiff had an attack of neurasthenia,. but, though wholly incapacitated to attend to any business, and sometimes confined to his bed, was not bedridden, but, on the contrary, when at his worst he took trips away from home, on the advice of his physician, for his health. Held, that he was not entitled to recover sick benefit under a policy agreeing to pay an indemnity for sickness incapacitating plaintiff from transacting any and every kind of business, when, as a result thereof, he was entirely and continuously "confined in bed" and under the charge of a physician. Appeal from Circuit Court, Laclede County; Leigh B. Woodside, Judge. Action by Andrew W. Bradshaw against the American Benevolent Association. From a judgment for plaintiff, defendant appeals, Reversed. Edwin S. Puller, for appellant. J. W. Farris, for respondent. Opinion. GOODE, J. This is an action on a certificate of insurance-one of the "benevolent" variety. It was issued to the plaintiff November 16, 1900. Plaintiff was an editor of a newspaper, doing office duty only, and was insured in that capacity. The certificate promised insurance, for total disability due to accidental violence, at the rate of $25 a week, $600 indemnity for the loss of two limbs or both eyes, and $300 indemnity for the loss of one limb or one eye, and the following indemnities for illness: "After membership for ninety days without delinquency immediately prior to the beginning of sickness, should the member, by reason of sickness or disease, be wholly incapacitated from transacting any and every kind of work or business, and as a result thereof be entirely and continuously confined in bed and under the charge and subject to the personal calls of some regular qualified physician, the Association will pay said member as hereinafter provided for a period not exceeding thirty-two weeks following the first week's sickness so confined, as follows: "Weekly Sick Indemnity After First Week. "1st eight weeks, $9.00 per week. There is a death indemnity, too. This action is to recover indemnity for illness during 17 weeks between April and September, 1903. The contention is that during that time the plaintiff was wholly incapacitated by sickness and disease to perform any kind of business or work. The allegations of the petition are imperfect, but we need not concern ourselves with them, for the proof fails to establish a cause of action. Plaintiff had a nervous breakdown or attack of neurasthenia, extending over six months, and culminating in June, 1903. He was under the attention of a physician throughout his sickness, and, we think, was wholly incapacitated to attend to any business. He was never, even when at his worst, confined to the bed. It is true, he rested occasionally in bed during the daytime, but spent most of the hours of the day out of doors. In this he acted under the advice of his physician, who thought it was better for him to be in the open air than in the house. Plaintiff testified that during the month of June, when he was worse than at any other time, he went to St. Louis to consult Dr. Fry, and in May took a trip to Texas and remained 10 days, to be away from his business. He swore he was never confined to his bed constantly, but sometimes stayed in bed two or three days out of a week. It will be ob served that one of the conditions on which plaintiff would become entitled to indemnity for sickness was that he should be wholly incapacitated to do work, and, as another result of the sickness, be entirely and continuously confined to bed and under the personal charge of some physician. We would not, of course, hold that this clause meant that a patient must stay every minute in bed for his right to indemnity to accrue, but the manifest purpose of the policy was not to indemnify for loss of time due to sickness unless the patient was bedridden in a substantial sense. We suppose the purpose was to insure against such illness only as would keep the patient in bed, and thereby diminish the danger of claims founded on feigned or exaggerated illness. Now, to hold that a person who could take a trip to Texas, another to St. Louis, and who was able to be up and around when he chose, was confined to his bed, would be to ignore one clause of the policy. This class of insurance is often disappointing, because persons take it without reading the conditions of the certificate. As was said in Gainor v. St. Lawrence Life Ass'n (Sup.) 46 N. Y. Supp. 965, in construing a policy like this one, the insured did not seem to appreciate "the numerous safeguards and protections constituted by the policy for the benefit, not of the insured, but of the company, and which make any payments by it in most cases purely optional." A policy which does not provide for indemnity to the holder for time actually lost on account of illness, even though the insured is not compelled to keep his bed continuously, may be of very little value; but plaintiff accepted a contract of that character, and must stand or fall by its terms, interpreted according to 1. Under Rev. St. 1899, § 3436, providing that notice of garnishment, properly served, shall have the effect of attaching all personal property, etc., of the defendant in the garnishee's possession or charge or under his control at the time of the service of garnishment, etc., the service of a garnishment does not create a specific lien in favor of the plaintiff on money or property of the defendant in the hands of the garnishee, but only creates such a lien as entitles the plaintiff to hold the garnishee personally liable for such money or property or its value. 2. Under Rev. St. 1899, § 3451, providing that where the denial of a garnishee's answer is replied to the issues raised by the denial and reply are the sole issues to be tried, the sufficiency of the service of garnishment cannot be raised by the garnishee's answer, but only by a plea in abatement or motion to quash the officer's return of service. 3. A garnishee's answer alleging that she, having been summoned as garnishee, made answer to the interrogatories of plaintiffs as follows, etc., constituted a general appearance, and an admission that she had been summoned in a lawful manner and for a lawful purpose. 4. Where, in a garnishment proceeding, the garnishee's denial of indebtedness was put in issue, and plaintiffs claimed that the garnishee held money of the principal debtor for the purpose of concealing the same and hindering and delaying his creditors, a former judgment in an equity suit by plaintiffs against the garnishee and others, to set aside certain fraudulent transfers to the garnishee, in which it was determined that such transfers were fraudulent and made to defraud plaintiffs, was admissible in the garnishment proceedings on the issue of the garnishee's intent. 5. Such judgment was conclusive, as against the garnishee, that the conveyances attacked in such proceedings were made to defraud plaintiffs. 6. Where a judgment was revived against the administratrix of decedent on stipulations of the parties, which necessarily assumed and admitted that letters of administration had been granted, any error in the introduction of such letters in evidence in garnishment proceedings based on such judgment was immaterial. 7. Where instructions requested by appellant were based on the same theory as that adopted by respondents' instructions, appellant could not assert that respondents' instructions submitted the case on an erroneous theory. Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge. Action by Ernest C. Dodge and others against Mrs. Anna Knapp, garnishee of Ralph Hammond Pybus, alias Ralph Hammond Knapp. From a judgment for plaintiffs against the garnishee, she appeals. Affirmed. It appears from the evidence that Ralph Hammond Pybus, alias Ralph Hammond Knapp, inherited an estate of about $8,000 from his father, who died in England, and employed the respondents, a firm of attorneys at law, in the city of St. Louis, to recover the estate for him. After a prolonged Investigation by respondents, in 1900, Pybus went to England for the purpose of collecting his estate, and collected about $8,000, and sent his mother, the appellant, a draft for $5,400 or $5,500, which she appropriated to her own use. Pybus failed to pay respondents for their services, and they instituted suit against him in the circuit court of the city of St. Louis, and on October 31, 1902, recovered a judgment against him for $2,017. As is shown by the record, execution was issued and returned by the sheriff nulla bona. The return shows that, by order of plaintiffs in the execution, process of garnishment was served on appellant, Anna Knapp. On this return the suit of E. C. Dodge and T. E. Mulvihill against Anna Knapp, garnishee of Ralph Hammond Pybus, alias Ralph Hammond Knapp, was entered upon the docket of the circuit court and interrogatories in the nsual form were exhibited to the garnishee. Her answer to each interrogatory was, "No." Respondents filed a denial to the garnishee's answer, charging that said garnishee, Mrs. Anna Knapp, was indebted to the defendant in the execution, Ralph Hammond Knapp, in the sum of $5,000. This denial further charged that the defendant Knapp had been indebted to respondents since about October, 1900, and that this indebtedness was well known to the garnishee, his mother. That, through the professional services of the respondents, defendant, on or about May, 1902, came into the possession of a large estate, namely, $8.000, and, with the fraudulent intent of secreting his property and defeating the respondents' just claim, he transferred $5,000 to his mother without consideration, and that his mother had full knowledge of the purpose for which the transfer was made and participated in the fraudulent design of her son. The prayer was for judgment against the garnishee for the amount of their judgment previously recovered. The garnishee filed a reply to this denial, alleging, in substance, that the different properties transferred to her by Pybus, her son, were transferred in good faith, for a valuable consideration, and without any fraudulent purpose on either his or her part. The issues thus made were tried to a jury. who found that upon the 19th day of February, 1903 (the date of service of the garnishment), the garnishee had in her hands, belonging to Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, the sum of $3,000, and a judgment was rendered on the verdict requiring the garnishee to pay to the sheriff $1,818.42 (balance due on the judgment) on or before June 18, 1904. After taking the usual steps to preserve her exceptions to the rulings of the court on the trial, the garnishee appealed to this court. The appellant is the mother of Ralph Hammond Pybus, who was the oldest of her three children by Pybus. It appears that after the death of her husband in England appellant came to the city of St. Louis with her children, and married her present husband, Mr. Knapp, whose yearly income, she testified, was about $10,000. She testified that after her marriage to Mr. Knapp her three children lived with them as members of their family and were well treated and provided for by Mr. Knapp. She also testified that Ralph Hammond was her oldest child, and she knew, for that reason, he would inherit all of his father's estate in England, and to do justice to her other two children, who could not share in the inheritance, she made a contract with her son Ralph, when he was 14 years of age, to the effect that she should furnish the money to educate him (which she says she was not able to do for her other two children), he agreeing that when he came into his inheritance he would reimburse her for the expenses of his education; that when he attained his majority he went to England to collect his estate, and she gave him $2,000 to enable him to make the trip, and that this sum, and what she had expended for his education, books, etc., during his minority, amounted to about $6,500. Appellant also testified that while her son was in England he sent her a draft for $5,400 or $5,500 to be applied on this indebtedness, and in June, 1902, she deposited this draft to her own credit in the Mississippi Valley Trust Company, and subsequently drew the whole of it and used it for her own purposes. This part of her evidence was corroborated by the evidence of Georgia Knapp, her daughter. On cross-examination appellant stated that after the commencement of the garnishment proceedings she was advised by her son Ralph Hammond and her other children to draw the money from the trust company; that it would be best to have it at home. C. E. Ramlose, a shoe manufacturer, testified on behalf of respondents that he was the father of Miss Clara Ramlose, who married Ralph Hammond Knapp on November 24. 1903, and that they lived at his house after the marriage; that he knew Mrs. Anna Knapp, the garnishee, and Miss Georgia Knapp, her daughter. "Q. Did you ever have any conversation with Mrs. Anna Knapp about this Dodge and Mulvihill litigation she was having? A. Yes, sir; I had some. Q. What did she say to you about it? A. Why, she told me that she and her daughter held Ralph's money; that they could beat Dodge and Mulvihill out of it, and they only held it for the benefit of Ralph, and they had held it to beat Dodge and Mulvihill out of the money. Q. For the purpose of doing that? A. Yes, sir; she said so repeatedly—several times. Q. Was the question of defending this claim of Dodge and Mulvihill discussed between you and Mrs. Anna Knapp? A. Yes, sir. Q. What did she say in regard to that? A. She said Dodge and Mulvihil couldn't collect anything, because Mrs. Knapp would consume it for board money, and Mrs. Knapp would hold the money and had held the money. * * * Q. Did she say anything about the reason why no defense was made to the original suit brought by Dodge and Mulvihill? A. Yes, sir. Q. What was the reason. A. She said this had been put away to beat Dodge and Mulvihill. By holding the money, they would not employ an attorney to fight the other case. Q. They would hold the money? A. Yes, sir." Witness also testified that after Ralph's death Mrs. Knapp, the garnishee, told him that she wished she had said that Ralph had lost this money in gambling. “Q. What did she say after he was dead? A. After he was dead she said she might as well say that Knapp had gambled all his money up as to say that he paid it to her." Pending this proceeding Ralph Hammond Pybus died, and his wife, Clara P. Knapp, administered on his estate. After her appointment as administratrix, to wit, April 19, 87 S.W.-4 1904, the following order was entered in the circuit court by consent of all the parties: "Now, at this day, come the plaintiffs by attorney, and also comes the garnishee herein, and Clara P. Knapp, administratrix of Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, by their respective attorneys, and file herein a stipulation, and submit the same to the court, and in accordance with the said stipulation the death of said Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, is suggested nunc pro tunc as of January 20, 1904; and by consent of parties it is ordered and adjudged by the court that said Clara P. Knapp, administratrix of said Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, be made a party to this suit, and that the judgment rendered in the case No. 25,419 of this court, in favor of said Ernest C. Dodge and Thomas E. Mulvihill, and against said Ralph Hammond Pybus, otherwise known as Ralph Hammond Knapp, on the thirty-first day of October, 1902, for the sum of two thousand and seventeen dollars ($2,017), be revived, and the lien thereof continued from the thirty-first day of October, 1902, for said sum, interest, and costs of suit against the said administratrix." Respondents, over the objection of appellant, offered and read in evidence the pleadings and a decree of the St. Louis circuit court in a suit wherein Dodge and Mulvihill were plaintiffs and Anna Knapp, Georgia Knapp, Ralph Hammond Knapp, and the St. Louis Union Trust Company, trustee, were defendants, in which suit a decree was rendered in favor of the plaintiffs, finding that Anna Knapp by a certain will took a life estate in certain described real estate, the remainder to her three children in the following proportions: Ralph Hammond Knapp, two-twelfths; Georgia Knapp, five-twelfths; and Lester Knapp, five-twelfths. The decree further found that Ralph Hammond Knapp conveyed his two-twelfths interest, as well as a five-twelfths interest, which his sister, Georgia Knapp, had previously conveyed to him, to his mother, Anna Knapp, as trustee for his sister, and that this conveyance with respect to said two-twelfths interest was voluntary as to said Ralph Hammond Knapp, and "made without any good, valuable, or adequate consideration, and with fraudulent intent and purpose, participated in by said Ralph Hammond Pybus, alias Ralph Hammond Knapp, and said Anna Knapp and said Georgia Knapp, for the purpose of defeating the rights of the plaintiffs (Dodge and Mulvihill) as creditors of said Ralph Hammond Pybus, alias Ralph Hammond Knapp." The decree declared this conveyance as to this two-twelfths interest null and void, and established the lien of plaintiffs' judgment as to this two-twelfths, and directed the sheriff of the city of St. Louis to sell it after due advertisement ac |