tween the negligent act alleged and that proven and submitted. Our comment upon the instructions will be confined to the following, given on behalf of plaintiff: "An expert witness is one who is skilled in any particular art, trade, or profession, being possessed of peculiar knowledge concerning the same, acquired by study, observation, and practice. Expert testimony is the opinion of such a witness, based upon the facts in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based, and, before you can give any weight whatever to expert testimony, you must first find from the evidence that the facts upon which it is based are true. The jury is not bound by expert testimony, but it should be considered by you in connection with the other evidence in the case." The italicized words are objected to as containing an improper definition and prejudicial direction, the harmfulness of which, it is urged, is emphasized by the fact that some of defendant's witnesses from whom opinion evidence was elicited also gave testimony upon basic facts, Generally speaking, the opinion of a witness who, by reason of his training and experience in a given art, profession, or trade, possesses superior knowledge to that enjoyed by others, is received for the purpose of aiding the triers of fact in reaching a conclusion upon an ultimate fact not susceptible of direct proof, but deducible from proven facts. For the purpose of obtaining such opinion, the questioner is permitted to assume as proven the basic facts he is attempting to establish, and which are usually vital issues in the case. The opinion, therefore, is a dependent, a sort of superstructure imposed upon an hypothetical foundation, and stands or falls with its supporting facts. Obviously, a conclusion cannot serve strengthen the premises from which it arises. Therefore the statement that such evidence "does not even tend to prove any fact upon which it is based" is correct in principle. to It is the duty of the court, when called upon, to define the nature of expert evidence in the instruction given the jury, and error cannot be held to result from a correct definition. The meaning of the language employed in the instruction before us is clear and free from ambiguity, and we must presume the jury understood it in its proper sense. If they did, no room appears for the supposition that the credibility of witnesses who testified both to facts and opinion may have been affected improperly by the rules peculiar to opinion evidence, nor that the jury failed to give due weight to the entire testimony of such witnesses. The principle embodied in the final sentence of the instruction has been approved in a number of cases, and may be considered a settled rule. As opinion evidence is but advisory, the jury is not bound by it. Hull v. Trustee, 138 Mo. 618, 40 S. W. 89, 42 L. R. A. 753; Cosgrove v. Leonard, 134 Mo. 425, 33 S. W. 777, 35 S. W. 1137; City of Kansas v. Street, 36 Mo. App. 666; W. U. Tel. Co. v. Guernsey, 46 Mo. App. 120. The judgment is affirmed. All concur. STATE ex rel. SOUTH ST. JOSEPII TOWN OF JUSTICES OF THE PEACE-APPEALS JURISDICTION OF APPELLATE COURT-RECITALS RECORD-JUSTICES IN CITIES -MANDAMUSSCOPE OF REMEDY-DEFENSES. 1. A judge may interpose, as a defense to mandamus proceedings instituted against him, grounds for the ruling complained of which he did not assign as reasons for the ruling when made. 2. Under Rev. St. 1899, § 4071, requiring the circuit court to try a case appealed from a justice de novo, the circuit court has jurisdiction to try a cause appealed from a justice, although the judgment appealed from is in excess of the justice's jurisdiction to render. [Ed. Note. For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, § 473.] 3. A recital in a record of a case appealed from a justice that the action was commenced before F., "a duly qualified and acting justice of the peace in and for W. township, B. county, Missouri," satisfies the rule requiring the record to affirmatively show the justice's jurisdiction. 4. Rev. St. 1899, § 3805, providing that any townships which now or may hereafter include a city of 100,000 inhabitants, shall, on or before the 1st day of March, 1890, be divided into districts, in each of which one justice of the peace shall be elected, applies only to such townships containing a city of more than 100,000 inhabitants as existed on the date of its passage, or came into existence between that date and March 1, 1890. 5. Mandamus will not lie to correct the action of a circuit judge in erroneously ruling that he had no jurisdiction to entertain an appeal from a justice's judgment because the judgment appealed from was in excess of the justice's jurisdiction to render. Mandamus proceedings by the state, on the relation of South St. Joseph Town Company, against Chesley A. Mosman, circuit judge. Peremptory writ denied, Kendall B. Randolph, for relator. Woodson & Woodson, for respondent. JOHNSON, J. This is an original proceeding for a writ of mandamus to compel the respondent, a judge of the circuit court of Buchanan county, to reinstate upon his docket, and to hear and determine, a cause dismissed by him. An alternative writ was issued by one of the judges of this court, and the case is before us upon the issues presented by this writ and respondent's demurrer thereto. The facts are as follows: On June 3, 1904, the relator brought an action against Charles Scott, as its tenant, for possession of the rented premises situated in the city of St. Joseph, and to recover judgment for unpaid rent amounting to $262.50 which had accrued previously at the rate of $25 per month. The suit was begun before John Flournoy, a justice of the peace within and for Washington township in said county. Defendant, duly served with process, appeared, and upon his application a change of venue was awarded, and the cause sent to Joseph N. Walker, another justice in the same township. An answer was then filed by defendant, and, under the claim that the facts therein alleged presented an issue involving the title to the real estate, the cause was certified by the justice to the circuit court, but afterwards was remanded, upon the finding that such title was not in issue, and that jurisdiction was vested in the justice to try the issues joined. When the cause came on for trial defendant failed to appear, and judgment was entered in favor of plaintiff in the sum of $312, the amount of rent then delinquent, and for restitution of the premises. From this judgment defendant appealed to the circuit court, giving the statutory bond. In the circuit court he filed a motion to dismiss the cause, which, among others, contained the ground that the money judgment rendered by the justice, being for a greater sum than $300, was in excess of jurisdiction. Upon consideration of this motion, the court entered a final judgment dismissing the case, and caused his action to be set out in the record, as follows: 66# ** Said motion coming on to be heard, the same was taken up and considered, and the same was overruled as to all of the grounds therein stated, except that the judgment was void because for an amount in excess of the jurisdiction of a justice of the peace." There is no charge of waste nor irreparable damage, nor of insolvency of defendant, but this proceeding is based upon the theory that, under the landlord and tenant law, relator is entitled to a speedy trial, and, as the trial court refused to take cognizance of a cause falling within its jurisdiction, the remedy of appeal is insufficient to meet the exigencies of the case. Respondent in his demurrer attacks relator's right to relief upon the following points: First, the judgment rendered by the justice is void, being in excess of jurisdiction; and, as the power of the circuit court in appealed cases is derivative, an appeal from a void judgment will not confer jurisdiction. Second, the court in which the suit originated was not legally constituted, and therefore jurisdiction over the cause at no time was obtained. Third, the relator has a perfect remedy by appeal, and is not entitled to extraordinary relief. It is suggested that respondent, in interposing the second defense, is overstepping the limits of judicial propriety, because the point therein made was not considered by | him in his ruling upon the motion to dismiss, and his action in urging it here savors of partisanship, and indicates a purpose to defeat relator's rights, rather than a desire to aid in the accomplishment of justice in a controversy in which his sole interest is that of a judicial officer. We do not think respondent's conduct deserves animadversion in such respect. On the other hand, as we are being called upon to issue a peremptory mandate to correct a claimed abuse of power, it is respondent's duty to apprise us of any lawful reason for withholding the application of the extraordinary remedy sought. We could not act advisedly in cases of this character if a respondent, because of his office, should be held bound by rules of ethics to abstain from presenting legitimate defenses. In dismissing the cause for lack of jurisdic-tion, respondent acted under the assumption that the excess in the money recovery allowed by the justice infected with invalidity the judgment in its entirety, and that the authority of the circuit court, as an appellate tribunal, being derivative, originates in the judgment rendered by the inferior court; from which premise follows the deduction that a judgment void for exceeding the limits of the original jurisdiction is inoperative for any purpose, and cannot furnish a basis for action upon appeal. We will adopt for argument, without so deciding, respondent's view that the judgment of the justice was void, but we cannot follow the process of reasoning that resulted in the action taken. It is the rule, generally recognized, that, with respect to actions originating in inferior courts, an appeal will lie from a void judgment. Smith v. Jacobs, 77 Mo. App. 254; State v. Geiger, 45 Mo. App. 111. In such cases the jurisdiction of the circuit court is derived, not from the character of the judg ment rendered, but from the initial authority conferred upon the inferior court to hear and determine the cause. Walter v. Gilleland, 98 Mo. App. 584, 73 S. W. 295; Simpson v. Watson, 15 Mo. App. 431. The law requires the circuit court to hear the cause anew, not to act as a reviewing tribunal. The appeal vacates the judgment and reverts the parties to the position they occupied when jurisdiction over the subject-matter and parties was first obtained. Rev. St. 1899, § 4071; Carroll v. Hancock, 57 Mo. App. 228; Holzhour v. Meer, 59 Mo. 434; Sublette v. Ry. Co., 96 Mo. App. 121, 69 S. W. 745. Therefore the authority of the circuit court is not based upon the judgment rendered by the inferior court, nor upon any of its judicial acts, but is derived from the power it possessed to hear and determine the issues presented. When, as in the case before us, the subject-matter of the demand sued upon is one falling under the cognizance of the justice, and the parties are legally brought into court, the jurisdiction to proceed to final judgment is complete, and upon appeal passes to the circuit court, unimpaired. by the acts of the inferior court. Dowdy v. Wample, 110 Mo. 280, 19 S. W. 489; Babb v. Bruere, 23 Mo. App. 604; Batchelor v. Bess, 22 Mo. 402. The case of Williams v. Monroe, 125 Mo. 574, 28 S. W. 853, much relied. upon by respondent, in no manner militates against this view. In that case, it will be noted, the defendants were not brought into court in the manner provided by law; and in the opinion the Supreme Court said, "We are not dealing with a defective execution of a lawful authority, but with a proceeding unauthorized by law." Here we are dealing with a proceeding authorized by law, for the justice had full power to render a lawful judgment. And in the case of Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914, cited with approval in Williams v. Monroe, supra, the defendant was not made a party within the meaning of the law. He was served with notice and appeared, but was denied the right to be heard because of his rebellion against the authority of the federal government. The court said: "The legal effect of striking out his appearance was to recall the monition and notice as to him." And the judgment was held to be void as rendered against a defendant who had not his day in court. We freely concede the soundness of the doctrine enunciated in these two cases, and here, if it appeared that the defendant had not been brought into court or had been denied a hearing, or that the justice had no jurisdiction of the subject-matter of the action, we would not hesitate to say that the jurisdiction derived by the circuit court was confined to the power to dismiss the cause. Neither reason nor authority justifies turning out of court a plaintiff who has properly brought his suit, upon the ground that the justice in the progress of the case has exceeded his jurisdiction. The learned trial judge erred in dismissing the case without affording a hearing upon the merits. Respondent's contention that no legally constituted office of justice of the peace is shown to exist by the record is based upon his construction of section 3805, Rev. St. 1899. It appears that the action was commenced before John A. Flournoy, "a duly qualified and acting justice of the peace in and for Washington township, Buchanan county, Missouri"; and, while it is true the record here must show affirmatively the jurisdiction of the inferior court (Allen v. Scharringhausen, 8 Mo. App. 229; Gideon v. Hughes, 21 Mo. App. 528; Olin v. Zeigler, 46 Mo. App. 193), such requirement is satisfied by the record recital above noted (Duke v. Ry. Co., 39 Mo. App. 105; Kinion v. Ry. Co., 39 Mo. App. 3ST). But respondent insists that, under the provisions of section 3805, Washington township, including, as it does, a city of more than 100,000 inhabitants, should have been divided into districts by the county court, each one comprising the territorial jurisdiction of a justice of the peace. It is conceded that such action has not been taken, and that each of the justices of the peace in Washington township has been elected to exercise juris diction within the township. It also is conceded that the city of St. Joseph, situated within that township, contains, according to the census of 1900, more than 100,000 inhabitants, and that in the year 1800 it contained far less than that number. The determination of one question disposes of this branch of the case. An analysis of the language of the statute leaves no room for doubt that it was the purpose of the Legislature to confine the operation of the provisions relating to townships containing a city of more than 100,000 inhabitants to such as existed on the 1st day of March, 1890, and not to those falling within that class thereafter. The word "hereafter" used in the statute, upon which so much stress is laid by respondent, obviously refers to townships which might grow into the class between the date of the enactment and March 1, 1890. The situation which obtained at the latter date evidently was intended to be taken as a fixed condition. Under this view, we must hold that the office of justice of the peace within and for Washington township is legally constituted. But we are of the opinion that the extraordinary remedy here invoked should be denied, for the reason that relator has an adequate, in fact an exclusive, remedy under ordinary procedure. Relator assumes a false premise in the conclusion that respondent has refused to entertain any jurisdiction over the appealed case. To the contrary, respondent did assume authority to dispose of it, heard the motion to dismiss, acted upon it, and entered a final judgment from which an appeal could have been prosecuted. Nowhere did he overstep the bounds of his jurisdiction, and all of his acts were judicial in their character. Relator confounds his case with that class wherein the trial judge wrongfully refuses to entertain any jurisdiction, or to make a final order from which appeal will lie. But no authority has been brought to our attention sustaining the view that when a trial judge has entered a final judgment, not in excess of jurisdiction, but as a result of a mistaken idea that he is without authority to proceed further, the appellate court should employ remedial process to correct his error. Whenever the actions of the trial court are found to be within the scope of lawful authority, and to be such as are denominated judicial, error must be remedied through the usual procedure. The opposite practice would be inimical to the orderly administration of justice, and would serve to lessen respect for the courts. Corrective actions brought against judicial officers involve the idea of transgression, and should not be resorted to for the sole purpose of obtaining a speedy hearing nor for the correction of mere errors. Judicial excesses, devoid of adequate legal remedy, alone would justify the application of the remedy here sought. The peremptory writ is denied. All concur. TRACTS-BURDEN OF PROOF-TRIAL-DE- 1. In an action by an agent for commissions, the burden is upon him to prove an agreement for the commissions sought to be recovered. 2. Plaintiff was defendant's agent to sell "investment bond" contracts, and received as commissions a percentage of the premiums collected. There were two classes of these bonds, and plaintiff procured a subscriber for one class of bonds to subscribe for the other class. Subsequently plaintiff induced defendant to credit the subscription upon the new purchase with the full amount paid by the subscriber on the original purchase. There was no contract between plaintiff and defendant entitling him to a commission on negotiating an exchange of bonds, but the commissions were based upon money actually collected by him and turned in to defendaut. Held, that plaintiff was not entitled to Commissions on the amount credited by defendant by reason of the old bonds on the subscriber's purchase of new bonds. 3. Defendant does not waive his rights under demurrer to an item of evidence by requesting an instruction, after his demurrer is overruled, submitting, in a manner favorable to himself and conformable to the view of the court, the item of evidence to which the demurrer was addressed. Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge. Action by Daniel Warwick against the North American Investment Company of the United States. From a judgment for plaintiff, defendant appeals. Reversed. Claud D. Hall and Jno. C. Landis, Jr., for appellant. Boyer & McNeely, for respondent. JOHNSON, J. This action originated before L. W. Michelson, a justice of the peace in Washington township, Buchanan county; was removed on change of venue to H. W. Burke, another justice of the peace in the same township, where a trial resulted in favor of plaintiff. Following an appeal to the circuit court, defendant filed a motion in which it attacked the legality of the office of justice of the peace as constituted in Washington township, and one of the errors now claimed is the action of the court in overruling this motion. We have had occasion at this term to consider the question involved, in the case of State ex rel. South St. Joseph Town Company v. Mosman (not yet officially reported) 87 S. W. 75, and the conclusion reached was adverse to the position occupied by appellant. Adopting here the views expressed in that case, we hold no error was committed in the overruling of the motion. Plaintiff sued to recover commission due him as the agent of defendant. The result of the trial in the circuit court was in favor of plaintiff, who recovered judgment. Defendant appealed. There was some conflict in the evidence upon the issue relating to the employment. Plaintiff claimed that he was employed to work for defendant by the superintendent of its office in St. Joseph. J. O. Wyatt, and defendant's witnesses contended that Wyatt was without authority to represent defendant in the hiring of agents, and acted upon his own responsibility in the employment of plaintiff. In the instructions given, the principles of law applicable appear to be correetly defined. This issue, therefore, was settled, so far as we are concerned, by the verdict of the jury. Plaintiff was employed to sell on the installment plan certain contracts, called "investment bonds," issued by defendant. Two classes of these bonds were sold to investors: One called the "$250 Gold Bond," upon which the premiums were payable at the rate of 30 cents per week, and which matured in seven years; and the other called the "$500 Gold Bond," maturing in eight years, with weekly payments of $1 each. It is admitted that on all sales made by him plaintiff was to receive a commission of 60 per cent. of the amount paid as premiums for the first 20 weeks, and thereafter he was to receive 10 per cent. of the amount of installments collected by him. The principal controversy is over commission claimed on account of a sale made to a Mrs. Delaney. Plaintiff sold her 15 of the "$500 Gold Bonds," receiving $300 in payment of the premium installments for the first 20 weeks. At the time of the sale, Mrs. Delaney owned 30 of the "$250 Gold Bonds." upon which she had paid installments amounting to $375. She wished to dispose of these bonds, and plaintiff, at the time of the sale of the others, undertook to sell them for her. It is a fair inference from plaintiff's testimony that Mrs. Delaney was induced to purchase the new bonds by the assurance of plaintiff that he could sell the old ones. Being unable to dispose of them, plaintiff, according to his version, procured the somewhat reluctant consent of the defendant to take the old bonds and allow Mrs. Delaney credit upon her new purchase for the full amount paid in on them-$375. Plaintiff's claim in this action includes 60 per cent. of the cash payment of $300 and 10 per cent. of the said sum of $375, which he treats as a collection made by him of premium installments. The court refused to give an instruction asked by defendant which precluded a finding upon the item of $37.50 commission claimed for the credit given on account of the old bonds, and in other instructions submitted that item to the jury. We fail to find anything in the evidence justifying this action of the court. Plaintiff's own testimony relating to his contract for commission is as follows: The contract was that money collected from sales by plaintiff was to be turned over to Mr. Wyatt, who would pay him 60 per cent. "Q. Your commissions. then, were based upon the money actually collected and turned in to the company? A. Yes, sir. Q. And the collection commissions was the same way, wasn't it? A. The collection commissions was 10 per cent. above that. Q. On the money that you actually collected and turned in? A. After the first 20 weeks; yes, sir. * Q. Now, you never had any contract in regard to exchange of old bonds, or what your 'commission' would be for the exchange of bonds? A. No, sir." The burden was upon plaintiff to prove an agreement for commissions upon old bonds received in exchange. Instead of do ing this, bis own statements, above quoted, negatived the idea that the payment of such commissions was contemplated by either of the parties. It certainly could not be inferred from the agreement to pay commissions upon money collections. Nothing was said by the parties at the time the credit was given upon the subject of the allowance of commissions thereon. Considering that the old bonds were taken in evidently for the purpose of protecting the sale made by plaintiff, in furtherance of his assurance to Mrs. Delaney, and at a price including commissions paid by defendant to the agents who had effected the original sale and attended to the collections made thereunder, no reason appears for the payment by defendant of a double commission. Plaintiff failed entirely to sustain his burden with respect to this item, and it was error to permit a recovery upon it. Nor, as suggested, has defendant waived its right to complain of this error by asking an instruction in which the jury was told "that plaintiff is not entitled to. any collection commission on any old bonds that plaintiff may have exchanged for from any bondholder, unless you further find from the evidence that plaintiff had a special authority for making such exchange, and a special contract for a commission on the value of such old bonds." After an adverse ruling on its demurrer as to this item, defendant was not required, in order to preserve its exception, to stand upon the demurrer, but had the right to ask instructions which conformed to the view of the court. It is a defendant's privilege to tender his defenses as they arise, and, when forced to take new positions, he may do so without waiving his exceptious to rulings of the court which compelled him to abandon other defenses. Cochran v. Ry. Co., 113 Mo. 366, 21 S. W. 6; Glover v. Bolt & Nut Co., 153 Mo. 342, 55 S. W. 88; Bealey v. Blake, 70 Mo. App. 237. We find no other error in the case. The judgment is reversed, and the cause remanded. All concur. defendant's private railroad track, defendant owed plaintiff the duty to exercise ordinary care to avoid injuring him with cars passing on the track. 2. On appeal the case will be considered on the same theory on which it was tried. 3. In an action for injuries to a servant of an independent contractor erecting a building for defendant near a private car track, evidence held to justify submission to the jury of the issue of defendant's negligence. 4. In an action for injuries to a servant of an independent contractor engaged in erecting a shed for defendant near a private car track plaintiff alleged that while he was on a post attempting to raise à girder defendant negligently ran one of its cars against the girder so as to knock the post to the ground, and that by the exercise of ordinary care the servant in charge of the car could have discovered the danger and avoided the collision. The court charged that, if the jury believed that while plaintiff was engaged in hoisting the girder it was struck by defendant's car by reason of the carelessness or negligence of defendant's servant, and knocked to the ground, they should find for plaintiff. Held, that the instruction was not broader than the allegation of negligence in the petition. 5. The fact that an instruction is in general terms is not cause for reversal unless it is erroneous or misleading. 6. In an action for personal injuries to a servant of an independent contractor engaged in erecting a shed for defendant near a private car track, evidence held to justify the submission to the jury of the issue of plaintiff's contributory negligence. 7. In an action for personal injuries, an instruction that, before the jury could find for defendant on the issue of contributory negli gence, they must find that plaintiff was injured by his own negligence, and not by the negligence of defendant's servant, was erroneous, and was not cured by another instruction to the effect that, if plaintiff could have done the work on which he was engaged in a safe way, and nevertheless used the method adopted by him, and, if that method was obviously dangerous, and plaintiff guilty of negligence in adopting it, he could not recover. [Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 382-387.] 8. In an action for personal injuries error in an instruction on contributory negligence is not cause for reversal where there is no substantial evidence of contributory negligence. Appeal from St. Louis Circuit Court; J. W. McElhinney, Judge. Action by Gottlieb Sack against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Affirmed. R. A. Holland, for appellant. Rassieur & Buder, for respondent. BLAND, P. J. Respondent, who is a carpenter, was in the employ of Bothe & Ratterman in the spring and summer of 1899, and as such in July of that year (working for Bothe & Ratterman) was engaged in erecting a shed for the St. Louis Car Company on its premises in North St. Louis. For its own convenience the car company maintained and operated on its premises a private electric railway, which ran within about four feet of the shed respondent was helping to erect. In the construction of the framework of the shed, posts from 14 to 16 feet in length were set and braced. On some |