text:
    Billy J. TERRELL et al., Appellants, v. Harold OLSEN, Appellee.
    No. 14251.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1964.

      Dobbins & Howard, Richard W. Harris, San Antonio, for appellants.
    Jack F. Ridgeway, Ekillis M. Chandler, San Antonio, for appellee.
   BARROW, Justice.

This suit for rescission of contracts to purchase tracts of land, and to recover actual and exemplary damages for fraud and conspiracy, was brought by appellants, Billy J. Terrell and twenty-six other individuals, against Billy Thomas and ap-pellee, Harold Olsen. At the conclusion of appellants’ case, the trial court granted Olsen an instructed verdict and rendered judgment for appellants against Thomas for $6,795.00 actual and $13,590.00 exemplary damages. Appellants have perfected this appeal from the take-nothing judgment rendered on their claim against Olsen.

Appellants assert, by their first four points, the basic proposition that they established a prima facie case of conspiracy between Thomas and Olsen and the trial court erred in holding as a matter of law that no conspiracy existed. It is fundamental that in passing upon this proposition, we must view and interpret the evidence in its most favorable light to appellants, disregarding all evidence and the inferences therefrom favorable to appellee. Ford v. Panhandle and S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561; Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

This suit arose out of the sale to appellants by Thomas of small tracts of land located in an area designated by Thomas as Forrest Hills residential subdivision, although there was no recorded plat of a subdivision. The purported subdivision comprised a 96-acre tract of land in Bexar County, conveyed to Thomas by Olsen on November 11, 1959. These ninety-six acres were out of a 254-acre tract purchased by Lou Hoke from George and Lloyd Wright in 1956, out of a 965-acre tract owned by the Wrights. The Wrights had burdened the entire 965-acre tract with three leases of 2.4-acre sites to three powder companies for storage of dynamite. 'These leases were executed on November 14, 1951, December 1, 1951, and March 1,1952, respectively, and each was for a primary term of ten years, with a year-to-year option for an additional period of five years, and among other covenants, provided: “That no dwelling for human habitation will be erected on lessor’s property within 1500' (1700' on one lease) of lessee’s magazines.” These leases were duly recorded in the Deed Records of Bexar County.

For many years prior to the present controversy Olsen operated a radio and television parts shop in San Antonio. He had never taken part in the development of a subdivision, although he did buy and sell rural real estate. When Lou Hoke bought the 254-acre tract from the Wrights, Olsen loaned her the money and was given a deed of trust to secure the loan. Olsen acquired this tract by foreclosure in July, 1957. It is located about nine miles south of San Antonio on U. S. Highway No. 281, and the only improvement on this blackjack pasture land at the time of his acquisition was a tank constructed by Lou Hoke. In 1958 the A. E. M. Corporation, which was owned by Jake Elliott, was developing a subdivision on the adjoining tract.

Elliott was contacted by a real estate friend of Olsen in regard to the purchase of Olsen’s land. Elliott did not want the land within the dynamite restriction, and, after a survey, purchased 158 acres of the 254-acre tract. The remaining 96 acres are all substantially within the specified distances of 1500' or 1700' from the aluminum huts, 9' x 12' and 14' high, in which the dynamite is stored, and therefore within the restriction. After this purchase in March, 1958, Elliott subdivided the 158 acres for sale as homesites.

Thomas worked for Elliott as a commission salesman on this subdivision, and in December, 1958, he contacted Olsen in regard to purchasing the remaining 96 acres at the same price ($160.00 per acre) as Elliott paid for the 158 acres. Olsen re-offered the 96 acres to Elliott, who declined because of the dynamite restriction. On December 11, 1958, Olsen and Thomas entered into an earnest money contract for purchase by Thomas of this 96 acres for $500.00 down and a note for the balance. A dispute arose over Thomas’ right to use a road across Elliott’s 158 acres, and the title company refused to issue a guaranty title as called for in the earnest money contract. On April 7, 1959, Thomas sued Olsen for $50,000 damages for failure to furnish ingress and egress to the 96-acre tract. The suit was subsequently settled by return of the $500 down payment, and on November 11, 1959, Olsen conveyed the 96-acre tract to Thomas by special warranty deed, subject to any mineral lease and/or easements of record. This deed was duly recorded on November 13, 1959. A note in the sum of $14,525.15, payable $150.00 per month, and secured by a deed of trust, was given as consideration for the purchase by Thomas.

Shortly thereafter Thomas cut a few streets in the tract, staked it off into lots, and commenced advertising and promoting the sale of the land as a “wooded subdivision.” Each of the appellants paid all or part of the purchase price of a lot, although none of them secured a deed from Thomas. These sales took place during April and May of 1960, and also near the end of that year. In December, 1960, Thomas abandoned the project and his whereabouts and resources were unknown at the time of the trial. There was evidence of many false representations to appellants by Thomas as to the suitability of the lots as homesites, the availability of all utilities, and the proposed construction of a recreational area. None of the appellants were informed of the restriction contained in the dynamite leases.

Appellants do not assert that any of these false representations were made by Olsen, or even in his presence. They allege that Olsen fraudulently, willfully and maliciously conspired with Thomas to sell the land at a price far in excess of its true value by subdividing and selling the lots as residential property. It was further alleged that Olsen conspired in concealing the dynamite restriction and the close proximity of the magazine storage sites to the tract. That in furtherance of this conspiracy, Olsen conveyed the land to Thomas, but retained the equitable title in the form of a vendor’s lien.

An actionable civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Great National Life Ins. Co. v. Chapa, 377 S.W.2d 632 (Tex.1964) ; International Bankers Life Ins. Co. v. Holloway, Tex., 368 S.W.2d 567. In the Holloway case, the Supreme Court recognized the difficulty a party has in securing evidence of a conspiracy. It was there said:

“The general rule is that conspiracy liability is sufficiently established by proof. showing concert of action or other facts and circumstances from which the natural inference arises that the unlawful, overt acts were committed in furtherance of common design, intention, or .purpose of the alleged conspirators.”

■ The Court cited with approval Jernigan v. Wainer, 12 Tex. 189, as follows:

“When men enter into conspiracies, they are not likely to call in ¿.witness * * ' *. ,In such cases the. injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses.” See also: Berry v. Golden Light Coffee Co., 160 Tex. 128, 327 S.W.2d 436; State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550.

It is well settled, however, that the difficulty in proving acts of conspiracy will not supplant the necessity for evidence, and appellants were therefore required to show, a conspiracy by evidence of more than a scintilla. International Bankers Life Ins. Co. v. Holloway, supra; Frankfurt v. Wilson, Tex.Civ.App., 353 S.W.2d 490; City of Corpus Christi v. Gregg, Tex.Civ.App., 275 S.W.2d 547, rev. on other grounds, 155 Tex. 537, 289 S.W.2d 746; Gager v. Reeves, Tex.Civ.App., 235 S.W.2d 688; Kenyon v. Bender, Tex.Civ.App., 174 S.W.2d 110.

It is our opinion, from an examination of this record in the light of the above rules, that appellants failed to establish a prima facie case of a conspiracy between Thomas and Olsen. The most that can be said is that the jury could infer from the testimony of Elliott that Olsen knew that Thomas would subdivide the 96-acre tract. However, there is no connection between Olsen and the fraudulent representations made by Thomas to appellants. Olsen was never on the property from the time of the purchase by Thomas until May, 1963’. The land was suitable for subdivision into tracts of an acre ór more for use other than as a homesite until the dynamite restriction terminated. In' fact, appellant Terrell testified that the property was a good buy and that 'he endeavored to obtain a deed frond. Thomas after he had learned óf the dynamite restriction. The dynamite leases were all of record and the magazine'Storage huts were plainly visible.

The record shows only a grantor^grantee relationship between Olsen and Thomas. Regular books of account kept by Olsen reflect such a relationship. ■ The special warranty deed was made expressly, subject to the easements of record and was promptly recorded. . Thomas sued Olsen over -the terms of the earnest money contract for purchase of the tract. On May 17, 1960, Olsen’s attorney made a written demand for payment of the delinquent monthly payments and required payment of $300.00 by Thomas within a week to avoid foreclosure. Olsen made the same contract with Thomas and Elliott relative to partial release of an acre or more from his vendor’s lien, upon payment of $200.00 per acre in addition to the regular monthly payments. The uncontradicted testimony showed that' this was the customary provision in this type of purchase.

There is no evidence beyond a scintilla, conjecture or surmise to establish a conspiracy between Thomas and Olsen to defraud appellants. The trial court, there- ' fore, properly struck as hearsay the acts and statement of Thomas outside the presence of Olsen. 12 Tex.Jur. § 21; Reliance Ins. Co. v. Smith, Tex.Com.App., 66 S.W.2d 675; North River Ins. Co. of New York v. Daniel, Tex.Civ.App., 101 S.W.2d 401; Vittitoe v. Junkin, Tex.Civ.App., 54 S.W.2d 166.

The judgment is affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    Jack JOHNSON, Appellant, v. Oran BACK, Appellee.
    No. 7349.
    Court of Civil Appeals of Texas. Amarillo.
    April 27, 1964.

      Lemon, Close & Atkinson, Perryton, for appellant.
    Gallaway & Dunning, Borger, for appel-lee.
   CHAPMAN, Justice.

This is an appeal by Jack Johnson from a judgment for Oran Back rendered by the court sitting without a jury.. The suit was filed by Jack Johnson in the nature of a trespass to try title for title and possession of the surface only of a section of land in Hutchinson County designated in the record as Section 20.

■ Title to all of the oil and gas or other minerals, together with the right of ingress and egress for the purpose of developing and extracting such minerals and the right to use such part of the surface as might be necessary or convenient in the development and extraction thereof was reserved by the grantor, D. D. Herrington, when the-section was conveyed to appellant.

Appellant admits in his brief that appel-lee had the consent of Herrington, the mineral owner, “ * * * to construct the compressor stations and facilities involved here.” The record shows they were first constructed by appellee as a contract operator for the oil and gas lessees, compressing and transporting Casinghead gas produced under the terms of the oil and gas leases created by Herrington on Section 20. No consideration was paid by appellee to appellant when the compressor station was initially installed in 1954, no crop damage was incurred and no request for payment was made by appellant.

The Casinghead gas volume from Section 20 dropped in 1955 to the extent that it was not economically feasible to continue the compression of gas from that one unit, so appellee made arrangements to compress Casinghead gas from wells on the section of land just south of Section 20. A pipeline bringing it to the compressor station was constructed and it was then discharged through an existing pipeline. An engineering plat had been made to show the most economical place to lay the pipeline but it was changed some to satisfy Mr. Johnson and he was paid $75 consideration. Appel-lee continued to use the “foreign gas” for four or five years before this suit was filed and testified appellant made no complaint about it until 1960 and made no demand for removal of the six inch line.

In 1960, because of more efficient methods of gathering it, increases in Casing-head gas production necessitated the increase of the facilities from one stage to two stage compressors. There is testimony showing this would have been required even without the “foreign gas”, which the evidence shows was used only as filler gas in order to bring the compressors up to load. The larger installation required a little more land to a total of about four-tenths of an acre.

The trespass to try title suit was filed on February 24, 1961. An attempt to negotiate a settlement of the differences was made by the lawyers representing both parties. These negotiations resulted in a settlement proposal being submitted by appel-lee’s counsel to appellant’s counsel. The latter revised the proposal and it was accepted by counsel for appellee, who advised appellant’s counsel it would be necessary for Back to make a substantial expenditure on the premises about October 1, 1961.

Subsequently, appellant’s counsel advised appellee’s counsel the settlement agreement had been executed by appellant’s wife and that appellee could go ahead and install the new facilities, subject only to reviewing the limits of the area shown on the plat attached to the settlement agreement. After the expenditure of more than $30,000' bad been made for the new facilities, a meeting- was held by the parties and the counsel at the site of the improvements. Appellant still had not signed the agreement and at this time made a new proposal requiring an annual rental for the use of the land involved in the dispute. Appellee ■refused.

After hearing all the evidence the court rendered a judgment quieting title to the •surface of the section of land subject to an ■easement in favor of appellee “ * * * for maintenance, construction, reconstruction and operation of a compressor station and appurtenant facilities thereon, together with the right of uninterrupted ingress and -egress thereto and the right to lay, re-lay, -’install, maintain and operate pipelines, to■gether with such drips, meters and other appurtenant facilities as may be necessary or convenient to the operation and maintenance of such compressor station and its appurtenant facilities, upon payment by Defendant of the sum of One Thousand Dollars ($1,000.00) into the registry of this Court.”

The court also found in his judgment that Mr. Johnson through his attorney and agent agreed that Mr. Back could proceed to make the valuable improvements upon an agreed consideration in settlement of $1,000; that he made such improvements in reliance thereon; that by reason thereof the statute of frauds is not applicable; and that additionally such facts constitute an accord and satisfaction. It is from such judgment appeal is perfected upon three points, the first two of which contend there was no evidence, or alternatively, insufficient evidence of an accord and satisfaction.

We have read the statement of facts very carefully and have concluded there is sufficient evidence that Mr. Lemon as attorney for Mr. Johnson was acting as his agent in the negotiations and that there is sufficient evidence to show a meeting of the minds between the respective attorneys acting as agents for their clients. There is testimony that Mr. Lemon told appellee’s counsel, Mr. Dunning, to go ahead with the new facilities. Mr. Dunning as a witness said: “I told him [Mr. Lemon] that we must install these facilities, or go elsewhere. Mr. Lemon told me to go ahead.”

Any person competent to contract may be a party to an accord and satisfaction. Texas & Pacific Ry. Co. v. Poe, 131 Tex. 337, 115 S.W.2d 591.

The mere retainer of an attorney at law confers on such attorney no authority to bind his client by an agreement of accord and satisfaction, American Jurisprudence, Accord and Satisfaction, Section 12, Page 219, Volume 1, but here the attorney had taken an active part in the negotiations even to the extent of going to the grounds upon which the facilities were based and examining them. We believe the evidence is sufficient when examined as a whole for the trial court to find Mr. Lemon was acting as the authorized agent of Mr. Johnson.

In his third and last point appellant contends the court erred in failing to enter judgment for appellant after correctly determining the verbal easement claimed was subject to the statute of frauds.

The point as worded appears to us to be contrary to the -specific finding made in the court’s judgment to the effect that: “* * Defendant entered upon the premises and made valuable improvements in reliance upon such agreement; that by reason of the foregoing, the Defendant’s -claim to an easement upon said land is not subject to the statute of frauds and no writing is necessary to establish the rights of Defendant to an easement * * * ”

One of the means through which an easement may be created is estoppel. 21 T.J.2d, Section 23, Page 148 and cases there cited.

Evidence of title by estoppel in a trespass to try title suit is admissible under a plea of “not guilty.” McBride v. Hutson, Tex.Civ.App., 302 S.W.2d 456 (reversed on other grounds). Rule 789 Vernon’s Ann.Texas Rules provides: “Under such plea of ‘not guilty’ the defendant may give in evidence any lawful defense to the action except the defense of limitations * * * ”

Our Supreme Court in Harrison v. Boring, 44 Texas Reports, 255, 267 has held:

“The owner of land may create an easement by a parol agreement or representation which has been so acted on by others as to create an estoppel en pais. As ‘where he has by parol agreement granted a right to such easement in his land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of it.’ ”

We believe under the facts of our case such equitable doctrine would apply and that an easement by estoppel is shown.

No request was made for findings of fact or conclusions of law. In the absence of such request it must be assumed that the trial court’s findings support its judgment and the judgment must be affirmed if there is any evidence of probative force to support it upon any theory authorized by law. Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74; Old Nat. Life Ins. Co. v. Guest, Tex.Civ.App., 163 S.W.2d 241 (writ refused); Bostwick v. Bucklin, Tex.Civ.App., 190 S.W.2d 814, affirmed 144 Tex. 375, 190 S.W.2d 818.

There is still another reason we believe the court’s judgment must be affirmed. The right of ingress and egress for the purpose of developing and extracting such minerals and the right to use such part of the surface as might be necessary or convenient in the development and extraction thereof was reserved by appellant’s grantor, D. D. Herrington when the section was conveyed to him. Appellant admits in his brief that appellee had the consent of Herrington, the mineral owner, to construct the compressor stations and facilities involved. There is probative testimony showing enlarged facilities would have been required even without the “foreign gas.” If the enlarged facilities were necessary to compress the Casinghead gas on Section 20, we do not believe appellant’s claim in trespass to try title was good. Accordingly, the judgment of the trial court is affirmed.

      . They had been negotiating with another party for land on which to place such facilities.


author: COLLINGS, Justice.

text:
    Roy HOBBS et al., Appellants, v. TRIANGLE SUPPLY COMPANY, Appellee.
    No. 3865.
    Court of Civil Appeals of Texas. Eastland.
    March 27, 1964.

      Robert E. Ford, Abilene, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp, J. M. Lee, Abilene, for appellee.
   COLLINGS, Justice.

Triangle Supply Company brought this suit against Roy Hobbs and William Hobbs upon a sworn account. Plaintiff further .alleged that on or about December 12, 1961, prior to the furnishing of the materials to the defendants, said defendants organized a corporation which fact plaintiff anticipated defendants would use as a basis of seeking to avoid individual liability upon the sworn account. Plaintiff alleged that defendants did not comply with the applicable Texas law in giving notice to existing creditors; that plaintiff had no knowledge of such incorporation and continued to extend credit to said defendants as individuals and partners, and urged that defendants were es-topped to assert lack of liability as a consequence of the organization of such corporation in December of 1961. By supplemental petition plaintiff sought to recover attorney’s fees in the sum of $1,000.00 incurred in prosecuting this suit.

On May 29, 1963, the defendants answered by general denial. Trial was first set for September 16, 1963, and át that time defendants announced ready fot trial subject to the filing of an amended pleading. "Defendants’ First Amended Original Answer” was then submitted to the court for filing and was identified by the court reporter as Defendants’ Exhibit 1. The court refused to permit the filing of the amended pleading and the defendants withdrew their announcement of ready, stating that they were not ready for trial unless permitted to file a sworn denial. The case was then passed to September 18th, 1963, and it was indicated by the court that a jury would be available at that time. On September 18th, 1963, the defendants again announced ready subject to the filing of “Defendants’ First Amended Original Petition” which is shown in the record as Defendants’ Exhibit 1. Permission to file such an amended pleading by the defendants was again refused and the case proceeded to trial. A jury was impaneled and sworn, and at the conclusion of the plaintiff’s case, defendants offered no testimony. The court thereupon discharged the jury and entered judgment for plaintiff against the defendants, jointly and severally, for the sum of $3,228.-94, the amount of the account, and for $1,-000.00 as attorney’s fees. The defendants have appealed.

In appellants’ first point it is contended that the court erred in rendering judgment against them “on the basis that plaintiff’s verified account was established as a matter of law.” Appellants assert that the verified account sued upon is not sufficiently itemized to support a judgment; that it is nothing more than a series of dates and invoice numbers without reference to merchandise. It is true, as appellants contend, that the verified account does not set out or describe any merchandise but simply refers to invoice numbers and designated sums of money. Regardless, however, of whether appellee is entitled to recover under its claim of a sworn account there can be no question that it is entitled to recover on a stated account. The case of Davis v. Gilmore, Tex.Civ.App., 244 S.W.2d 671, (Writ Ref.), was a suit upon a sworn account, and the answer was by sworn denial. It was held that the proof was sufficient to establish an “account stated.” It was stated by the court as follows:

“This proof showed that the account was rendered to Dillard, and that it was retained without objection for a reasonable time after full opportunity had been offered to object, during which time he caused the collector to take a note to his partner Davis seeking to have him pay the bill. This was even more than an approval by silence which would have been sufficient. * * * this raised the inference of approval of the bill, so as to make it a stated account. * * *
“A suit on an open account may be proved by an admission that the account is due and owing. Proof of a stated account is one way to prove an action on an account. ‘In other words, evidence of a stated account is sufficient proof to support plaintiff’s cause of action on an open account, and therefore it may be supported by an implied as well as an express admission, as by the assent which is presumed from acquiescence in an account rendered.’ ”

In the instant case the evidence shows without dispute that the defendants were provided with invoices of all materials purchased; that the invoice numbers were as set out in the purported verified account; and that none of the invoices were returned to appellee. The evidence also shows that appellants made payments on the account totaling $1,100.00, and never made any protest or complaint to appellee concerning the material furnished or the amount of the account, even after this suit was filed. The only pleading filed by appellants was a general denial. Their “Defendants’ First Amended Original Answer”, which they tendered for filing but which the court refused to permit them to file, did not deny the justness of the account in so far as the material furnished or the correctness of the amount of the claimed indebtedness is concerned. The effect of the allegations of such proffered pleading was simply that appellants were not liable for the indebtedness; that Hobbs Drilling Company, Inc. “was organized in December of 1961, and that thereafter appellants worked as employees of such corporation”, and that it, and not they, were liable for the indebtedness upon which appellee brought suit. Appellants also alleged that Triangle Supply Company was notified before the incorporation of Hobbs Drilling Company that the partnership theretofore existing had ceased to exist and that appellants Roy Hobbs and William Hobbs were thereafter working for the Hobbs Drilling Company, a corporation and that appellee, as it had done in the past, continued to' send their invoices to Hobbs Drilling Company.

The evidence in our opinion establishes a. stated account and fully supports the judgment rendered against appellants. Peurifoy v. Hood Rubber Products Co., Tex.Civ.App., 59 S.W.2d 428; Walker-Smith Co. v. Roan, Tex.Civ.App., 43 S.W.2d 1108.

In appellants’ second point it is urged that the court erred in refusing them the right to deny under oath the correctness of the account sued on and in their third and fourth points they complain that the court erred in refusing to permit them to file their first amended original answer, identified as their Exhibit 1, before announcing ready and later when tendered as a trial amendment. In the first place, there is no showing that appellants tendered any pleading denying under oath that the account was just and true. The pleading tendered by appellants and shown in the record as their Exhibit 1 did not deny under oath, or otherwise, the justness of the account but in effect asserted only that appellants were not liable because of the formation of the corporation. Appellants’ general denial permitted any defense which they could have urged under their proffered first amended original answer if the court had permitted it to be filed. Under these circumstances we are unable to see how appellants could have suffered any harm by the refusal of the court to permit the filing of such pleading.

In appellants’ fifth point it is contended that the court erred in rendering judgment against them because the evidence shows that issues of fact were raised which should have been submitted to the jury. Appellants urge that plaintiff plead and tried the issues of corporate liability versus individual liability of the defendants, and that fact issues on this question should have been submitted to the jury. Appellants do not state what specific fact issues should have been submitted. Article 1302-2.02, Vernon’s Ann.Tex.Civ.St. provides as follows:

“Whenever any banking, mercantile or other business firm desires to become incorporated without a change of firm name, such firm shall, in addition to the notice of dissolution required at Common Law, give notice of such intention to become incorporated for at least four (4) consecutive weeks in some newspaper published at the seat of State Government, and in the county in which such firm has its principal business office, if there be a newspaper in such county; and, if not, then in some newspaper published in some adjoining county; provided, however, that such notice shall only be published one (1) day in each week during the said four (4) weeks. Until such notice has been so published for the full period above-named, no change shall take place in the liability of such firm or the members thereof.”

Appellants admitted in answer to requests for admission (1) that Hobbs Drilling Company was incorporated on December 12, 1961, (2) that Roy Hobbs and William Hobbs were original incorporators of Hobbs Drilling Company, (3) that Roy Hobbs and William Hobbs are stockholders of Hobbs Drilling Company, (4) that prior to December, 1961, William Hobbs and Roy Hobbs were partners doing business under the name of Hobbs Drilling Company or Hobbs Bros. Drilling Company, (S) that subsequent to the incorporation of Hobbs Drilling Company no notice was published in any newspaper in the Abilene area pertaining to such incorporation, (6) that prior to December 1, 1961, William Hobbs was engaged in drilling oil and gas wells, and (7) that prior to December, 1961, Roy Hobbs was engaged in drilling oil and gas wells. In addition to appellants’ admission that no notice was published in any newspaper concerning the.formation of the corporation there was evidence to the effect that plaintiff was not informed of and did not know of the formation of the corporation. Appellants offered no proof and introduced no evidence showing publication of notice in a newspaper or to show that plaintiff had been notified or informed in any way of the corporation which they had organized prior to the time the material was furnished and the indebtedness here in question came into being. Actually the language of the statute requires publication of such notice in a newspaper as a prerequisite to a release of the firm members. In this state 'of the record we are unable to see that any issue of fact was presented as to the individual liability of appellants. The court did not err in rendering judgment against them.

The judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    L. F. BOYDSTON et al., Appellants, v. Mary Page CHILDRESS et al., Appellees.
    No. 3837.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1964.
    R. J. Balch, Seymour, Don E. Burdette, Ft. Worth, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp, Robert Surovik, Abilene, for ap-pellees.
   GRISSOM, Chief Justice.

Mary Page Childress, joined by her husband, and William Louis Page, sued L. F. Boydston, M. T. Shaw, Horton Porter, O. H. Bartley, Wayne Nicholson, Fort Worth Fountain & Hotel Supply and Brunswick Automatic Pinsetter Corporation. They sought and obtained judgment against Boydston and Shaw, as the lessees, and against Nicholson, Porter and Bartley, as assignees and partners of said lessees, for the unpaid portion of a rental contract. Plaintiffs also sought against Fountain & Hotel Supply and Brunswick foreclosure of.their landlord’s lien and an injunction preventing removal of some personal property from the leased building. Plaintiffs allege that Brunswick Automatic Pinsetter Corporation and Fort Worth Fountain & Hotel Supply were claiming some interest in the personal property in the leased building. Plaintiffs admitted that their landlord’s lien had been subordinated to the chattel mortgage of Brunswick Automatic Pinsetter Corporation “covering automatic pinsetting equipment only” but they alleged that Brunswick’s other chattel mortgage and the chattel mortgage of Fort Worth Fountain & Hotel Supply were subordinate to the plaintiffs’ lien upon all other property in the leased building; that said defendant mortgagees were threatening to remove the property covered by their mortgages from the building without satisfying plaintiffs’ indebtedness; that the bowling lanes in the leased building had been closed since October 24, 1962 and that defendants retained the keys to the building and were withholding possession from the plaintiffs. Plaintiffs prayed that all defendants be enjoined from removing any of the personal property from the premises, other than a certain named piece of equipment, and that they have judgment against Boyds-ton, Shaw, Nicholson, Porter and Bartley, jointly and severally, for $24,200.00, for possession of said building, and for foreclosure of plaintiffs’ landlord’s lien on all other personal property in the leased building.

The judgment recites that there came on to be considered plaintiffs’ motion for a summary judgment and expressly names all of said defendants. It then recites that plaintiffs “stated that they no longer seek any judgment against Fort Worth Fountain and Hotel Supply Company, which company has relinquished any and all claims to properties of the Seymour Bowling Lanes, and Plaintiffs further stated at the time of hearing that summary judgment was not sought against Brunswick Automatic Pinsetter Corporation.” It then recites that Boydston, Shaw, Bartley, Porter and Nicholson were before the court for a hearing on plaintiffs’ motion for summary judgment and, it appearing that said motion was accompanied by certain affidavits, and the court, having considered the pleadings and affidavits, found that the amount of unpaid consideration for the lease was $24,200.00, and that Boydston, Shaw, Bartley, Porter and Nicholson were jointly and severally liable therefor ; that no genuine issue as to any material fact had been raised and that plaintiffs were entitled to judgment against the defendants and each of them, as a matter of law. It then decrees that plaintiffs recover from Boydston, Shaw, Bartley, Porter and Nicholson, jointly and severally, $24,200.00. The judgment concludes that it is “without prejudice to the rights of any party to subsequently litigate any additional matters not precluded hereby.”

Boydston, Shaw, Bartley, Porter and Nicholson have attempted to appeal. Although the judgment recites that, upon the hearing of plaintiffs’ motion for a summary judgment, plaintiffs stated that they no longer sought judgment against the Fountain and Hotel Supply Company, which had relinquished all rights and claims to properties of the Seymour Bowling Lanes, there is no order relative to a non-suit, and, although plaintiffs stated at the time of said hearing that “summary” judgment was not sought against Brunswick, there is no order disposing of either of said parties or the issues relative to foreclosure and injunction. The judgment concludes with a recital that it is without prejudice to the rights of any party to subsequently litigate any additional matters not precluded thereby. There is no order of severance in the record. The cause of action asserted by plaintiffs against said non-appealing defendants is not shown to be disposed of by said judgment, or by any order in the record. We conclude that the judgment is not final. We have jurisdiction only to dismiss the appeal. Said conclusions are required by the holding of our Supreme Court in Pan American Petroleum Corporations. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200, wherein the court said:

“In our opinion a summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court. Gallaher v. City Transp. Co., Tex.Civ.App., 262 S.W.2d 807 (wr. ref.); Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173 (no writ.) In the absence of an order of severance, a party against whom such an interlocutory summary judgment has been rendered will have his right of appeal when and not before the same is merged in a final judgment disposing of the whole case.”

See also Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 77; Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11, 19; Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199, 200, (Writ Ref.) and International Union of Operating Engineers v. Phillips Petroleum Company, Tex.Civ.App., 341 S.W.2d 662.

The appeal is dismissed.


author: MURRAY, Chief Justice.

text:
    Thomas C. GENTRY, Appellant, v. Archie K. CIOMPERLIK, Appellee.
    No. 14250.
    Court of Civil Appeals of Texas. San Antonio.
    April 29, 1964.
    Werner A. Gohmert, Alice, for appellant.
    Lola L. Bonner, Rockport, for appellee.
   MURRAY, Chief Justice.

Appellant, Thomas C. Gentry, brought this suit against appellee, Archie K. Ciom-perlik, his uncle by affinity, for money in the sum of $10,000.00 had and received, allegedly belonging to appellant, and for an accounting. The trial began to a jury, but after the close of the evidence both parties moved for an instructed verdict in his favor. The court overruled the motion of plaintiff and granted that of defendant. Upon such instructed verdict the trial court rendered judgment that plaintiff take nothing, from which judgment Thomas C. Gentry has prosecuted this appeal.

When Gentry was sixteen years of age he was found to be a delinquent child, by the judgment of the Juvenile Court of San Patricio County, Texas, and his temporary custody was assigned to his uncle Archie K. Ciomperlik, who with his wife resided at Alice, Jim Wells County. At that time Ciomperlik was employed by the Hunt Drilling Company as a driller, and was instrumental in getting a job for Gentry with that Company. Before Gentry was allowed to go to work for the Drilling Company, being then a minor seventeen years of age, Ciomperlik and his wife, Christina N. Ciom-perlik, were required to sign the following affidavit:

RECEIVED NOV 18 1959
“HUNT DRILLING COMPANY.
INC.
Name of Employer
CONSENT TO THE EMPLOYMENT OF
Thomas Chester Gentry (A MINOR)
KNOW ALL MEN BY THESE
PRESENTS:
That we are (I am) the legal parents (legally appointed guardian) of Thomas Chester Gentry, a minor.
That we (I), the undersigned, for the purpose of enabling said minor of the age of 17 years to secure employment with the HUNT DRILLING COMPANY, INC. do hereby agree that said minor may be employed by it in such undertakings and lines of employment and for such wages and compensation as may be agreed upon by and between said minor and said Company, and that said minor may do such work, whether hazardous or not, as said Company may call upon him to do, and, in consideration of his employment by the said HUNT DRILLING COMPANY, INC. we, (I) hereby authorize and empower said Company to pay to said minor all wages or compensation earned by him while in its employ, direct to the said minor, in the same manner in which said Company pays its other employees, and we (I) do hereby release all claims for said wages or compensation.
And we (I), the undersigned, further agree that in all suits and actions which may hereafter be instituted by us (me) or either of us for damages resulting from injuries sustained by said minor while in the employment of said Company, the consent to the employment of the said minor hereby being given, the agreements herein contained, shall constitute a bar to any recovery by us, and may be urged and taken advantage of as such by said Company, and that said Company may further urge and take advantage of, in bar to any such recovery by us, all and singular the defenses which might be urged and taken advantage of by it in bar to a recovery by said minor in any suit instituted on account of such injuries, for the benefit of said minor alone. The purpose and intent of this agreement being, as between us and said HUNT DRILLING COMPANY, INC., to manumit the said minor and authorize and empower him to deal with the said HUNT DRILLING COMPANY, INC., in all and singular, every matter connected with or arising out of his employment, or any accident or injury sustained by him while so employed, in the same manner and to the same effect as though he were of lawful age.
The undersigned acknowledge receipt of notice that HUNT DRILLING COMPANY, INC. provided for payment of compensation under Chapter 179, General Laws, Thirty-third Texas Legislature, commonly known as the Employers’ Liability Act and amendments thereto, and the said Act and •amendments shall be taken and held to be a part of this agreement and in the event that said minor is injured it is agreed that the undersigned shall make no demands against HUNT DRILLING COMPANY, INC. for compensation or damages, but shall look solely to the insurer of HUNT DRILLING COMPANY, INC. for compensation, as is provided in said Employers’ Liability Act.
The undersigned guarantee and represent that the minor herein named is not under 17 years of age, and that he was born on the First day of the month of September in the year of 1952.
Witnesses to signature of parents or guardian:
(Signed) Archie K. Ciomperlik “ Christina N. Ciomperlik Guardians
SWORN TO AND SUBSCRIBED before me the undersigned authority, this 16th day of November, 1959.
(SEAL) /s/ Betty Kelley Betty Kelley, Notary Public Jim Wells County, Texas”

Both parties assume on this appeal that appellee and his wife stood in loco parentis to appellant at the time the above affidavit was executed, therefore, we will here assume that this status existed. Gentry was taken into the Ciomperlik home and treated as though he was a member of the household. Over a three-year period Gentry earned something over $14,000.00 in take-home pay. Checks for his wages were issued in Gentry’s name. Ciomperlik handled all of the checks for the drilling crew and delivered to each his check, but as to Gentry, Ciomperlik would merely show him his check then endorse it himself and deposit it in his bank account. However, Gentry did endorse a few of the checks. •No formal charges were made against Gentry for his room and board, and he was ■given such money as he might need for other expenses. Ciomperlik and his wife watched over Gentry, and under their care he got into no further trouble. At the end of the year Ciomperlik would fill out Gentry’s income tax return, sign it himself and collect whatever refund there was coming, and deposit this sum in his own bank 'account. After about three years Gentry left the Ciomperlik home and instituted this suit to recover $30,000.00.

There can be no question about the fact that the affidavit signed by Ciomperlik and his wife was sufficient, as between Ciomperlik and the Hunt Drilling Company, to emancipate Gentry and relinquish any claim Ciomperlik might have on the wages of Gentry.

The next question is, whether as between Gentry and Ciomperlik there was an emancipation as a matter of law, or only evidence thereof. We conclude that as to this only a fact issue was raised. The provisions of the affidavit are very strong and broad, but, on the other hand, the minor continued to live with the Ciomperliks as a member of their household. No one else was contributing to his care and support; he was supervised by the Ciomperliks and told where to go and where not to go. They furnished him his board, lodging, clothes and spending money. These and perhaps’ other facts raised the fact question as to whether the minor had been fully emancipated, as between himself and the Ciomperliks. Therefore, the trial court erred in granting an instructed verdict and rendering judgment that Gentry take nothing. Furrh v. McKnight, 6 Tex.Civ.App., 26 S.W. 95; Lottinville v. Dwyer, 68 R.I. 263, 27 A.2d 305; Pardey v. American Ship Windlass Co., 19 R.I. 461, 34 A. 737; Francisco v. Benepe, 6 Mont. 243, 11 P. 637.

The judgment will be reversed and the cause remanded for a new trial.


author: WALTER, Justice.

text:
    FRANK SMITH & SONS COMPANY et al., Appellants, v. Raymond LLOYD et al., Appellees.
    No. 3866.
    Court of Civil Appeals of Texas. Eastland.
    March 20, 1964.
    Key, Carr, Carr & Clark, Lubbock, for appellants.
    Park, Hemphill & Adams, Snyder, for appellees.
   WALTER, Justice.

Raymond Lloyd and wife Leta Lloyd and Carl Gray filed suit against Frank Smith and Sons Company, a Texas corporation, and Frank B. Rejeck for damages as a result of an automobile truck collision. The defendants’ pleas of privilege to be sued in McLennan County were overruled. They have appealed contending that plaintiffs failed to show by a preponderance of the evidence that any negligence chargeable to the defendants was a proximate cause of plaintiff’s injuries.

Carl Gray, accompanied by his daughter and son-in-law, Mr. and Mrs. Lloyd, was driving his automobile east on United States Highway 180 about six miles west of Snyder when he collided with the rear of a truck owned by said corporation and driven by Rejeck.

Gray testified that he was driving about twenty or twenty-five miles per hour immediately before the collision; that the truck was stopped on the highway when he hit it; that after the collision he got out of his car and went to the truck and saw the truck driver lying underneath the truck; that the truck driver told him that he was out of the truck at the time of the collision.

Answers of the defendant Rejeck to interrogatories propounded under Rule 169, Texas Rules of Civil Procedure, established that he was employed by the corporation and was in the course of his employment at the time of the collision. In reply to another interrogatory the truck driver said that he was travelling east at about eight to fifteen miles per hour at the time of the collision.

Appellees had pleaded and they introduced evidence that the truck was stopped and parked on the highway at the time of the collision. There was a sharp conflict in the evidence, hut it was the judge’s duty to pass upon the credibility of the witnesses and the weight to be given their testimony and to reconcile such conflicts. We find that appellees established by a preponderance of the evidence that appellants were guilty of negligence in Scurry County and that such negligence was a proximate cause of appellee’s injuries. '

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Melvin STILLPASS et al., Petitioners, v. Charles NIBLACK, County Judge, Boone County, Respondent.
    Court of Appeals of Kentucky.
    May 8, 1964.
    A. J. Jolly, Newport, for petitioners.
    William P. McEvoy, Burlington, for respondent.
   PALMORE, Judge.

. This is an original proceeding by which the landowners in a condemnation suit seek collaterally to prevent the taking’ of their property while they are still litigating the issue of the condemnor’s right to take. The respondent as Judge of the Boone County Court having entered a judgment adverse to their contention, they ask this court to prohibit him from issuing a writ of possession, citing Const. § 110 and RCA 1.420.

It was pointed out in Cunnigan v. Jones, Ky., 371 S.W.2d 624 (1963), Coffey v. Anderson, Ky., 371 S.W.2d 624, 625 (1963), and Howell v. Wilson, Ky., 371 S.W.2d 627 (1963), that a proceeding in the nature of prohibition or mandamus against the judge of a court inferior to the circuit court should be brought in ’the circuit court; After the filing of their petition in this court the petitioners did bring a similar action in the Boone Circuit Court, which denied the relief sought, whereupon the petition in this court was amended to show that fact.

The record does not disclose whether the petitioners have appealed either the county court judgment in the condemnation case or the circuit court judgment in the prohibition case. Certainly, however, prohibition will not lie if adequate relief is available in the condemnation proceeding. If a landowner will suffer irreparable damage by a taking of his property before he is able to secure a judgment of the circuit court on the issue of the condemnor’s right to take, the circuit court has the power to grant injunctive relief in the condemnation proceeding once the landowner avails himself of its jurisdiction by perfecting a timely appeal from the judgment of the county court. Cf. Collins v. Commonwealth, Ky., 324 S.W.2d 406, 409 (1959). Hence the conventional procedure affords an adequate remedy.

The petition for an order of prohibition is denied.


author: DAVIS, Commissioner.

text:
    Omer JONES et al., Petitioners, v. Marlow W. COOK, County Judge, Jefferson County, Kentucky, et al., Respondents.
    Court of Appeals of Kentucky.
    May 8, 1964.
    James E. Thornberry, Louisville, for petitioners.
    Kenneth B. Kusch, Asst. County Atty., Louisville, for respondents.
   DAVIS, Commissioner.

This is an original proceeding in this Court under RCA 1.420 to obtain relief in the nature of prohibition against the respondent Jefferson County Judge. The objective is to enjoin further proceedings in a condemnation suit brought by Jefferson County on the ground the County has no right to condemn the land. We are dismissing this petition because the relief sought, if merited, can and should be obtained by proceeding in the circuit court. Cunnigan v. Jones, Ky., 371 S.W.2d 624; Coffey v. Anderson, Ky., 371 S.W.2d 625; Howell v. Wilson, Ky., 371 S.W.2d 627; Stillpass v. Niblack, Ky., 378 S.W.2d 794.

The cited cases recognize that a circuit court has jurisdiction to entertain a proceeding in the nature of prohibition or mandamus against a judge of a court inferior to the circuit court. CR SI provides that relief heretofore available by these remedies may be obtained by appropriate action or motion in the circuit court without regard to the form of the proceeding.

CR 81 specifically calls attention to injunction procedure (under CR 65), which normally will provide a completely adequate remedy. It affords an avenue for temporary and permanent relief in an orderly proceeding, which if necessary is subject to review in this Court. We will not entertain an original proceeding here where the petitioner has another adequate remedy. Robinson v. Yager, Ky., 344 S.W.2d 610; Cunnigan v. Jones, Ky., 371 S.W.2d 624.

It may be pointed out that an action in the circuit court affords a better remedy for the type of relief here sought in that the real party in interest in the original proceeding under attack (in this case Jefferson County) could be joined as a necessary or proper party under CR 19.01. See Clay, CR 19.01, Vol. 6, Comments 3 and 4 (pages 318 and 319). This would enable such party to defend the action taken, or proposed to be taken, by the judge whose authority is attacked. (Under certain circumstances adequate relief could possibly be obtained by enjoining the adverse party without proceeding directly against the judge.)

Although we are dismissing the petition, since we have heard oral argument and considered the narrow question involved on the merits, we are inclined to express the view that KRS 178.290 should not be construed as prohibiting Jefferson County from condemning petitioners’ property.

The petition is dismissed.


author: CLAY, Commissioner.

text:
    CITY OF PAINTSVILLE, Appellant, v. J. K. BUTCHER, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    W. A. Johnson, Paintsville, for appellant.
    R. B. Harrington, Paintsville, for appel-lee.
   CLAY, Commissioner.

Appellee recovered a $500 judgment against appellant City of Paintsville as damages for the removal of a fence and bushes by the Department of Highways in the reconstruction of a street by the Highway Department. Appellant alleges several grounds for reversal and appellee has failed to file a brief to meet these issues or to defend the judgment.

Under the circumstances we will invoke RCA 1.260 and reverse the judgment. Appellant’s brief reasonably appears to sustain such action on the grounds that (1) the alleged damages arose from acts of the Department of Highways and not those of appellant, (2) the findings of the jury (part of which were set aside by the trial court) did not justify a judgment for appellee, (3) an award of damages could not be made, even if appellant might be liable, without a determination of the right of way line of the street, and (4) the damages appear to be excessive and not based upon any evidence of substance.

The judgment is reversed.


text:
    FIELD ENTERPRISES EDUCATIONAL CORPORATION, Appellant, v. Louise HOPKINS, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Farland Robbins, Mayfield, for appellant.
    Sam Boyd Neely, L. M. T. Reed, Neely & Reed, Mayfield, Charles A. Williams, Paducah, for appellee.
   CLAY, Commissioner.

Appellee plaintiff recovered $2500 damages for the alleged wrongful acts of appellant defendant’s agent who entered her home and removed certain files and sales material belonging to her. Defendant’s brief sets forth eight grounds for reversal, and its “Argument” on all of these points consists of exactly one typewritten page.

Process was served on defendant, a foreign corporation, under KRS 271.610 (2). It is contended the corporation was not subject to suit in Kentucky because it was not doing business in this state. Defendant’s own affidavit shows that it not only employed salesmen in this state but had a “division manager” who maintained an office in Louisville. The corporation was doing business in Kentucky. See Star Elkhorn Coal Co. v. Red Ash Pocahontas Coal Co., D.C., 102 F.Supp. 258; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057.

Defendant contends the complaint did not allege that defendant’s agent was acting within the scope of his authority. This is implicit in the allegation that defendant “by and through its agent” committed the alleged wrongful acts. In any event, the proof established the fact.

It is suggested the acts of defendant’s agent were criminal in nature, for which the corporation could not be responsible. Assuming the acts may be characterized as crimes, they were also torts, for which the corporation could be civilly liable.

Defendant contends the damages were excessive, but we do not find them so under the pleading and proof.

Other contentions are made which are unsupported by explanation or argument and in which we find no merit.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    John J. LYONS, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    John J. Lyons, pro se.
    Robert F. Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

John J. Lyons appeals from a denial of his petition for habeas corpus. He alleged that he was illegally restrained in the Ed-dyville penitentiary because of lack of extradition from the State of California.

By his petition Lyons alleges that he is under sentence to serve twenty-one years’ imprisonment; that while he was serving his sentence at the LaGrange reformatory he was transferred to the Central State Hospital for treatment; that while there he escaped; and that he was captured in California and returned to the Eddyville penitentiary without extradition proceedings. Petitioner was returned under the provisions of the “Mental Health Interstate Compact.” KRS 210.520.

As an escaped convict, petitioner was a fugitive from justice. Gray v. Connors, 285 Ky. 229, 147 S.W.2d 384. His status is less favorable than that of the petitioner in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541, who had been returned by force to Michigan from Illinois for trial. In denying habeas corpus in an attack on his conviction, the Court held:

“There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”

See also Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124, 165 A.L.R. 932 (1946), annotation following at 165 A.L.R. 947; and People v. Ramsden, 36 Misc.2d 345, 232 N.Y.S.2d 633 (1962).

This is in accord with the rule stated in Wharton’s Criminal Law and Procedure, Volume 4, Section 1675, page 409, as follows :

“The regularity of extradition proceedings can be attacked only in the asylum state; and after an alleged fugitive has been delivered into the jurisdiction of the demanding state, such proceedings cannot be questioned on habeas corpus.”

Petitioner does not question the legality of his conviction and sentence under which he is confined. Under the authority cited, he will not be heard to question the means by which he was returned to such confinement. 25 Am.Jur., Habeas Corpus, Section 71, page 198.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF WELFARE, DIVISION OF CORRECTIONS et al., Appellants, v. Tommie STEVENS, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellants.
    Bruce R. Hamilton, La Grange, for appel-lee.
   WILLIAMS, Judge.

The Oldham Circuit Court sustained ap-pellee’s petition for habeas corpus on the ground there was no valid judgment sentencing him to the Kentucky State Reformatory. The Commonwealth has appealed, alleging first that RCr 11.42 has supplanted habeas corpus as the method to obtain post-conviction review, and secondly, that the judgment is not void.

The appellee was indicted in Pulaski Circuit Court and charged with two violations of the local option laws. On the first indictment he entered a plea of not guilty, was tried by a jury, found guilty, and his punishment fixed at two years in the penitentiary. He entered a plea of guilty on the second indictment and in that case was given two years in the penitentiary. To avoid repetition, we shall confine ourselves to the proceedings surrounding the first indictment.

On May 18, 1962, the following order, styled “Verdict and Judgment,” was entered in the Pulaski Circuit Court criminal order book:

“This day this cause came on for trial. Came the defendant Tommie Stevens by counsel Hon. H. K. Spear waived arraignment and entered a plea of not guilty to the above charge. The following jury was empaneled and sworn to try the case:
Oscar Whitson Martha Whiles William Burton Virgil Howard Macie Wilson E. E. McBride Richard Adams Hury Trimble Shadrack Blevins Willie McDaniel Lola Floyd Opal Spears
“The Comth’s Attorney read the indictment and stated the plea of the defendant to the jury, and the jury after hearing the evidence, and instructions of the Court retired to their jury room to deliberate, and after due deliberation returned into open court the following verdict: ‘We the jury find the defendant guilty as charged and fix his punishment at 2 years in the Pen. /s/ Willie McDaniel.’
“It is further ordered that the defendant execute a Peace Bond in amount of $1,000 if said case is appealed.
“The defendant was placed in the custody of the jailer to await the sentencing of the Court.”

On the same day a “Judgment of Conviction” was entered which recites as follows:

“The defendant was this day brought into Court, and waiving the three day notice and being informed of the nature of the indictment, on the charge of LP (Local Option) Two Previous Convictions, plea and verdict was asked if he had any legal cause to show why judgment should not now be pronounced against him; and none being shown, it is adjudged that the defendant be taken by the Sheriff of Pulaski County to the Jail of Pulaski County and from there by the Sheriff of said County to the State Penitentiary at LaGrange, and there confined at hard labor for the period of 2 years.”

Motion for a new trial was overruled on the same day.

Thereafter, on May 31, 1962, an order was entered sustaining appellee’s motion to reconsider his motion for a new trial. On the same date the following order was recorded :

“This matter of the two above indictments came on before the Court; it appearing that in each of the above indictments the defendant received sentence of two (2) years on each, and that both of these convictions are now pending before this court, on the defendant’s motion and grounds for a new trial, and on each of these motions the court has taken time. Now by agreement of counsel for the Commonwealth the defendant personally and by counsel and by the' consent and approval of the court, it is agreed and so ordered that these motions and grounds for a new trial shall be allowed to pend, unacted upon and that the defendant will take his family, and remove himself and family from the State of Kentucky, for a period of 4 years from this date, and shall the defendant at any time during said period return to the State of Kentucky, his motion and grounds for a new trial in each case shall be overruled and he shall be promptly committed to the Kentucky State Reformatory to serve both of these periods of convictions which shall run consecutively. Likewise if during this period of four (4) years from this date this defendant shall be guilty of a violation in any of the penal laws of this Commonwealth, these two sentences shall likewise be placed into immediate effect, as set forth above herein. If at the end of said four (4) year period this defendant shall have not violated either of the provisions set out above herein, that is by returning to the State of Kentucky or violating any of the penal laws, then his motion and grounds for a new trial in each prosecution shall be sustained and these charges thereupon be dismissed against this defendant. This order was read to the defendant personally and to his counsel and both of them agreed to the contents thereof.”

Then, on August 22, 1962, the following order was entered in the order book:

“It appearing that the order postponing sentence in Orders in Indictments #2080 and 2052, wherein judgments of conviction against the defendant Tommie Stevens and ruling on Motion and Grounds for New Trial were postponed pending the Defendant’s promise to take his family and leave Kentucky for four years, and keeping said promise, and whereas he has failed and refused to obey said order and leave the State of Kentucky with his family, it is now ordered by the Court that pursuant to order of May 31, 1962, which was concurred in by defendant and his attorney H. K. Spear, it is now ordered by Court that motion and grounds for a new trial be overruled and defendant in person and by aforesaid order having waived an appeal said judgments of conviction are put in full force and effect.”

And on that date another “Judgment of Conviction,” similar to the May 18 order, was entered.

The two orders entered on May 18, the day of the trial, set forth the plea, the verdict, adjudication and sentence. The May 31 order was entered during term time and was an attempt to place the appellee on probation. A judge may set aside a judgment of sentence and place a defendant on probation during the term of court when trial was had. Commonwealth v. Kazee, Ky., 252 S.W.2d 20 (1952). The Judge of the Oldham Circuit Court apparently concluded that the orders entered on May 31 were adequate to set aside the sentence and probate appellee. We cannot agree.

The attempted probation, if it can be called that, does not follow the form prescribed by statute. KRS 439.260. But regardless of that, the order delaying action on the motion for a new trial, contingent on removal of appellee from this State, is void. Vickery v. Lady, Ky., 264 S.W.2d 683 (1954). In Bax v. Fletcher, Ky., 261 S.W.2d 662 (1953), we said:

“ * * * Obviously, a Judge cannot in law or in fact withhold an action which, so far as the Judge is concerned, has been completely executed. Having formally sentenced the defendant to a term in the penitentiary, the Judge had no power or authority to withhold sentence without setting aside the judgment of sentence. This would constitute an exercise by the Judge of executive clemency, a power not vested in Circuit Judges. * * * ”

The orders entered in the Pulaski Circuit Court on May 18, 1962, are now and have always been in full force. The orders entered on May 31, 1962, attempting to delay action taken in the May 18 orders, are now and have always been void. The appellee has been legally convicted and sentenced. It follows that the petition for habeas corpus should have been denied.

Having handled the case in this manner, it is unnecessary to consider the applicability of RCr 11.42.

Judgment reversed.


author: MOREMEN, Judge.

text:
    Verlin BURCHETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.

      H. K. Spears, Somerset, for appellant.
    Robert F. Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., John G. Pratcher, Commonwealth’s Atty., Somerset, for appellee.
   MOREMEN, Judge.

Verlin Burchett and Louis Todd were tried together under an indictment for storehouse breaking. They were found guilty and sentenced to two years’ confinement in the penitentiary. Burchett has appealed.

During the night of July 17, 1963, á storehouse belonging to Ruby Chestnut was broken into and á large quantity of merchandise was stolen. The circumstances, which pointed to the guilt of Burchett and Todd and perhaps' another, were as follows :' A merchant policeman' testified that on the night of the entry he saw and talked to Todd in front of the storehouse. He also saw Burchett and another man about two hundred yards away standing beside a truck which had its hood up. David Taylor, a police officer of the city of Somerset, and his partner, Earl Marcum, saw Todd in front of the storehouse, and questioned him. When asked why he was there, Todd said he had been to see a girl friend up on the hill. Taylor also testified that he saw the truck with the hood up not far away. Policeman Marcum testified that he too talked to Todd, asked him why he was sweating in the cool of the morning and Todd replied.that he had been to see his girl friend and had been walking fast to get home. They left Todd, went over and talked to the men by the pick-up truck and asked them if anything was wrong. They said “no,” that their sister lived in the house before which the truck was parked. This occurred about five a. m. The officers went back to town. The next day, Catron, chief 'of police, received a report that Chestnut’s grocery had been broken into. He made an investigation and found part of the stolen property (which was positively identified) at'the home of Henry and Bernice Powell. He also found some of the merchandise at the home of Mrs. Powell’s sister, Bethel Epperson, where the truck had been parked on the night the storehouse was entered. The proof developed that both Burchett and Todd had been staying at the Epperson home. Mrs. Powell testified that on the night of the break-in Burchett and Todd had brought various stolen items to her home. Neither Burchett nor Todd offered any evidence in their behalf.

Appellant insists that the instructions by which the case was submitted to the jury were prejudicially erroneous. The instructions given were:

1.

“If thé jury shall believe from the evidence beyond a reasonable doubt 'that in Pulaski County and before the finding of the indictment that the defendants, Louis Todd and Verlin Burchett or either of them wilfully and feloniously broke and entered into the storehouse of Mrs. Ruby Chestnut, with the felonious intention of stealing therefrom then the jury will find the defendants guilty as charged in the indictment and fix their punishment at confinement in the State Penitentiary for a period of not less than one year or more than five years.

2.

“The words ‘felonious’ or ‘feloniously,’ as used in these instructions mean proceeding from an evil heart or purpose.

3.

“The jury may find both of the defendants guilty or both of them not guilty, they may find one of the defendants guilty and one of them not guilty but if upon the whole case the jury have a reasonable doubt of the defendants or either one of them having been proven guilty they will find such defendant or defendants not guilty.”

It is argued that instruction No. 1 was erroneous in that it told the jury if it believed from the evidence that Louis Todd and Verlin Burchett, or either of them, broke into the storehouse, then the jury could find both of them guilty. It is suggested that the instruction is confusing and misleading because the jury, under that instruction, could convict both of the accused men if either one of them had actually broken into the grocery. We believe, however, that this ambiguity was correctly resolved by instruction No. 3 which states that the jury could find both of the defendants guilty or both of then not guilty or could find one of the defendants guilty or one of them not guilty. In light of that admonition, certainly there could be no misunderstanding as to the meaning of the words used in instruction No. 1. In Stanley’s Instructions to Juries, Volume 3, § 798, page 39, it is said:

“The purpose of instructions being to submit the law applicable to the facts in a form which is capable of being clearly and easily understood by the jury, if when read together and considered as a whole their purpose is achieved, instructions are sufficient.
“It is not the use of the precise word which determines whether an instruction is correct. It is the idea, the law, embraced and expounded by the words. If in a reasonably intelligible way, to a reasonably intelligent mind, the court has given the whole law, the judgment will not be reversed for technical, narrow or linguistic complaints. The objection must be real, not fanciful.”

We are of opinion that the jury was not misled by these instructions.

Appellant insists that an instruction on aiding and abetting should have been given, and relies upon Broughton v. Commonwealth, 303 Ky. 18, 196 S.W.2d 890. In that case Broughton remained at the wheel of a car while two other men entered an auto supply store and stole ten automobile tires. The Court held that where the evidence conclusively showed that the accused participated in a crime only as an aider and abettor, the Court should instruct the jury upon that theory alone. The Court also stated that when the evidence is conflicting as to the accused’s role, as principal or as aider and abettor, it is proper to instruct on both theories.

In the case at bar, however, there was no evidence that Burchett acted as an aider or abettor. If such proof had been introduced, an instruction on that theory would have been proper, but because such proof is lacking the issue is not in the case.

The evidence of the circumstances developed by the Commonwealth pointed unerringly to the guilt of these men, and we think it was sufficient to sustain the conviction.

Judgment affirmed.


author: DAyiS, Commissioner.

text:
    Douglas KOONZE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Douglas Koonze, pro se.
    Robert F. Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAyiS, Commissioner.

Douglas Koonze seeks reversal of the order of the Hopkins Circuit Court which denied his RCr 11.42 motion to vacate a felony conviction rendered against him in 1958. Proper understanding of the questions presented requires this resume of the factual background:

In October, 1958, the Hopkins County grand jury returned two indictments against Douglas Koonze, present appellant. Two other persons were jointly indicted with Koonze in each of the indictments. The indictments were designated on the docket by numbers 5976 and 5977, respectively. No. 5976 charged unlawful opening of a safe containing money and other things of value; No. 5977 charged storehouse breaking.

The records of Hopkins Circuit Court reflect that one of the three defendants named in the two indictments moved for separate trial, as was authorized by then effective Criminal Code of Practice, § 237. (This Criminal Code provision is supplanted by RCr 9.16.) However, this appellant and his other co-defendant made no motion for severance. The appellant was represented by his personally retained attorney at the 1958 trial of the two indictments. The record reflects that he entered a guilty plea to each indictment, and agreed that the two charges should he heard, along with those against his co-defendant, by the same jury at the same time. Accordingly, the jury returned separate verdicts as to each indictment, assessing punishment at five years in the penitentiary against each defendant on indictment No. 5976 and one year on indictment No. 5977.

The trial court sentenced appellant to imprisonment for five years pursuant to the verdict under indictment No. 5976. On the same date, the court sentenced appellant to imprisonment for one year under indictment No. 5977. However, in the order relating to the sentence of one year, this language appears:

“At the termination of #5976 he will begin his sentence of one (1) year on #5976.” (Emphasis added.)

. This discrepancy is made the ground of serious contention by appellant that he may not be required to serve the one year because of failure of the quoted order to comply with then Criminal Code of Practice, §§ 284 and 288.

A hearing was afforded appellant in the Hopkins Circuit Court, pursuant to his RCr 11.42 motion. Upon the appellant’s request, counsel was appointed for him and represented him at the hearing on the motion. The trial court made findings of fact pursuant to the hearing, in pertinent part as follows:

“8. That the two sentences against the Movant were to run consecutively and that the sentence in #5977 was made cumulative to the sentence in #5976 by use of the following term: ‘At termination of #5976 he will begin his sentence of one (1) year on #5976.’
“9. That the Judgment in Order Book 29, page 584, in which the co-Defendant of the Movant, Albert Chandler Walker, was sentenced to a one (1) . year term of imprisonment for storehouse breaking contains the following language: ‘At termination of #5976 he will begin his sentence of one (1) year on #5977.’ ”
“11. That although the ‘#5976’ which concludes the sentence quoted in Finding 8 above is erroneous, it is obviously a clerical error; and that additionally, the intent of the Court is clearly shown if the words ‘on #5976’ be eliminated completely as surplusage.”

Based upon these findings of fact the trial court concluded that the quoted portion of the sentence order in No. 5977 contained a clerical misprision in providing that the appellant should begin the term of one year on No. 597b after termination of No. 5976. We agree. The record contained abundant bases for the court’s finding of fact, and the findings warrant the legal conclusions. See Hatzell v. Dover, 208 Ky. 149, 270 S.W. 723.

Appellant asserts here that he was “forced” into a joint trial with Albert Chandler Walker, one of his co-defendants. To this he adds that Walker was “a habitual criminal, a man despised throughout the entire county.” The record does not support these assertions by appellant. Clearly, he had no constitutional right to a separate trial; his waiver of it, and his complete failure to adduce evidence that he was “forced” into anything render his claims here merit-less. The right to separate trial as afforded by Criminal Code of Practice, § 237 (now superseded by RCr 9.16) was not a common law right, nor is it one guaranteed by any constitutional provision. It was waived here. Roberson’s New Kentucky Criminal Law & Procedure, 2d Ed., § 1893, page 2010.

Finally, appellant asserts that he was denied “due process” and “equal protection” as constitutionally guaranteed by the 14th Amendment of the United States Constitution. These, of course, are serious and valid grounds of attack — but they require some showing to substantiate their availability. No such showing is here presented. We can perceive no particular in which this appellant has been denied his full opportunity to fundamental fairness.

The judgment is affirmed.


author: A. MURRAY BEARD, Special Commissioner. PALMORE, Judge

text:
    Garrett TOWNSEND et al., Appellants, v. Dorsie CABLE, Appellee.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Rose & Short, Beattyville, for appellants.
    Shumate & Shumate, Irvine, for appel-lee.
   A. MURRAY BEARD, Special Commissioner.

In this action both the appellants and the appellee are seeking to quiet title to their respective alleged ownership of a one-half interest of the oil and gas underlying a tract of land, the surface of which, together with the other one-half interest in the oil and gas is owned by the appellee Dorsie Cable. The parties are claiming through a common source of title, the facts are admitted, no proof was taken, and the trial court decided in favor of the appellee on his motion for a summary judgment. This appeal is from that judgment.

Appellee acquired title to the tract of land with no reservation as to mineral rights, from Crit Cable and wife by deed dated February 2, 1945. Crit Cable had acquired title from Fielden Townsend and wife by deed dated January 24, 1916. In this deed, in a separate paragraph following the description of the land conveyed, there is contained a “reservation” which is the basis of this lawsuit. It is as follows:

“There is reserved out of the foregoing tract of land for the use and benefit soly (sic) of Jesse Townsend one half interest of all the oil and gas to dispose of at his will.”

Jesse Townsend’s name does not appear in any of the other clauses of the deed, thus showing him to be a complete stranger to it.

According to the pleadings, the interest acquired by Jesse Townsend by virtue of the foregoing reservation was recognized, and oil royalties were paid him by the purchasing pipeline company until he sold his interest by deed from him and his wife to R. R. Adams dated April 4, 1923. R. R. Adams, in turn, by deed dated May 4, 1925, conveyed the interest to Crit Cable, owner of the surface, and the other one half interest in the oil and gas. Crit Cable conveyed the property to appellee as aforesaid.

The record does not show whether royalties were paid to R. R. Adams or to Crit Cable from the disputed one-half interest, but it does show that at the time of the filing of this action, Crit Cable and Fielden Townsend, predecessors in title to the present claimants, were both deceased. The respective dates of death, however, are not given. It further shows that sometime subsequent to the decease of Fielden Townsend, the appellants, who are the heirs of Fielden Townsend, leased the disputed interest to Ashland Oil and Transportation Company and have been receiving royalty payments from it.

The basis of the claim of appellants to the disputed interest is the long recognized rule that “words of exception or reservation are not words of grant and are ineffective to convey á right or interest to a stranger to a deed”.' They contend that under the rule no title to the interest passed to Jesse Townsend, but remained in Field-en Townsend as a reservation to himself, and since he died intestate, his heirs, the appellants, inherited it. Many Kentucky cases supporting the rule are cited in appellants’ brief. See also the exhaustive annotation on the subject in 88 A.L.R. 2d 1199.

The appellee contends he is the owner of the interest in one of three ways, but it seems obvious his title is good only if some estate was created in Jesse Townsend by the deed of January 24, 1916 from Fielden Townsend to Crit Cable. While the judgment of the trial court did not state which of the contentions of the appellee was being sustained, apparently the decision was based upon the reasoning set forth in Combs v. Hounshell, Ky., 347 S.W.2d 550.

The appellants argue that the trial court,' in rendering judgment for the appellee, did so through a misunderstanding of dictum appearing in the concluding paragraphs of that opinion. It is true that the Hounshell case may be distinguished from the present one in that it was held that an actual conveyance of a remainder interest was made and the question of a “reservation” or “exception” was not presented for decision.

This Court, however, in the opinion (even if it was dictum as contended by appellants) traced the ancient and archaic rule of “reservations” and “exceptions” from its feudal origin down to date, and concluded with these words (page 555 of 347 S.W.2d) :

“So in conclusion we must concede that the distinction between a ‘conveyance’ to a third party and a ‘reservation’ in his favor is tenuous and artificial and has long outlived the reason for its existence in the first place. * * * In a future case involving what is intended to be a conveyance over of some interest such as an easement, or even a life estate, but is in-artfully couched in terms of reservation or exception in favor of the third party, it may be proper that we consider abolition of the distinction, * *

That future case is now before the Court and the question of upholding’ or abolishing’ the rule is presented for decision.

We have no hesitancy in abandoning this archaic and technical rule. It is entirely inconsistent with the basic principle followed in the construction of deeds, which is to determine the intention of the grantor as gathered from the four corners of the instrument. Forrest v. Jones, 311 Ky. 830, 226 S.W.2d 10; Gabbard v. Short, Ky., 351 S.W.2d 510. Technicalities should be disregarded where the intention is clear. Long v. Madison Coal Corporation, 125 F.Supp. 937. Substance rather than form controls. Wilkerson v. Young, 285 Ky. 94, 147 S.E.2d 53.

The ultimate question is whether a deed provision in favor of a stranger, which clearly shows an intention to create in him an interest or right in land, may take effect according to its terms even though the deed expresses the intention in the form of a reservation rather than a grant or conveyance. Obviously the grant- or did- not use the term “reserved” as having some technical legal significance which would defeat the very purpose of the provision. In the deed before us Jesse Townsend acquired title to the one half interest the grantor clearly intended to vest in him. The trial court correctly decided this issue in entering a judgment for appellee.

Cases inconsistent with this opinion are expressly overruled.

It is recommended the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.

PALMORE, Judge

(dissenting).

When a rule of property is abandoned, I believe that past transactions entered into in reliance upon it should be excluded from the effect of the opinion, as in the cases of Payne v. City of Covington, 276 Ky. 380, 123 S.W.2d 1045, 122 A.L.R. 321 (1938), and Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1 (1948). Though such an opinion may theoretically constitute nothing more than dictum, nevertheless it has the useful effect of providing guidance for future transactions without and ex post facto divestiture of rights heretofore considered to have been settled.

In this particular case I am concerned not so much for the Fielden Townsend heirs, who claim a windfall by virtue of an absurd legal technicality that at long last is being recognized as such, but for their lessee, which has invested its money in reliance on past assurances by the court that this technicality was indeed the law. It seems to me that the administration of justice ought always to be recognized as an intensely practical matter, not a wonderland of witchcraft and magic words. If there be those who would say a prospective opinion smacks of “legislation,” what other and more euphemistic term might be chosen to describe the manner in which the whole body of the common law has developed? It is just a matter of semantics. But no matter what label we put on it, when a court decides it can no longer live with a principle on which it knows innocent parties have relied in the investment of their money, practical justice requires their protection. This can be accomplished only if the court, recognizing that although technically its decision in one case is not the law in another it customarily will be relied upon as if it were, is willing to subject its common law jurisprudence to the spirit of Const. § 19.


text:
    Julius V. NEWMAN, Petitioner, v. Hon. J. Miles POUND, Judge, Jefferson Circuit Court, Second Division, Respondent.
    Court of Appeals of Kentucky.
    May 8, 1964.
    Julius V. Newman, pro se.
    Carl C. Ousley, Jr., First Asst. Commonwealth Atty., Louisville, for respondent.
   CLAY, Commissioner.

This is an original proceeding seeking an order of mandamus against a Judge of the Jefferson Circuit Court to require him to furnish petitioner, proceeding in forma pauperis, a complete record and transcript of his trial held in June 1960. Respondent denied petitioner’s motion for this transcript on March 9, 1964.

Petitioner was convicted of armed robbery in the Jefferson Circuit Court on June 8, 1960, and was given a life sentence. The petitioner states he was denied a right of appeal because he was denied the records. Since the time for taking an appeal has long since expired, furnishing him the records in the case could serve no purpose with respect to prosecuting an appeal.

The petitioner alleges he is now “in the process of prosecuting a legal action” and that to prosecute such an action he needs these records. Such legal action is not identified" and there is no suggestion that he has been denied any rights in such action.

The petition appears as nothing more than a fishing expedition to obtain records from which petitioner might possibly dredge up some ground upon which to initiate proceedings attacking his judgment of conviction. It presents no grounds to justify the granting of the extraordinary relief prayed, and perhaps should have been dismissed as frivolous.

The order of mandamus is denied.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General, Appellant, v. The MONROE COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    May 8, 1964.

      John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., Frankfort, for appellant.
    'Charles E. Lester, Lester & Riedinger, Newport, for appellees.
   STEWART, Judge.

This is an appeal from an order of the Campbell Circuit Court, dismissing appellant’s complaint and amended complaint whereby appellees’ property was sought to be escheated.

The attorney general, in his capacity as chief law officer of the Commonwealth, filed his complaint on November 28, 1961, alleging in substance that the Monroe Company, a Delaware corporation, received title to certain property in Campbell County by deed dated April 15, 1950, from the Rendezvous Company, which latter company was dissolved on April 19, 1950; that the Monro'e Company was never authorized to do business in Kentucky because of its failure to comply with KRS 271.055(3) and 271.385(2); that such lack of authorization voided the Monroe Company’s title to the property and left it in the Rendezvous Company; that the effect of the dissolution of the Rendezvous Company was to render it nonexistent and, in consequence, to cause its property to be forfeited to the state. See KRS 393.020. The holders of a mortgage on the property, Harry Dennert and William J. Beckmeyer, also were named as parties defendant.

The complaint asked that the court bestow title to the property in the state, that the Monroe Company be permanently enjoined from engaging further in any business activity in this state until it had legally qualified to do so, and that the relator have all other and proper relief.

Appellees filed a motion to dismiss on December 12, 1961, on the grounds that (1) the commissioner of revenue, and not the attorney general, was the proper party to institute an action to escheat the property involved; and that (2) the complaint did not state facts sufficient to support or constitute a cause of action.

On December 22, 1961, appellant filed a response to the motion to dismiss, and also an amended complaint. The latter pleading noted that on December 21, 1961, the Monroe Company complied with KRS 271.-055(3) and KRS 271.385(2) ; reiterated the allegations made in the original complaint; and further alleged that, having done business in this state while prohibited from so doing, the Monroe Company, and each of its officers, “are subject to the penalties provided for in KRS 271.990 and should be made parties defendant for the purpose of requiring them to show why they should not be so penalized.”

The prayer of the complaint asked that the officers of the company be made parties defendant; that the title to the property be vested in the state; and that the Monroe Company and each of its three officers be penalized $1000 for doing business in Kentucky in violation of the two foregoing statutory provisions.

The trial court dismissed the complaint and amended complaint, finding:

(1) The legal proceeding to enforce forfeiture of or to escheat appellees’ property to the state, as shown by KIRS 393.180, should have been instituted on relation of the commissioner of revenue by the county attorney of Campbell County.

(2) Since it appears from the amended complaint that the Monroe Company is now qualified to do business in the state, the prayer in the original complaint for an injunction has become moot.

(3) Under KRS 69.010 and the holding in Commonwealth v. Euster, 237 Ky. 162, 35 S.W.2d 1, the Commonwealth’s attorney, not appellant, is the proper party to invoke the penalty provisions set out in KRS 271.990 against the Monroe Company and its officers.

The finding of the trial court was in line with the argument presented by ap-pellees in circuit court and is their argument on this appeal.

Appellant takes the position that this is not an escheat proceeding and therefore the commissioner of revenue is not the proper party to prosecute it. Rather it is a suit brought by him as chief law officer of the Commonwealth to test the power of the Monroe Company to hold real property in Kentucky and to exact appropriate penalties under KRS 271.990 for its omission to qualify to do business, as required by law. The allegation as to escheat, appellant contends, was merely inserted to show one possible outcome of the suit but is not its primary object.

KRS 271.055 (3)'requires a'foreign corporation, but not a foreign insurance company, in order to do business in this state, to file a certified copy of its articles of incorporation, together with all existing and subsequent amendments, in the office of the secretary of state; and KRS 271.-385(2) provides that a foreign corporation, but not a foreign insurance company, carrying on business in this state, shall also at all times have an office in this state and an authorized agent upon whom process can be served, the location of the first and the name and address of the second to be designated on a statement filed with the secretary of state.

A foreign corporation, or any of its officers, directors or agents who knowingly participate in the act, “for each offense” may be fined from $100 to $1000 for failing to conform to the above two subsections. See KRS 271.990. Formerly, a foreign corporation which had not complied with these two provisions could not enforce the terms and conditions of any contract executed in this state in the course of its business. See Oliver Co. v. Louisville Realty Co., 156 Ky. 628, 161 S.W. 570, 51 L.R.A.,N.S., 293, and Fruin-Colnon Contracting Co. v. Chatterson, 146 Ky. 504, 143 S.W. 6, 40 L.R.A.,N.S., 857. However, in Williams v. Dearborn Truck Co., 218 Ky. 271, 271 S.W. 388, decided February 15, 1927, it was held that Kentucky statutes which were, before that date, construed to render the contracts of noncomplying corporations void would not be so interpreted thereafter.

We know of no case, nor have we been cited any, which holds that the failure or refusal of a foreign corporation to meet the requirements of KRS 271.055(3) or KRS 271.385(2), subjects that corporation’s property to forfeiture or escheat. It appears to us the extent of the punishment that may be imposed upon such a corporation, for a violation of these provisions, is to exact the penalties provided by KRS 271.990.

Appellant in its complaint sought to es-cheat appellees’ property under KRS 393.-020, which reads:

“If any property having a situs in this state has been devised or bequeathed to any person and is not claimed by that person or by his heirs, distribu-tees or devisees within eight years after the death of the testator, or if the owner of any property having a situs in this state dies without heirs or distributees entitled to it and without disposing of it by will, it shall vest in the state, subject to all legal and equitable demands. Also, any property abandoned by the owner, except a perfect title to a corporeal hereditament, shall vest in the state, subject to all legal and equitable demands. Any property that vests in the state under this section shall be liquidated, and the proceeds, less costs, fees and expenses incidental to all legal proceedings of the liquidation shall be paid to the department.” (“Department” means the department of revenue.)

Appellant’s theory is that, as the Monroe Company had not qualified to carry on business in this state, the title to any property undertaken to be conveyed to it did not legally vest; and that, since the Rendezvous Company was dissolved four days after it attempted to transfer the property to the Monroe Company, the Rendezvous Company ceased to exist in Kentucky or elsewhere as a corporate entity, with the result that the real estate it held in this state no longer had a legal owner. Also, appellant, claiming KRS 393.020 applies to a corporation as well as a natural person, argues that the property of the Monroe Company should be considered abandoned, because it has become devoid of ownership, and that the title to it should be adjudged to escheat to the Commonwealth, as provided by KRS 393.020. We need not pass upon this contention, however, as we are of the opinion this case should be disposed of on other grounds.

KRS 393.180 provides that an action to recover any sum due the state under KRS 393.020 shall be instituted on the relation of the commissioner of revenue, by the county attorney of the county in which such property is located, after the approval by the commissioner “of the petition and the necessary pleadings.”

However, relying upon KRS 271.590, appellant contends that, in essence, the object of this suit is the revocation of the Monroe Company’s corporate powers. We do not agree. The allegations embracing the relief sought are substantially a haec verba reiteration of KRS 393.020. Then, too, the prayers of the complaint and of the amended complaint indicate beyond any doubt that it is an action to escheat ap-pellees’ real estate.

We therefore conclude the attorney general was not the proper party to file this suit.

As an adjunct to the suit’s primary purpose, namely, to escheat appellees’ property, appellant is also attempting to invoke the penalties provided for in KRS 271.990. Such a proceeding to recover the fines under the statute is penal, rather than criminal, in nature, so that no indictment is required and the case is practiced under the civil rules. However, it appears to have been settled in Commonwealth v. Grand Central Building & Loan Ass’n, 97 Ky. 325, 30 S.W. 626, which was another case where the attorney general undertook to recover the same penalties against a corporation located in Campbell County that this officer was not the proper party to conduct a penal prosecution of this kind; but that such was the duty and responsibility of the Commonwealth’s attorney of the Campbell Circuit Court. See also Commonwealth v. Euster, 237 Ky. 162, 35 S.W.2d 1.

Wherefore, the judgment is affirmed.