author: PER CURIAM.

text:
    In the Matter of the ESTATE of Ethyle BOEVING, an incompetent. William R. Boeving, Guardian, Appellant.
    No. 8309.
    Springfield Court of Appeals. Missouri.
    Feb. 18, 1965.

      Gilbert D. Stephenson, Kennett, for guardian-appellant.
    George R. Wilhoit, Jr., Poplar Bluff, amicus curiae.
   PER CURIAM.

This is an appeal by William R. Boeving (hereinafter referred to as the guardian) from the judgment of the Circuit Court of Butler County entered on October 14, 1963, which removed Boeving as guardian of the person and estate of his mother, Ethyle Boeving, an incompetent (hereinafter referred to as the ward).

We first inquire into our appellate jurisdiction, as is our duty even though it be not challenged by the parties. Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(2); Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904 (1). The inventory and appraisement of the ward’s estate included realty valued at $47,275 and personalty valued at $68,549.-51; and, in the guardian’s second annual settlement filed during the latter part of May 1963 (but not approved by the probate court), shortly before institution of the instant proceeding to remove the guardian, he charged himself with personalty valued at $67,318.40. However, in a proceeding such as this, “the amount in dispute” for appellate jurisdictional purposes [Art. V, Sec. 3, Const, of 1945, 2 V.A.M.S.; Sec. 477.040] is not the value of the ward’s estate but the value of the office of guardian, to wit, the fees or compensation to which the removed and appealing guardian would be entitled for subsequent services as such. The compensation of a guardian is such “as the court shall deem just and reasonable” [Sec. 475.265], and nothing in the instant record indicates the compensation which the instant guardian would receive. The appellate jurisdiction of our Supreme Court is limited [Dunnegan v. Gallop, Mo., 369 S.W.2d 206, 208(1); State on Inf. of Anderson ex rel. McNutt v. Northup, Mo., 367 S.W.2d 512, 515(10)] and, to be invoked, must be shown affirmatively by the transcript on appeal. Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390, 393(3); State ex rel. State Highway Com’n v. Schade, Mo., 265 S.W.2d 383, 384(2). On the record here presented, we are not ousted from our general appellate jurisdiction. In re Adelman’s Estate, Mo., 370 S.W.2d 296, 297(1); In re Jackson’s Will, Mo.App., 291 S.W.2d 214, 218(2-4).

Upon his petition [Sec. 475.060] averring, inter alia, that the ward’s husband and former guardian had died and that the ward then was confined in a hospital at Poplar Bluff, and upon approval of his guardian’s bond in the penal sum of $80,000 [Sec. 475.100], letters of guardianship were issued to William R. Boeving, the guardian herein, by the Probate Court of Butler County on May 10, 1961.

On July 30, 1962, the guardian filed in the probate court his first annual settlement covering the period to May 31, 1962, in which he reported (a) items of income aggregating $41,278.44 (including allowances of $18,900 from the estate of the ward’s deceased husband, proceeds of $11,606.83 from insurance policies on his life, farm rents of $4,918.51, stock dividends of $4,-363.80, social security payments of $1,464.-30, and a hospital refund of $25) and (b) items of expenditure aggregating $26,741.-90 (including $5,000 to the two Poplar Bluff attorneys, one of whom was the probate judge’s son, then representing the guardian, forty-six other items in excess of $100 each, and innumerable smaller items). The first annual settlement was approved on the day it was filed, i.e., on July 30, 1962. On August 2, 1962, the penal sum of the guardian’s bond was reduced from $80,000 to $60,000.

On or about October 8, 1962, the probate court entered an order appointing Joseph L. Smith of Kennett, Missouri (elsewhere in the transcript identified as a C.P.A.), as “cosigner” with the guardian of checks drawn on the ward’s account.

On or about May 22, 1963, the guardian filed in the probate court his second annual settlement covering the period from May 31, 1962, to May 6, 1963, in which he reported (a) items of income aggregating $24,-087.28 (including an allowance of $3,900 from the estate of the ward’s deceased husband, payments of $10,104.73 from the “Ethyle Boeving trust,” checks for $1,153.-41 from life insurance companies, farm rents of $5,979.05, stock dividends of $1,-404.32, social security payments of $1,148.-40, interest of $280 on a time deposit, and an income tax refund of $117.37) and (b) items of expenditure aggregating $10,720.-30 (including nineteen items in excess of $100 each, as listed marginally, and innumerable smaller items).

In the interim between the filing of the first annual settlement and the filing of the second annual settlement, the guardian dismissed his Poplar Bluff attorneys (because, so he says, of the $5,000 fee charged for services during the first year) and employed his present counsel, a Kennett attorney, who sought and was allowed a fee of $600 for services during the second year. The guardian earnestly avers that the probate judge’s “dissatisfaction” with the second annual settlement stemmed from the guardian’s dismissal of the judge’s son as his attorney. Certainly we do not, on the meager and unsatisfactory record before us, honor and embrace so serious a charge against a respected member of the judiciary; but, the fact remains that, perhaps coincidentally, the guardian’s difficulties seem to have begun with his change of counsel.

On May 27, 1963, the probate clerk wrote the guardian’s attorney that “we are unable to accept your [second annual] settlement as filed herein,” but the only specific complaint was that “you have not started your settlement with the exact balance as shown on the previous settlement.” After pointing out the two particulars in which the assets listed as on hand at the beginning of the second year differed from those shown in the first annual settlement as on hand at the end of the first year, the probate clerk’s letter closed with the request, “kindly give this your prompt attention, correcting said settlement.” The guardian’s attorney replied under date of May 29,1963; Joseph L. Smith, the Kennett C.P.A. cosigning the guardian’s checks, talked with the probate clerk; and on June 5, 1963, “an amended first page to the [second] annual settlement” was mailed by the guardian’s attorney to the probate clerk, with the request that the amended page be substituted for the first page as originally filed. This apparently satisfied the only complaint in the probate clerk’s letter of May 27, since that complaint was not mentioned in the “Order To Show Cause Why Guardian Should Not Be Removed” (hereinafter referred to as the order to show cause), which was issued shortly thereafter, to wit, on June 10, 1963, in the following language and form:

“Now on this 10th day of June, 1963, the Court takes up for consideration a purported annual settlement filed by the guardian, William R. Boeving, and the Court finds that said purported annual settlement is filled with numerous and divers claims of credits which constitute unauthorized and unjustified expenditures upon the part of the guardian of large amounts of the funds belonging to the estate of this incompetent. Said purported settlement contains numerous items of the funds of the estate exceeding $100.00 each, and which alleged purchases made by the guardian, for the benefit of the incompetent, are not itemized so as to inform the Court of the true facts concerning said alleged expenditures.
“It is therefore, considered, ordered and adjudged by the Court that the said guardian, William R. Boeving, be and he is hereby cited to appear in this Court on the 26th day of June, 1963, and make a showing to show cause, if any he has, why he should not be removed from office as guardian of the person and estate of Ethyle Boeving, incompetent.”

On account of injuries sustained on May 24, 1963, the probate judge was hospitalized for four weeks thereafter, so the order to show cause was issued by him during that period of hospitalization. At the hearing in circuit court, the probate judge agreed upon cross-examination that in his court some settlements by guardians were filed by their attorneys without personal appearance by the guardians; that, when “anything on the settlement” needed explanation, he required the guardian to come into court personally; but that, before issuing the order to show cause in the instant proceeding, he had not asked either the guardian or his then attorney to come into court personally and explain the second annual settlement. The probate judge also testified that he had “a rule” in his court that a guardian must obtain prior approval of any expenditure in excess of $100 — “that is a rule that we follow in our court and it is a matter of expenditure of more than a hundred dollars, that the guardian first get appropriation from the court.” The evidence did not show whether “the $100 rule” had been reduced to writing, or when or how it had been promulgated. The circuit judge foreclosed interrogation as to whether “the $100 rule” had been enforced during the first year of the guardianship under consideration, but it was established that no order to that effect had been entered in the Boeving guardianship or, for that matter, in any other guardianship.

When the circuit judge asked the probate judge why he had issued the order to show cause, this was the answer: “I issued it because he [the guardian] was absolutely treating the probate court in, well, just as if it wasn’t, had no jurisdiction over the case in court; he took it upon himself to make any appropriations he saw fit.”

The order to show cause, delivered to the sheriff for service on the guardian, was returned “as non-est,” and the guardian did not appear in the probate court on the return date of the order, to wit, on June 26, 1963. However, the guardian’s attorney did appear then and requested “time to prepare the showing of [the guardian] as to why he should not be removed.” Whereupon, the probate court entered an order

“ * * * that all funds belonging to the estate of Ethyle Boeving, incompetent, be frozen in the hands of the [bank] depository * * * ; that the attorney [amicus curiae], George R. Wilhoit, * * * take the public administrator, Clyde E. Richardson, to his assistance in procuring the services of James Tatum, certified public accountant, to make an audit of the funds belonging to the estate * * *, and the * * * guardian of said incompetent is ordered to surrender any and all records in his possession of and concerning the handling of funds * *, and this proceeding of removal of said guardian is passed, pending the making of said audit * * * and the filing of same in this court, and said citation for showing cause * * * to be reset for hearing following the filing of said auditor’s report.”

On July 6, 1963, the guardian filed his petition for disqualification of the probate judge [Sec. 472.060]; and on July 17, 1963, the proceeding to remove the guardian was certified to the Circuit Court of Butler County.

On the same date, to wit, on July 17, 1963, the guardian filed in the circuit court a motion to free the assets of the estate in order that the guardian might provide necessities for the ward; and on July 19, 1963, the circuit court modified the order of the probate court freezing the assets of the estate, authorized the guardian “to expend funds not to exceed the total sum of $1,000 for the benefit of the [ward] for her necessities.” and directed the guardian to “keep a detailed account and receipts of all of said expenditures and promptly make and file his report of the same with this court.”

On August 1, 1963, the guardian filed in the circuit court his motion to make the order to show cause more definite by specifying (a) the “claims of credits” in the second annual settlement alleged to have constituted “unauthorized and unjustified” expenditures and (b) the “purchases exceeding $100 each” alleged to have been “not itemized so as to inform the court of the true facts concerning said alleged expenditures,” which said motion was, by the court, overruled on August 19, 1963.

At a formal call of the docket on October 7, 1963, this proceeding was set for hearing at 1 P.M. on October 14, 1963. On October 10, 1963, the guardian filed an application for disqualification of the circuit judge, alleging that he “[was] prejudiced against the guardian” and that knowledge of such prejudice had come to the guardian on October 8, 1963 [Rule 51.03(b); Sec. 508.090, as amended Laws of 1957, p. 294]; and, on the date of filing of said application, notice was given to the amicus curiae, who had appeared for and on behalf of the probate judge throughout the proceeding to remove the guardian, that the application would be called for hearing at 9 A.M. on October 14, 1963.

On October 10, 1963, the guardian also filed in the circuit court his written “settlement” or accounting of the $1,000 released by the circuit court’s order of July 19. This “settlement” reported expenditures aggregating $924.57 and showed a balance of $95.43 on hand. Amicus curiae emphasized in the circuit court, and now emphasizes here, that on July 24, 1963, the guardian issued four of the listed checks, each for $100, to his own order. The “reason” for three of those checks was shown as “expense of ward and guardian for ward’s checkup at Mayo Clinic,” and the fourth as “personal expense money for ward for spending money on trip to Mayo Clinic.” Upon trial in the circuit court, the guardian’s attorney remarked that, when the order of July 19 authorizing expenditures of not to exceed $1,000 for necessities was entered, it was “agreed, or at least it was contemplated, that the ward did in fact have to go to the Mayo Clinic * * and the circuit judge responded with the comment that “the court never agreed to any such thing as that.” When the guardian’s attorney then inquired, “was the court not aware that the guardian had to take his ward to the Mayo Clinic,” the circuit judge said “I don’t know,” and a like inquiry to the amicus curiae elicited a similar answer, “frankly, I can’t recall.”

Pursuant to the notice theretofore given, the guardian’s attorney called for hearing on October 14, 1963, the application for disqualification of the circuit judge. At the outset of the discussion concerning this application, the guardian’s attorney repeated in open court “some of the statements” alleged to have been made previously by the circuit judge in the attorney’s presence and by him communicated to the guardian, to wit, statements “to the effect that if the guardian had filed a proper account he would not have been in this trouble, and that had he filed a proper account, the probate judge would not have filed the show cause order.” The circuit judge did not confirm or deny the statements attributed to him. Amicus curiae responded by vigorously opposing the application for disqualification on the stated theory that, since the proceeding had been certified to the circuit court upon disqualification of the probate judge, the circuit judge “is now sitting as the probate judge” and that the guardian “is entitled to one disqualification and he has had it” by disqualification of the probate judge. In turn, the guardian’s attorney insisted that the fact that the cause had come to the circuit court on certification did not render the rules of civil procedure inapplicable in that tribunal, and the court’s attention then was directed to Clow’s Estate v. Clow, 237 Mo.App. 267, 167 S.W.2d 903, where it was held that a probate proceeding certified to the circuit court was “a civil suit” within the contemplation and meaning of the change of venue statute [then Sec. 10S8, RSMo 1939; now Sec. 508.090, as amended Laws of 1957, p. 294— see Rule 51.03] and that a change of venue might be taken in the circuit court. Although observing that “it is not any pleasure to try the case,” the circuit judge overruled instant guardian’s application for disqualification and called upon the parties to proceed.

The guardian’s attorney then presented his sworn application for continuance predicated upon three grounds, one of which, i. e., because the circuit court had directed the circuit clerk not to issue subpoenas requested by the guardian’s attorney, merits elaboration. On October 10, 1963, the guardian’s attorney had, by letter directed to the circuit clerk, requested the issuance of subpoenas duces tecum for fifty-two individuals to produce at the date of hearing “all records of financial or business transactions” with the guardian during the period covered by the second annual settlement. As the circuit clerk stated, this request (received on October 11) “was taken up with the court and the court ordered that they [the subpoenas] not be issued.” This denial of process appears to have been prompted by the circumstances (a) that two of the individuals (namely, C. Douglas Dillon, Treasurer of the United States, and “Manager, St. Mary’s Hospital, Rochester, Minnesota”), for whom subpoenas were requested, resided outside this state, and two others (namely, S. R. Banet, M.D., and “Manager, St. Vincent’s Hospital”) resided in St. Louis, and (b) that the guardian’s attorney had said something to the effect that (to borrow the language of the circuit judge) “you [the guardian’s attorney] was going to fill this court house up with witnesses and that it would take three weeks to try this.”

The request by the guardian’s attorney that subpoenas be issued for out-of-state witnesses was frivolous, indefensible and unworthy of one who, by reason of his high calling, was an officer of the court. However, of the fifty-two individuals for whom subpoenas were requested, forty-five persons (among them James Tatum, the C.P.A. whom the probate judge had appointed more than three months previously to make an audit of the ward’s estate) were listed as residing in Poplar Bluff, another as residing in the same county, and two (one of whom was Joseph L. Smith, the Kennett C.P.A.) as residing in adjoining counties. At the hearing on the application for continuance, the guardian’s attorney explained that the persons, whom he had sought to subpoena, were those to whom the guardian had made payments from the ward’s estate during the period covered by the second annual settlement, and that he had listed all of those persons because he had been unable to ascertain the specific items in that settlement for which explanation was desired and had been told by the amicus curiae “that he wanted every item on our settlement explained” — a statement not denied by the amicus curiae. In this connection, we note also that, when the guardian’s attorney had taken the deposition of the probate judge on August 30, 1963, the witness had, pursuant to advice of the amicus curiae acting as his counsel, refused to answer numerous questions, among them one requesting him to “indicate which claims of credit [in the second annual settlement] constitute these unauthorized and unjustified expenditures on the part of the guardian, and which purchase^] of items [exceeding] a hundred dollars are not itemized so as to inform you of the true facts concerning these expenditures.” The amicus curiae here points out that, at the hearing on October 14, 1963, he offered to stipulate that “those items shown on the [second annual] settlement were paid * * * by checks written by this guardian,” but more importantly he refused to stipulate either that the payments “were proper” or that they were “for the benefit of the incompetent.”

Before the application for continuance was ruled, it was shown in the record that, when the proceeding was set on October 7 for hearing on October 14, the court directed that a subpoena duces tecum be issued for the guardian; that this subpoena was returned by the sheriff “as non-est”; but that, in a conference at the Kennett offiee of the guardian’s attorney on the morning of October 8, the guardian had been informed of the setting on October 14 and of the issuance of a subpoena duces tecum directed to him. However, the guardian was not in court on October 14 because, according to his attorney, he (the guardian) had made conflicting “plans some two months” previously to attend “a bankers’ meeting” in North Carolina and it “was imperative” that he honor “this commitment.” The guardian had said that “he would try to be back but didn’t know for sure that he could be back on October 14.” Rejecting the suggestion of the guardian’s attorney that the instant proceeding be reset at the top of the trial docket on November 6, (in the place of another case in which he was counsel for one party and the opposing attorney desired a continuance), the court overruled the application for continuance.

After other motions filed on behalf of the guardian (and in no wise material here) had been overruled summarily, the court proceeded with a brief trial on “the matter of the removal of guardian.” At the outset, the court stated: “I think the principal question is whether or not he has obeyed the orders of the court, not so much as to whether or not he has misappropriated money. Of course that is another question. That might become material and very important, * * * but one of the main questions is whether or not he has obeyed the orders of the court and come in and answered questions that the court wanted to find out.”

The only witnesses at the trial (and both were called by the circuit judge) were the guardian’s attorney and the probate judge. Their testimony was relatively brief, and the references thereto, with which this factual review has been interspersed, need not be repeated here. The testimony of the guardian’s attorney was confined to identification of the four checks dated July 24, 1963, each for $100, which the guardian had issued to his own order allegedly for expenses of a trip by the ward (accompanied by the guardian) to the Mayo Clinic. In addition to the testimony here-inbefore digested, the probate judge said on direct examination by the court that the guardian “hasn’t been in my office since 1962”; and, when the court inquired whether the guardian had “been requested to come in and talk to you about it,” the probate judge said that “he has been served with written notice by mail.” But the “written notice” was not offered, no effort was made to fix its date or to show its contents, and (as we have noted) on cross-examination the probate judge conceded that, before issuing the order to show cause in the instant proceeding, he had not asked either the guardian or his then attorney to come into court personally and explain the second annual settlement. No audit was presented at the trial, and there was no testimony as to whether an audit had been or was being made. In fact, no question was asked and no evidence was offered concerning any item or items in the second annual settlement.

After some preliminary comments in which heavy emphasis was laid on the guardian’s failure to appear in court on the date of trial, the circuit court entered this judgment:

“The court having heard said matter and being now fully advised, finds as follows: That the guardian has failed and refused to comply with the orders of both the probate court and this circuit court; that he has been negligent, incompetent and inefficient in the preformance of his duties; that he has failed to file proper reports with both courts, including vouchers, statements and receipts; that he has misappropriated money and property belonging to the estate of his ward; that he has deliberately failed and refused to appear in the probate court when requested to do so by the judge thereof; that he deliberately failed and refused to appear at this trial today, although he well knew that this cause was set for trial on this date, and although he well knew that a subpoena duces tecum had been issued for him to appear at this hearing today.
“WHEREFORE, it is ordered, adjudged and decreed by the court that the guardian herein, William R. Boev-ing, be and he is hereby removed as guardian of the estate of Ethyle Boev-ing incompetent. It is further ordered by the court that this cause be and the same is hereby remanded to the Probate Court of Butler County, Missouri, and all files pertaining thereto are ordered returned therewith.”

The guardian has preserved and presented seven points. Several are not wholly without merit, but proper disposition of this appeal requires the ruling of only one, to wit, that the court erred in overruling the guardian’s application for disqualification of the circuit judge. It should be pointed out preliminarily that no question has been raised and no objection has been interposed concerning the legal adequacy of the application in form and substance [Rule 51.-03(b)] or concerning the reasonableness and sufficiency of the notice given to the amicus curiae on October 10 that the application would be called for hearing on October 14.

It is true that a probate proceeding certified to the circuit court retains its probate character [Hewitt v. Duncan’s Estate, 226 Mo.App. 254, 258, 43 S.W.2d 87, 89(8)], and that, on such certification, the circuit court assumes and exercises “the function of the probate court.” 3 Maus, Missouri Practice, § 490, 1. c. 444. But it does not follow that, as amicus curiae stoutly maintained in the circuit court, the guardian was foreclosed from disqualification of the circuit judge on the theory that “he [the guardian] is entitled to one disqualification and he has had it” by disqualification of the probate judge. For, on certification from the probate court, the circuit court “acquires jurisdiction as a circuit court” [In re Schwidde’s Estate, Mo., 363 S.W.2d 585, 586]; and, although as to substantive matters it is governed by the laws of administration or guardianship (according to the nature of the proceeding), as to procedural matters it is subject to the rules of civil procedure. See Keele v. Weeks, 118 Mo.App. 262, 279, 94 S.W. 775, 781.

Rule 51.03 permits, as did the antecedent statute [Sec. 508.090, as amended Laws of 1957, p. 294] a change of venue or disqualification of the circuit judge “in any civil suit.” So, in determining whether an application for change of venue or disqualification of the judge properly may be entertained in any given proceeding in the circuit court, the inquiry is whether that proceeding is a “civil suit” within the contemplation and meaning of Rule 51.03. And, while the right to a change of venue or to disqualify the judge does not exist except as granted by the rule, we are of the opinion that, as was true under the antecedent statute, the rule should be construed liberally in favor of the right to .grant such change of venue or disqualification, insofar as the applicability of the rule to particular classes of civil proceedings is concerned.

As used in the antecedent statute [Sec. 508.090, as amended Laws of 1957, p. 294] and in the superseding rule [Rule 51.03], “ ‘suit’ * * * means any proceeding for the redress of injury or the recovery of a right, and * * * ‘civil’ used in connection with the word ‘suit’ is in contradistinction to a ‘criminal case’. ‘Civil suit’ then, in its broad aspect, means a proceeding by which rights of private individuals are protected or enforced.” Hayes v. Hayes, 363 Mo. 583, 588, 252 S.W.2d 323, 326-327. See State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 185-188, 101 S.W. 567, 568-569, 12 L.R.A.,N.S., 900. Under this accepted judicial definition, the instant proceeding to remove the guardian undoubtedly was a “civil suit” in which an application to disqualify the circuit judge properly might have been filed.

Amicus curiae now seeks to justify the order overruling the motion to disqualify the circuit judge on the theory that such motion “was not made in good faith.” But the cases cited by amicus curiae to this point are neither analogous nor persuasive. In Erhart v. Todd, Mo., 325 S.W.2d 750(3), and in State v. Davis, 203 Mo. 616, 102 S.W. 528, the applications to disqualify were filed after commencement of trial. In Pippas v. Pippas, Mo.App., 330 S.W.2d 132, it was held that defendant wife was not entitled to disqualify the circuit court for alleged prejudice on the ground, speci fically averred in her application by which she was bound, that the judge had informed the wife’s attorney that she was not entitled to alimony pendente lite, because in reaching and announcing that opinion the judge was doing no more than exercising “ ‘his judicial trial function’ ” for which he was not “ ‘to be successfully charged with prejudice’ ” even though he might have been mistaken. 330 S.W.2d at 135(3).

Amicus curiae argues that “it is obvious that the motion to disqualify was not made in good faith,” because (a) the guardian’s attorney had been informed on October 8, 1963, that his client thought it “imperative” for him to attend “a bankers’ meeting” in North Carolina and he “didn’t know for sure that he could be back on October 14,” and (b) that, although the application to disqualify was filed on October 10, the guardian’s attorney on the same date wrote the circuit clerk requesting the issuance of subpoenas for fifty-two witnesses. Neither circumstance necessarily demonstrated bad faith in the filing of the application to disqualify the circuit judge for his alleged prejudice against the guardian. In fact, the course of the proceeding subsequent to the filing of the application to disqualify confirmed the propriety of counsel for the guardian subpoenaing witnesses in preparation for a hearing should the application be overruled.

Although, in determining whether an application to disqualify the judge has been filed in good faith, the court may consider what is shown by its own records, pleadings and files, the court’s private knowledge or belief as to the existence or non-existence of the ground stated in the application may not be considered. When an application to disqualify the judge is filed, he “ ‘has power only to determine whether the application is in due form and due time, and if it is, to see that the proper steps are taken to substitute another judge’ — he may not pass on his own qualifications.” State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 1031, 169 S.W.2d 697, 700(2). See State v. Bailey, 344 Mo. 322, 328, 126 S.W.2d 224, 227(5). In other words, on an application to disqualify the judge “on account of the alleged prejudice of such judge, no evidence of such prejudice need be adduced.” Hayes, supra, 363 Mo. at 588, 252 S.W.2d at 327(3). We recognize that questions as to whether presentation of an application to disqualify the judge is timely, as to whether notice of intended filing thereof is sufficient, and as to whether the application is sufficient in substance and form, are addressed to the sound judicial discretion of the court. Douglass v. White, 134 Mo. 228, 234, 34 S.W. 867. But when, on the facts of any given case, those questions are or should be settled in the affirmative, the duty of the court no longer is discretionary but becomes imperative, and the application should be granted as a matter of right, and not as a matter of favor or discretion. On the record before us, we are unable to say that the application to disqualify the circuit judge was filed in bad faith; and, there being no substantial question as to whether presentation of the application was timely, as to whether notice of intended filing was sufficient, or as to whether the application was sufficient in substance and form, the application should have been granted as a matter of right. The court’s refusal so to do constituted prejudicially reversible error, for which the judgment nisi must be set aside and the cause remanded.

In view of the conclusion reached, other questions pass out of the case on this appeal and need not be ruled. Ralston v. Ralston, Mo.App., 166 S.W.2d 235, 238(6). However, in the interest of minimizing the possibilty of error upon remand, we add these comments concerning the emphatic assertion of amicus curiae that “the guardian’s actions and activities gave the court ample grounds, both statutory and equitable, for the removal of said guardian.” It is true that the probate court has the inherent power to initiate, ex mero motu, a proceeding to remove a guardian; but, when it does, the citation or order to show cause should “sufficiently advise the [guardian] of the charge against him to enable him to make his defense.” In re Ford, 157 Mo.App. 141, 154-156, 137 S.W. 32, 36. A proceeding to remove a guardian is one in rem; and, although there were early expressions to the contrary [5 Maus, Missouri Practice, § 1988, p. 335, footnote 37], it is now settled that, since the statutes [Secs. 475.110 and 473.140] enumerate the grounds upon which a guardian may be removed, removal (as distinguished from revocation of letters) may be ordered and adjudged by the probate court only upon a statutory ground or grounds. The jurisdiction of the circuit court on appeal from, and a fortiori on certification by, the probate court is a derivative jurisdiction no greater and no less than that which the probate court lawfully might have exercised and in the exercise of such derivative jurisdiction the circuit court, though possessing chancery powers, cannot enter any judgment which the probate court would have been without authority to enter.

Intolerably long as this opinion already is, we should not close without a caveat to the guardian that nothing herein should be misinterpreted as implying approval or disapproval of the second annual settlement (or any items therein) or as signifying acceptance of counsel’s explanations of the guardian’s failure to appear in the probate court on the return date fixed in the order to show cause or in the circuit court on the date set for hearing. And it may not be inappropriate to suggest that the guardian would be well-advised to read and respect the plain statements of principle as to the duties of a guardian, which are found in the case of In re Mansour’s Estate, 238 Mo.App. 623, 185 S.W.2d 360, 368-369(2-5), and, putting aside all manner of excuse and delay, to honor his imperative obligation to present himself at future settings.

It is the judgment of this court that the judgment of the circuit court be set aside and for naught held, and that the cause be remanded with directions to sustain the guardian’s motion to disqualify the circuit judge and to “call in another circuit judge to sit in the cause, as authorized by Section 15 of Article V of the Constitution, or request the Supreme Court to transfer a judge to try such cause, as authorized by Section 6 of Article V of the Constitution” [Rule 51.03(b)], and for further proceedings thereafter not inconsistent with the views expressed herein.

All concur.

      . Except as otherwise specifically stated, all statutory references are to BSMo 1959, V.A.M.S., and all references to rules are to the Buies of Civil Procedure, V.A.M.E.

      . In re Wilson’s Estate, 320 Mo. 975, 8 S.W.2d 973, 974(4), 975(5, 6); Fields v. Luck, 327 Mo. 113, 34 S.W.2d 710, 711(2, 3). See Rust v. Geneva Inv. Co., Mo., 124 S.W.2d 1135, 1137(5, 6); Powers v. Johnson, Mo., 302 S.W.2d 899.

      . 6/25/62 339 Forest Super Market, groceries .... $ 124.82
      7/31/62 360 Faust Super Market, groceries June and July ... 126.63
      11/ 5/62 367 Traveler’s Ins. Co., bond for guardian .. 318.40
      11/ 5/62 368 Probate Court, Butler Co., fees for 1 year ...... 280.24
      12/ 3/62 370 St. Vincent’s Hospital, bill for ward ......._ 1,307.79
      12/ 3/62 371 Dr. S. R. Banet, medical service for ward ...... 350.00
      12/20/62 384 St. Vincent’s Hospital, bal. of bill for ward. 450.60
      1/ 2/63 391 City Collector, 1962 taxes . 144.00
      1/ 2/63 392 County Collector, 1962 taxes .. 773.91
      1/ 2/63 394 Mayo Clinic, complete checkup for ward ........ 391.00
      1/ 3/63 396 Baumkoefer & Son, material/labor 813 N. Main .. 538.75
      1/ 3/63 397 Orkin, monthly treatment and termite proofing .. 177.00
      1/17/63 405 Newberrys, merchandise for ward .............. 111.46
      1/17/63 406 Ross Welding, trash incinerator for A. B. home.. 137.20
      1/21/63 412 Wm. R. Boeving, personal spending money for ward ... 150.00
      1/22/63 414 Farmers Cash Store, merchandise for ward .... 432.29
      3/26/63 434 Mo. Natural Gas Co., Jan. and Feb. bills ... 180.14
      4/ 2/63 440 Faust Super Market, groceries . 171.27
      4/ 5/63 443 Safeway Store, groceries and meats for ward .... 117.43

      . By amendment effective March 1, 1964, Buie 51.06(e) now requires that such application must be filed “not less than five days before the day the case has been set for trial * *

      . Hayes v. Hayes, 363 Mo. 583, 586, 252 S.W.2d 323, 325; State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 185, 101 S.W. 567, 568, 12 L.R.A.,N.S., 900; State ex rel. Anderson Motor Service Co. v. Public Service Com’n, 234 Mo.App. 470, 489, 134 S.W.2d 1069, 1079(20), affirmed 348 Mo. 613, 154 S.W.2d 777; In re McFarland, 223 Mo.App. 826, 832-834, 12 S.W.2d 523, 526-527.

      . State ex rel. Sharp v. Knight, 224 Mo.App. 761, 765, 26 S.W.2d 1011, 1014 (3). See Hayes, supra, 363 Mo. at 588. 252 S.W.2d at 327; State ex rel. Kochtitzky, supra, 203 Mo. at 188, 101 S.W. at 569.

      .Rule 51.03(b): Clow’s Estate v. Clow, 237 Mo.App. 267, 274, 167 S.W.2d 903, 905-906(6); 3 Maus, Missouri Practice, § 490 1. c. 444, footnote 46. See In re Alexander’s Estate, Mo., 360 S.W.2d 92, 96-97; Keele v. Weeks, 118 Mo.App. 262, 265, 94 S.W. 775, 776.

      . Erhart v. Todd, Mo., 325 S.W.2d 750, 753; Padberg v. Padberg, Mo.App., 78 S.W.2d 555, 559(2); Planters’ Bank v. Phillips, Mo.App., 186 S.W. 752, 753; St. Louis & S. F. R. Co. v. Big Three Mining Co., 139 Mo.App. 272, 275, 123 S.W. 70, 71.

      . Douglass v. White, 134 Mo. 228, 234, 34 S.W. 867, 868; Padberg, supra, 78 S.W.2d at 559(2). See St. Louis & S. F. R. Co., supra, 139 Mo.App. at 275, 123 S.W. at 71(3).

      . Douglass, supra, 134 Mo. at 234, 34 S.W. at 867-868; Ralston v. Ralston, Mo.App., 166 S.W.2d 235, 237(1); Hornig v. Jones, Mo.App., 269 S.W. 399(4). See St. Louis & S. F. R. Co., supra, 139 Mo.App. at 274, 123 S.W. at 71.

      . State ex rel. Baker v. Bird, 253 Mo. 569, 581, 162 S.W. 119, 122(4); In re McMenamy’s Guardianship, 307 Mo. 98, 134, 270 S.W. 662, 673; State ex rel. McWilliams v. Armstrong, 320 Mo. 1122, 1129, 9 S.W.2d 600, 602; Davis v. Roberts, 206 Mo.App. 125, 130, 226 S.W. 662, 664(4); 5 Mans, Missouri Practice, § 1988, p. 335.

      . In re Mills’ Estate, 349 Mo. 611, 162 S.W.2d 807, 810(3); In re Ozias’ Estate, Mo.App., 29 S.W.2d 240, 242; Davis, supra, 206 Mo.App. at 130, 226 S.W. at 664(6); 4 Maus, Missouri Practice, § 1513, p. 632.

      . State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 971, 104 S.W.2d 303, 307(5); In re Murphy’s Estate, Mo.App., 231 S.W.2d 200, 205(2); Evans v. York, Mo.App., 195 S.W.2d 902, 906(3). See In re Thomson’s Estate, 362 Mo. 1043, 246 S.W.2d 791, 796(6), 29 A.L.R.2d 1239.

      .State ex rel. Baker, supra, 253 Mo. at 581, 162 S.W. at 122(5); In re Thomson’s Estate, supra, 246 S.W.2d at 796 (6); In re Ozias’ Estate, supra, 29 S.W. 2d at 242; 4 Maus, Missouri Practice, § 1513, p. 632. See Primeau v. Primeau, 317 Mo. 828, 838-839, 297 S.W. 382, 387, recognizing this principle although further holding that the circuit court may have jurisdiction, in an equitable action instituted therein, to remove for a cause not defined by statute.


source: Caselaw Access Project

author: L. F. COTTEY, Special Judge.

license: Public Domain

text:
    STATE of Missouri upon the information of Daniel P. REARDON, Jr., Circuit Attorney of the City of St. Louis, (Plaintiff) Respondent, v. A. Barney MUELLER, (Defendant) Appellant.
    No. 31924.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Motion for Rehearing and Transfer to Supreme Court Denied Feb. 12, 1965.
    Application to Transfer Denied April 12, 1965.

      Thompson, Walther & Shewmaker, Richard D. Shewmaker, John Gianoulakis, St. Louis, for appellant.
    Daniel P. Reardon, Jr., Circuit Atty., Michael M. Flavin, Asst. Circuit Atty., for respondent.
   L. F. COTTEY, Special Judge.

The State of Missouri challenges the right of A. Barney Mueller to hold the office of Alderman of the Twenty-First Ward in the City of St. Louis, to which he was elected for a third consecutive term in 1961. The action is based on Article IV, Section 2, of the City Charter, reading in pertinent part as follows:

“No person shall become an Alderman except he be * * * a resident of the ward from which elected * * * and if any Alderman * * * shall at any time not be a resident of such ward, he shall thereby forfeit his office * *

The information charges that Mr. Mueller has forfeited his office by reason of the fact that he is not, and for some time prior to his last election has not been, a resident of the Twenty-First Ward, but has actually resided during all that time in the First Ward of the city. By his answer Mr. Mueller concedes that at all times mentioned in the information he “has maintained a dwelling place for his family, including himself, at 1632 Veronica Avenue” in the First Ward, but he avers that it is not his legal residence and specifically denies that he is not a bona fide resident of the Twenty-First Ward. After the pleadings were made up, Mr. Mueller’s deposition was taken. The Circuit Attorney, upon whose information the action was instituted, thereupon moved for summary judgment on the ground that all of the material facts pleaded in the information had been confessed, either by the answer or by the deposition, so that no “genuine issue” remained to be litigated; consequently, “that the plaintiff is by unassailable proof entitled to judgment as a matter of law” under Supreme Court Rule 74.04, V.A.M.R. Mr. Mueller responded by affidavit, as the Rule requires, and the record as thus completed establishes the following facts.

At some undisclosed date prior to his latest election Mr. Mueller and his wife bought a residence property at 1632 Veronica Avenue, in the First Ward. It is “a normal family dwelling,” and was acquired by them as a place “to raise our family.” He and his wife and their three children have ever since “been housed” there. This is the house which is used by the family “as their normal spot of dwelling;” they eat and sleep there. Mr. Mueller is not separated from his wife; on the contrary he leads a “normal life as husband and father,” and, in that connection, “provides a home for his wife and children” at the Veronica Avenue address. That is the place where his “family dwells;” that is the place where his own “home life is conducted.” Mr. Mueller’s duties oblige him to be absent from that dwelling during the usual hours of each working day, but his normal practice is to return there for his evening meal, spend the night there except on very rare occasions, and take his breakfast there. During all the time with which we are concerned he has “lived a normal family life at 1632 Veronica.”

Mr. Mueller insists, however, that he considers his “legal residence” to be at 3801a Lee Avenue, in the Twenty-First Ward. At that address there is a three story brick business building in which, some sixty-five years ago, Mr. Mueller’s father established a retail drug business which occupied the ground floor. At that time the elder Mr. Mueller and his family lived upstairs; but many years ago they moved to a house across the street where he and his wife afterwards died. Since that time the house has not been occupied by any member of the family. The drug store, however, has remained at its original location and is currently operated by Mr. Mueller’s brothers, Cornelius and John, and his sister, Mrs. Steck, who lease the entire building from its present owner. The two upper floors of the building are used principally for the storage of merchandise and supplies used in the drug store. Mr. Mueller occasionally “helps out” as a clerk in the drug store, but he has no financial interest in the business. For an undisclosed length of time his brothers and sister have allowed him to use three rooms on the second floor of the building as “an apartment that is capable of being inhabited by a person or family.” The apartment is reached by a stairway that is accessible both from the drug store premises and from an outside entrance on Prairie Avenue. At the head of the stairs there is a toilet, apparently the only one in the building, and adjoining it is a washroom containing a lavatory, but no other facilities so far as the record discloses. Down the hall are Mr. Mueller’s “living room and bedroom fully furnished;” the third room of his suite is “half-way furnished,” the remaining space in it being used for the storage of drug supplies. His living room is the room in which he was born during the years his parents lived there. He pays no rent for these quarters. He keeps some clothes in the apartment and some shaving equipment, but he has only spent “about eight” nights there during the past year. On some of those occasions his family was out of town; on others they were at the Veronica Avenue residence. At no time have any members of his family shared the apartment with him. It “is extraordinary” for him “to spend the evening” there. If facilities for cooking exist, it seems they are never used; food is “brought in” whenever needed. Mr. Mueller filed his candidacy from this address and both he and his wife are “registered to vote from” it. So, also, are his two brothers, although admittedly “they don’t use it as a place to reside.” It is generally known as “the Twenty-First Ward Democratic Headquarters” when Mr. Mueller is conducting a campaign.

On “a normal working day” it has been Mr. Mueller’s practice to arise at his Veronica Avenue residence at 7:30 in the morning, eat breakfast there, and then drive down to the drug store. It is “only about seven to ten minutes drive.” He arrives “about ten o’clock.” There he looks over his mail at a desk he uses in the drug store and makes such telephone calls as are necessary in his business, using the drug store phone; there is neither desk nor phone in his apartment. He confers with his constituents in the drug store until about noon. If the subject under discussion is of a confidential nature, he takes his callers up to his apartment for the conference. After lunch he usually drives to the office of a realtor with whom he is associated and attends to such business as awaits him there. Later in the afternoon he ordinarily makes a call at City Hall to attend to such matters as have been referred to him by his constituents, and then returns to the drug store because, “The people know that that’s where they can reach me in the day at four o’clock unless I have some other business.” At 5:30 or thereabouts he goes back to his Veronica Avenue residence for dinner and to spend the evening. Sometimes he is called back to the drug store to confer with a constituent, or just to help his brothers with the trade there, but eventually he returns to the Veronica Avenue dwelling for the night.

In his affidavit Mr. Mueller said, “I intend my living quarters, or apartment, at 3801a Lee Avenue to be my residence. I have intended it to be my residence during my entire present term as alderman and before that.” By way of explanation he added, “I have two homes, my apartment at 3801a Lee Avenue and my house at 1632 Veronica,” but “the one which I consider my residence is 3801a Lee Avenue.”

Upon that record the trial court sustained plaintiff’s motion for summary judgment. Mr. Mueller has appealed, contending that the record does not establish his non-residence in the Twenty-First Ward as a matter of law, but, on the contrary, raises a “genuine issue” as to- that fact. “Our duty is the equivalent of reviewing a court tried or equity case, and eventually of resolving the question of the sufficiency of the evidence to support the summary judgment and finally, if necessary, of entering such judgment as the trial court ought to have given.” Brown v. Prudential Ins. Co. of America, Mo.App., 375 S.W.2d 623, 628; Swink v. Swink, Mo., 367 S.W.2d 575, 578; Landers v. Smith, Mo.App., 379 S.W.2d 884, 886. “As said in many cases the question of the sufficiency of the evidence raises an issue of law and if under the evidence adduced the court would be compelled to direct a verdict for any of the parties, then said party is entitled to a summary judgment.” Brown v. Prudential Ins. Co. of America, supra (375 S.W.2d l. c. 629.)

The last cited case, incidentally, dealt with a complaint by the appellant that the entry of summary judgment against him deprived him of the benefit of some material evidence which he could have produced but, for some reason, did not. Counsel for Mr. Mueller make the same complaint here, and this seems an appropriate time to dispose of it. They say, “We were not called upon and did not purport by affidavit or otherwise to put in all the evidence that might convince the court on a full trial that the allegation that Mr. Mueller is not presently a resident of the Twenty-First Ward cannot be sustained.” If true, the omission was unfortunate; but it can scarcely be ascribed to lack of warning. Rule 74.04 expressly provides that the party resisting a motion for summary judgment must come forward with “specific facts showing that there is a genuine issue for trial.” “This is the duty imposed upon an adverse party to one moving for a summary judgment.” Brown v. Prudential Ins. Co. of America, supra (375 S.W.2d l. c. 632). And if he be remiss in that duty, “summary judgment, if appropriate, shall be entered against him.” One who withholds material evidence for reasons of trial strategy or otherwise, gambling on the outcome of the motion, must abide the result if he loses. Counsel also say, “Perhaps we can develop some more facts on a trial.” That same suggestion was made in the Brown case and disposed of in this language, (375 S.W.2d l. c. 633). “It should be noted that if the abstract statement appearing in plaintiff’s brief, that he could produce witnesses to refute the proof submitted by the moving party for summary judgment, was acceptable to defeat defendant’s judgment, then such a procedure, if tolerated, would completely circumvent the purpose of the rule permitting summary judgments.” We must take the record as we find it, then, and do the best we can with what we have.

It has been said that the question of legal residence “is often difficult to determine.” In re Ozias’ Estate, Mo.App., 29 S.W.2d 240, 243; State on Inf. of McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 686. It will be found in every case, however, that the difficulty has arisen upon disputed facts, in the determination of which the credibility of the opposing witnesses has frequently been a factor. Here we do not have that problem. Every fact in the record before us has been furnishd by Mr. Mueller, and his integrity is unquestioned. We have, therefore, the “unassailable proof” referred to in the Rule, and we have only to determine whether it establishes, as a matter of law, that Mr. Mueller is not a resident of the Twenty-First Ward. That will be found to turn on this narrow question, Which of Mr. Mueller’s two claimed homes is his real home? Admonished by the old maxim, “The beginning of knowledge is a definition of terms,” we turn first, and with some misgiving, to that task.

Perhaps no word in any language is so well understood and yet so imperfectly defined as the word, “home.” Interpretation of the concept has occupied the minds of jurists and engaged the imagination of poets in all ages, but none has given it full expression in language harmonious at once in truth and grace. Certain it is, however, that no definition can be complete which omits the element of sentiment, that quality, intangible and elusive though it may be, which nevertheless in the common understanding of a man serves most readily to identify his home and to distinguish it from every other place — that lifts it from an adjunct of living to an object of life — that goes beyond the law’s language and animates the image with the breath of family affection and the gentle warmth of hospitality shared with friends, and endows it with comfort in affliction, with respite from care, and the promise of pleasant repose. So, while we must use the definitions that have been given us — that a man’s home is his habitation, his place of abode, his domicile as specifically located in a given area — ■ we mean a little more than that. In State v. Savre, 129 Iowa 122, 105 N.W. 387, 388, 3 L.R.A.,N.S., 455, 458, the question was descriptively asked, ‘[WJhere is his home, the home where he lives, and to which he intends to return when absent, or when sick, or when his present engagement ends?” And in partial answer the court said it was “ * * * where he rests when not at work, and spends his evenings and Sundays.” In State v. Snyder, 182 Mo. 462, 82 S.W. 12, 28, our Supreme Court adopted this language, “ ‘ * * * And it may be safely asserted that where one has a home,, as that term is ordinarily used and understood among men, and he habitually resorts to that place for comfort, rest, and relaxation from the cares of business and restoration to health, and there abides in the intervals when business does not call, that is his residence, both in the common and legal meaning of the term.’ ” In Greene v. Beckwith, 38 Mo. 385, 387, this definition was .given, “A man’s residence, like his domicil, or usual place of abode, means his home, to and from which he goes and returns, daily, weekly, or habitually, from his ordinary avocations and business, wherever carried on.” See also: 77 C.J.S. Residence p. 293, “ * * * the residence of a man having a family which he maintains is, prima facie, where the family dwells;” 77 C.J.S. Residence p. 301, “ * *; * the principal domestic establishment of an individual;” 28 C.J.S. Domicile § 1, p. 4, “ * * * not for a mere special or temporary purpose;” In re Ozias’ Estate, supra, (29 S.W.2d l. c. 243) “* * * to which whenever he is absent he has the intention of returning.” Finally, we have a statute, § 1.020, V.A.M.S., which defines “place of residence” as “ * * * the place where the family of any person shall permanently reside * * It is objected to the statute, however, that it refers only to the term as used in the statutory laws of the state, and has no application to the St. Louis City Charter. But the statute merely codifies the presumption of law that would in any event exist without it. 28 C.J.S. Domicile § 16b, p. 37.

We are obliged to say that by all those definitions and standards a compelling case has been made for declaring Mr. Mueller’s home on Veronica Avenue as his home in fact. He acquired it as a place “to raise our family;” the family have ever since occupied it “as their normal spot of dwelling.” It is there he leads a “normal life as husband and father;” it is there his own “home life is conducted.” It is there “he rests when not at work, and spends his evenings and Sundays;” it is there “he abides in the intervals when business does not call.” It is the place “to and from which he goes and returns daily * * * from his ordinary avocations and business;” to which “he habitually resorts * * * for comfort, rest and relaxation from the cares of business.” It is not maintained for any “special or temporary purpose.” It is the only place to which he is attached by ties of family affection; it is his “principal domestic establishment.”

Against that conclusion several arguments are advanced. It is first suggested to us, in effect, that Mr. Mueller ought to be permitted to answer for himself the question as to which of his “two'homes” is his legal residence. In his brief it is conceded that a man cannot “have two domiciles;” but, counsel explain, “when a person has what Mr. Mueller called ‘two homes,’ he can choose between them; his intent is what counts.” (Italics added). We are unable to agree with that proposition. Whatever appearance of plausibility it has it owes to the semantic subtlety of its expression. In support of the first of the italicized phrases it is argued with much ingenuity that Mr. Mueller, in claiming his apartment as his residence, was simply making “a choice of a legal relationship” between his “two homes;” that he had the unqualified right to do so; and that, other considerations being equal, or sufficiently so in his opinion, it was only necessary for him to conceive the appropriate intent in order to validate the choice. Except in special circumstances which do not exist in this case, the word “home” is synonymous with “domicile” and “residence.” 28 C.J.S. Domicile § 1, p. 2, 4. We have used those terms interchangeably. If we are to be on common ground it must be assumed that counsel, in framing their proposition, have likewise intended those terms to be synonymous, as their use elsewhere in the brief indicates. With that understanding it becomes immediately apparent that the proposition holds for an impossibility; that it is a contradiction in terms. As counsel concede and the law affirms, “ * * * a person can have only one domicile at any given time.” 28 C.J.S. Domicile § 3, p. 8. A “choice between” domiciles is therefore a paradox, because the number necessary to allow for any choice to be made can never exist at any given time. One might with the same plausibility, or lack of it, speak of choosing between his two wives. The illusion which the statement is intended to convey seems itself to be the product of a misinterpretation of the cases cited in support of it: In re Ozias’ Estate, supra; Barrett v. Parks, 352 Mo. 974, 180 S.W.2d 665; Barth v. Barth, Mo.App., 189 S.W.2d 451; Kokinakis v. Kokinakis, Mo.App., 180 S.W.2d 243; State v. Snyder, supra; State ex rel. Kelly v. Shepperd, 218 Mo. 656, 117 S.W. 1169; Schneider v. Friend, Mo.App., 361 S.W.2d 308; Chariton County v. Moberly, 59 Mo. 238. In those cases, and in a number of others cited in the briefs, the householder was shown to have been maintaining two establishments with similar characteristics of domesticity. In each case the court determined from the evidence that one of the establishments was his real domicile and the other merely a claimed or fictitious one. In some, the decision was close; in several, the results are not easily reconciled. But in none was the householder allowed to dictate the decision by announcing which of his establishments he would elect to invest with the status of “legal residence,” and in none did he contend for that privilege.

The common understanding of the word “domicile” — as a thing of reasonable stability, useful in the orderly regulation of society — repels the notion that it is, after all, nothing but a weathercock, responsive to the whim of the householder and veering with every change of mind self-interest may prompt him to indulge. If Mr. Mueller, for instance, can, by nothing more tangible or demonstrable than a mental exercise, fix his domicile today in the Twenty-First Ward by virtue of his apartment there, what is to prevent him tomorrow from changing it with equal facility to the First Ward where his dwelling is, and, upon the appearance of advantage the following day, from switching it back again by the same process ? Obviously the trouble with the formula proposed to us, aside from the criticism already made of it, is that it contains no requirement of good faith, and no safeguard against that omission. It would allow the choice to be made between a real and a fictitious domicile, or in furtherance of some special purpose; or at any rate it prescribes no method by which that design could be detected and thwarted. The law demands a more discriminating rule. In State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817, 121 A.L.R. 1179, 1195, the court said, “He (the householder) could not elect to make his home in one place in point of interest and attachment and for the general purposes of life, and in another, where he in fact had no residence, for the (special) purpose of taxation.” (Parenthetical matter added). And in disposing of the question of a fictitious home the court, State v. Savre, supra, 105 N.W. l. c. 388, 3 L.R.A.,N.S., l. c. 458, said, “A person cannot live in one place and by force of imagination constitute some other his place of abode; * * * the actual place of residence controls, and one cannot be improvised by merely forming an intention to claim it elsewhere.” (Italics added). No formula for disposing of cases of this kind, therefore, which ignores the householder’s good faith, or lack of it, or the purpose for which his claim of domicile is made, or which facilitates the concealment of those factors, will satisfy the demands of the law.

The second part of the thesis — ■ “his intent is what counts”- — is of a piece with the first. It has the appearance of being unexceptionable, but as the argument proceeds it becomes evident that we are invited to interpret it as though it read, “his avowed intent controls" We are not prepared to go so far. No one denies that “residence is largely a matter of intention.” In re Ozias’ Estate, supra, 29 S.W.2d l. c. 243; In re Lankford’s Estate, 272 Mo. 1, 197 S.W. 147, 148; 28 C.J.S. Domicile § 11a, p. 15. But (despite a loose statement to the contrary in Kokinakis v. Kokinakis, supra, 180 S.W.2d l. c. 244) it is not entirely a matter of intention; and intention, when considered by itself, “separate and apart from” evidence of “some act or acts in conformity with such intention,” is never sufficient to establish the ultimate fact of residence, State on Inf. McKittrick v. Wiley, 349 Mo. 239, 160 S.W.2d 677, 687; Bryant v. Bryant, Mo.App., 232 S.W.2d 199, 203; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583, 589. Then, too, a person’s testimony as to his intention is simply a statement designed to create evidence of it. As it must be accepted on faith it should be received with caution, and, when in conflict with the other evidence on the subject, ought always to be subordinated to it; for it would be a curious rule that would allow a litigant by so natural and so ready an expedient to control the outcome of his case. Intent is a subjective thing. What a man says about it may as easily conceal it as reveal it. It is unrealistic to suppose that a court can penetrate into the obscurities of the human mind and there, with no surer light than that reflected by statements which it is to the litigant’s manifest advantage to make, separate fact from fancy and, with any degree of certainty, lay hands on his true intent. Thus the rule has evolved that where the behavior of the householder is at odds with his professed intent, the former will control, for actions speak louder than words. Barrett v. Parks, 352 Mo. 974, 180 S.W.2d l. c. 665, 666; 28 C.J.S. Domicile § 18b(l), p. 45. In conformity with that rule we are obliged to hold that Mr. Mueller’s testimonial avowals of intent, standing alone in opposition to all the other evidence, are as a matter of law too insubstantial to raise a genuine issue as to the ultimate fact of his legal residence.

It is insisted on Mr. Mueller’s behalf, however, that the record contains facts which corroborate his professed intent and substantiate his claim that his apartment in the drug store building is his real home. Counsel list seven items of evidence which show, they say, that “Mr. Mueller has plenty of contact with the Twenty-First Ward.” Since we are not concerned with his “contact” with that ward, but only with his claim of residence at a specific location in it, we assume that the listed items have been brought to our attention in support of that issue. Counsel say, “These are enough.” We quote them below, with our comments.

(1) “He was raised there — at the corner of Prairie and Lee, first in the rooms above the drug store and then directly across the street.” That is true. During that time he was a child, a member of his parents’ family, and of course their domicile was his. When they moved to the house across the street and established their residence there, he, like they, lost his domicile in the drug store building. Unless he has reacquired it he cannot claim it there now. No significance is to be accorded the fact that thereafter he continued to reside in the neighborhood of the drug store. He has elected to stand or fall on the proposition that “my living quarters, or apartment, at 3801a Lee Avenue” constitute “my residence.” He cannot establish that proposition by calling to mind his boyhood associations with other places in the general community.

(2) “He is registered to vote from there.” That is true. So, for that matter, are his brothers, although admittedly “they don’t use it as a place to reside.” We think it too clear to admit of doubt that Mr. Mueller, like his brothers, has constituted the drug store building his place of registration “by force of imagination;” that he has “improvised” it by simply “forming an intention to claim it” there. Surely no court, upon the record made in this case, would hesitate to rule as a matter of law that his registration from that address was improper.

(3) “He is there every day, and for a substantial time every day.” That is true, on working days. He spends a far larger proportion of his time, however, leading “a normal life as husband and father” at his Veronica Avenue residence, where he abides during all “the intervals when business does not call.” If time is a factor, then both quantitatively and qualitatively it leads to the conclusion that his Veronica Avenue residence is his home, and his quarters in the drug store building serve only as his business office. His normal daily routine in every respect, in fact, confirms that view.

(4) “He has living quarters there.” He does have some living accommodations there; but it is “extraordinary” for him to use them for any purpose normally associated with a home. Casual quarters, indifferently furnished and infrequently occupied, which serve only the special purpose of the tenant’s own convenience, which are never shared with his family, to which only business guests are invited, in which only business callers are entertained, and from which he regularly departs at end of day “for relaxation from the cares of business” in the company of his family at another address, do not comport with any recognized definition of “home.”

(5) “He gets his mail there; he answers his mail there; he gets his telephone calls there.” That is both irrelevant and deceptive ; irrelevant, because such mail and telephone calls as he handles at that address (so far as the record discloses) relate to business matters which would normally be handled at his office rather than his home; and deceptive, because all such mail and telephone calls are attended to on the premises of the pharmacy itself, not in the apartment he claims as his home. Mr. Mueller does not contend that he resides in the pharmacy, and it is misleading to suggest that his activities there tend to establish his residence elsewhere.

(6) “He sees people there.” That is true. But he sees them only for political purposes, and politics is his business. The fact that he sees them there rather than at his Veronica Avenue residence, and the purpose for which he sees them, further confirm the conclusion that his quarters there are his business office.

(7) “He finds his brothers and sister there, where they have been since childhood.” Here we are surely grasping at straws. His brothers and sister do not reside there; they put in an appearance on working days for the sole purpose of operating their pharmacy. His association with them on the business premises during business hours is as devoid of significance as though it were a friendly visit with any other shopkeeper in the neighborhood.

Insinuated in the recitation of those listed facts, it will be observed, is the suggestion that the precise location of Mr. Mueller’s claimed residence is unimportant if only it can be shown that somewhere in the Twenty-First Ward, no matter how vaguely or generally, he has conducted some activity or had some association that might be consistent with his claim. Thus it is proposed to us that his residence might be his birthplace, or perhaps the house across the street where he lived after he had abandoned his birthplace as his domicile, or perhaps the pharmacy itself. Evidence of that character may indeed show that he “has plenty of contact with the Twenty-First Ward,” but it is disingenous to suggest that it contributes anything to the present inquiry, other than confusion. He cannot live all over the ward; and he cannot claim residence there at all unless at some specific place in it he maintains his settled habitation, his principal domestic establishment, his real home. That home can only be one among the many that comprise the ward. And when he identifies it with the requisite particularity as “my living quarters, or apartment” on the floor above the pharmacy in the business building at 3801a Lee Avenue, he brings the object of the inquiry into proper and precise focus and centers it on that specific location. Activities at other places in the ward (and more especially so when they are not of a domestic character) have no relevancy.

Mr. Mueller’s final argument runs to this effect: (a) we are construing a residence requirement of a city charter; (b) we must construe it “liberally, in favor of the right of the people to select officers of their own choosing,” State ex Inf. Mitchell ex rel. Goodman v. Heath, 345 Mo. 226, 132 S.W.2d 1001, 1004; and (c), “if there be any room for argument about the construction of the charter, the construction given it in practice is entitled to consideration,” 2 McQuillin, Municipal Corporations, Sec. 9.22, p. 536; Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467; Automobile Gasoline Co. v. City of St. Louis, 326 Mo. 435, 32 S.W.2d 281. It is argued from that premise, (a) that the voters of St. Louis have construed the residence requirement of the charter as permitting aldermen to reside outside their wards, by electing aider-men who do so, and (b), that the Board of Aldermen has adopted a similar construction by permitting non-resident aldermen to be seated. Laying aside the fact that there is no evidence in the record to support either of those conclusions, and adopting as liberal an attitude toward the question as conscience will allow, we are unable to interpret the provision in the manner desired. Its language is as clear and unambiguous as language can well be; not the faintest shadow of doubt is mirrored in its meaning. A residence requirement imposed with respect to any office is mandatory, and we are not permitted to “ * * * give words an unreasonable construction in order to uphold the right of one to hold office.” 67 C.J.S. Officers §§11 and 15, pp. 126 and 128. And we have no reason to believe that the authority which the law denies us in this particular can be supplied by the pretensions of Mr. Mueller’s constituents or by the complaisance of his colleagues on the Board.

There is but one conclusion to be reached upon the record before us: Mr. Mueller is not a resident of the Twenty-First Ward. That conclusion is sustained by unassailable proof and compelled as a matter of law. The ruling of the learned trial judge was in every respect correct. We would be remiss in the exercise of one of our pleasanter prerogatives, however, were we to fail to commend counsel for both sides on their thorough research and astute presentation of this case — a little thing, perhaps, and yet a meaningful one, often overlooked in the hustle of litigation; and as often omitted in candor.

The judgment of ouster is affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: RUDDY, Presiding Judge.

text:
    June GOFFSTEIN and Louis Lubin, (Plaintiffs) Respondents, v. Harvey F. EUGE, (Defendant) Appellant.
    No. 32002.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Motion to Quash and for a Rehearing or to Transfer to Supreme Court Denied Feb. 12, 1965.
    Application to Transfer Denied April 12, 1965.

      Harvey F. Euge, pro se.
    Ronald M. Lending, St. Louis, for respondents.
   RUDDY, Presiding Judge.

This suit was brought under the provisions of § 535.070 RSMo 1959, 37 V.A.M.S., for possession of premises located at 1803 Park Avenue, St. Louis, Missouri, occupied by defendant and owned jointly by the plaintiffs herein. Plaintiffs allege in their statement that they bring this suit for possession only because defendant refused to attorn to them as new owners of the premises and refused to pay them rent. Defendant has appealed from the judgment against him for possession of said premises.

This suit had its beginning in the Magistrate Court of the City of St. Louis on the 16th day of July, 1963, when plaintiffs filed their affidavit and statement for possession of said premises.

It was alleged in said statement that on or about the 10th day of December, 1962, plaintiffs purchased from Morris H. Erlich and Rosalee Erlich the premises described as 1803 Park Avenue, St. Louis, Missouri; that at the time of the purchase of said premises there was a lease agreement between the Erlichs and defendant for a term of two years commencing on October 1, 1961, and terminating on September 30, 1963, at the monthly rental of $35.00 per month, payable in advance on the 1st day of each month. It was further alleged that said defendant acquired possession of said premises by virtue of the lease agreement and was still in possession of said premises at the time of the purchase of same by the plaintiffs; that on or about the 5th day of July, 1963, plaintiffs by and through their agent Milton Goffstein exhibited to defendant the warranty deed by which they acquired from the said Erlichs the title and fee interest to the said premises and real estate and immediately notified defendant of their ownership' in the building. It is further alleged that at the same time said agent of plaintiffs made demand on defendant for the sums of rent due on said lease since plaintiffs acquired the premises, but defendant refused to pay said rents. The prayer was for a judgment against defendant for possession of said premises.

As a preface to our statement of the facts as disclosed by the record in this case we refer to the testimony of Milton Goffstein, agent of the plaintiffs, who testified that when he exhibited the warranty deed to the defendant and served him with the demand for payment of the rents, that defendant just laughed and said, “I don’t have to pay you rent. I’ll drag you through the courts for two years.” The witness said defendant made these statements several times thereafter.

A reading of the record in this case discloses that the defendant, who was his own attorney throughout the proceedings, availed himself of every device known to the procedural law to ward off the inevitable day of judgment. The return of service on the summons in the Magistrate Court showed that defendant was unable to be found at 1803 Park Avenue. Thereafter, plaintiffs obtained an order of publication which notified defendant of the pending civil action. On the date defendant was ordered to appear he did appear in the Magistrate Court and succeeded in obtaining a continuance. Thereafter, he requested a trial by jury, which request was denied. He then filed a motion for a change of venue, alleging that he could not have a fair and impartial trial before the citizens of the City of St. Louis, on account of the bias and prejudice of said citizens. The motion for change of venue was sustained and the cause was assigned to District No. 7 in St. Louis County. After a continuance in that court defendant did not appear on the day the case was set for hearing and the Magistrate entered a finding in favor of plaintiffs for possession of the premises at defendant’s costs.

Thereafter, defendant filed a notice of appeal to the Circuit Court of the County of St. Louis. In the Circuit Court there followed many motions filed by defendant, some attacking the jurisdiction of the court to hear the case, some for a continuance and some protesting the setting of the case for jury trial. The record is replete with dilatory pleas and attempts by the defendant to avoid the ultimate trial of this case and all of these efforts seem to be in keeping with the threat he made to the agent of plaintiffs and heretofore stated. Finally, on April 2nd, 1964, defendant was compelled to try his case before a jury.

The evidence herein supports the following statement of facts. On October 1, 1961, and for some time prior thereto Morris Erlich and Rosalee Erlich were the owners of 1801 and 1803 Park Avenue. They also seemed to be the owners of an adjoining building known and numbered as 1805-07 Park Avenue. A lease was entered into between them and the defendant herein for an upper floor of 1803 Park Avenue calling for a rental of $35 per month payable on the 1st day of each month. The lease was duly recorded and acknowledged in the City of St. Louis, Missouri.

On or about October 1, 1962, a fire and explosion occurred at 1805-07 Park Avenue. The evidence shows that the only damage was to 1805-07 Park Avenue which was a garage located next door to the building and premises occupied by defendant herein. A brick firewall approximately 20 inches in width separated 1803 Park Avenue from 1805-07 Park Avenue. All of plaintiffs’ witnesses agreed that the fire was not in the part of the building occupied by defendant and that there was no connection between the two buildings, except the firewall mentioned.

Morris Erlich, one of the owners at the time of the fire, testified that there was no damage to the premises occupied by the defendant and that after the fire he received no type of written communication from the Police Department, the Building Department or the Health Department of the City of St. Louis indicating that the premises were not tenantable. The only notice received by him was to clear the debris left by the fire at 1805-07 Park Avenue. Milton Goffstein, who later became agent of the plaintiffs herein, said he owned a dry goods store at 1801 Park Avenue, which was a part of the building in which Harvey Euge, the defendant, was a tenant. He occupied these premises at the time of the fire and explosion, which occurred on October 1, 1962, and said that the fire did not involve the building in which he and Mr. Euge were tenants. When asked about his knowledge of the fire and the explosion, he said: “I was standing several feet from the wall (firewall) at the time and I didn’t even know there was an explosion * * *. No, sir, I did not know there was an explosion until I ran outside when I heard the fire engine.”

Frank E. Altman, a witness for the plaintiffs, testified that he was a deputy chief building inspector for the City of St. Louis and that his office had no record of a fire or explosion at 1801-03 Park Avenue and no record of any damage done at that address. He said that some time after October 1, 1962, his office received a complaint about an accumulation of boxes and materials at Mr. Euge’s premises that created a fire hazard and upon his attempt to inspect the premises he was denied entrance by the defendant. On subsequent attempts and in the company of a police officer and the chief building inspector the defendant informed all of them that they could not inspect the premises. He further testified that his department had never sent any written notice to the owners of the building to repair the firewall or the interior premises of the building at 1801-03 Park Avenue.

Defendant in his testimony, concerning the fire and explosion, stated that it took place in the garage “adjacent to us,” which was attached to the premises he occupied.

Mr. Newell S. Ferry, an alleged arbitrator appointed by the defendant, produced by the defendant as a witness, testified that the firewall looked like it was all intact.

At the time of the fire and explosion on October 1, 1962, the defendant, Euge, owed to the Erlichs, the then owners of the premises approximately six months rent. Shortly after the fire occurred defendant served notice on the Erlichs that he wanted to submit to arbitration the question of the tenant-ableness of the premises pursuant to the alleged terms of the lease and he contended that he did not have to pay any rent until the arbitration was finally settled. Thereafter, a suit was filed by the Erlichs against the defendant for rent and possession of said premises. The Erlichs later dismissed their prayer for possession and it is our understanding that the suit for rent is still pending.

Defendant, in his testimony, never claimed the premises were not tenantable after the fire. Morris Erlich testified that he made no repairs to the premises and was not required to make repairs to that part of the building occupied by the defendant.

In a suit filed by the defendant, subsequent to the fire, against the Building Commissioner, Mayor, City Counselor, Chief of Police, all of the City of St. Louis, and other officers of- the City of St. Louis, he alleged that the premises he occupied at 1803 Park Avenue was his place of business and residence “and that the structure is sound, safe, and fit for human use, occupancy and habitation and that the said premises are located in a zone permitting mixed occupancy of residential and business structures and has been so used for many years prior to the enactment of any zoning or ordinance in regards thereto.”

1801-03 Park Avenue was purchased from the Erlichs on December 10, 1962, and on that date a warranty deed duly executed and acknowledged was delivered to the plaintiffs by the Erlichs. Defendant was in possession of the upper floor of 1803 Park Avenue at the time plaintiffs acquired ownership of the building. Milton Goffstein was appointed agent, in charge of the property, by the plaintiffs herein, and on July 5, 1963, he exhibited to the defendant the warranty deed by which the plaintiffs acquired the property and served on said defendant a demand to become a tenant of the plaintiffs and if he did to pay the monthly rent payable on the 1st day of each month. It was at this time that the defendant told him “I don’t have to pay you rent. I’ll drag you through the courts for two years.”

Defendant in answers to interrogatories propounded by the plaintiffs admitted that there was a display of the warranty deed and said “there was a purported attempt of a demand of some rent * * In answer to another interrogatory he admitted no payments of rent had been made. He said that no payments of rent were made due to the “question of arbitration” he had with the prior owners and further said that the “question of the arbitration still pending from their predecessor.”

In his testimony defendant admitted that the plaintiffs were the owners of the premises and admitted that the demand for the rent was made on various occasions, particularly on July Sth, 1963. It seemed to be conceded in the record that defendant has never paid any rent to the new owners, the plaintiffs herein.

In his testimony Milton Goffstein said that he had asked the defendant to become a tenant of the plaintiffs and that defendant refused.

Defendant in his brief has listed 75 alleged points under his “Points and Authorities.” None of them fully comply with Civil Rule 83.05(a) (e), V.A.M.R. Practically all of them are mere abstract statements of law that do not show how they are related to any action or ruling of the trial court. Others are merely argument or analysis of the authorities. However, an examination of the record in this case discloses that there is one single issue and that is the question of the right of plaintiffs to possession of the premises occupied by the defendant at 1803 Park Avenue, St. Louis, Missouri.

As we pointed out earlier, this suit was brought under the provisions of Section 535.070 RSMo 1959, 37 V.A.M.S., for possession only of the premises. There is no attempt upon the part of plaintiffs to recover any rents due. Section 535.070 relied upon by plaintiffs provides: “If any person purchase lands or tenements occupied at the time of such purchase by any tenant, lessee or sublessee, who shall, at any time thereafter, fail to pay rent to such purchaser, the person purchasing such property shall have the right, upon such failure, to commence proceedings before a magistrate to recover possession, as above provided.”

Sections 535.080 and 535.090 must be read in connection with Section 535.070. Section 535.080 reads as follows: “Before such proceedings are commenced, the plaintiff or his agent shall make a demand of rent, as provided, and, at the time of making this demand, shall exhibit to the tenant or person in possession of the premises the deed under which he claims title, and if payment be then refused, the owner may commence his action as aforesaid.”

Section 535.090 reads as follows: “It shall be sufficient for such person to file his complaint, verified by affidavit, stating by whom the premises were leased, and the terms of such lease or renting, and how he claims title to the same; and upon the trial of the cause, if the plaintiff show that the party in possession, or those under whom he claims, rented or leased from a party claiming title to the premises by deed, and that the plaintiff has acquired the title of the original lessor, by deed or deeds, regularly acknowledged, he shall be entitled to recover possession.”

In the action brought by plaintiffs they do not seek the recovery of rent in addition to the possession of the premises. This is because purchasers of leased premises must allege and prove an attornment to them by the tenant before they may recover rent, in addition to possession.

An “attornment” is the act of a person who holds a leasehold interest in land, by which he agrees to become the tenant of a purchaser who has acquired the fee in the land, or the remainder or reversion, or the right to the rent or services by which the tenant holds. It is an act by which a tenant acknowledges his obligation to a new landlord and requires an overt act by the tenant. Black’s Law Dictionary, 4th Edition, “Attornment”; 51 C.J.S. Landlord and Tenant § 277, p. 933.

If the tenant refuses to pay rent or attorn to the purchasers of the reversion, the purchasers have a remedy under the quoted sections of the statutes, but, as said, under such circumstances may recover possession only. Duke v. Compton, 49 Mo.App. 304; Barclay et al. v. Wyatt, 223 Mo.App. 1022, 14 S.W.2d 44; Bess v. Griffin, Mo.App., 234 S.W.2d 978.

The record evidence in this case shows that defendant leased the upper floor of 1803 Park Avenue from the Erlichs and was in possession of said premises at the time plaintiffs acquired the title of the original lessor, by deed regularly acknowledged. The record evidence further shows that the plaintiffs through their agent made a demand of rent and at the time of making the demand exhibited to the defendant, who was then in possession of the premises, the deed under which they claimed title and that the defendant then refused to pay the rent. The record shows that defendant has admitted that the plaintiffs were the purchasers of the fee and were the owners of the premises at the time the demand of payment was made July 5, 1963, and that plaintiffs, through their agent, had exhibited their warranty deed showing their ownership and title to the premises occupied by the defendant. The record further shows that the defendant refused to pay the rent when demanded and refused to become a tenant of the plaintiffs. He thereby refused to attorn to the plaintiffs as the purchasers of the reversion and as stated in the authorities cited, the plaintiffs under such circumstances may recover the possession of the premises occupied by the defendant. Duke v. Compton, supra; Barclay v. Wyatt, supra.

Defendant, as a defense, has attempted to assert the provisions of the lease which require arbitration under certain circumstances. It appears that defendant in his attempt to assert this defense has failed to understand that this is not a suit to recover rent on a lease pursuant to the provisions of §§ 535.020, 535.030 and 535.040 RSMo 1959, 37 V.A.M.S. These sections of the statutes permit a landlord to recover possession of premises and in addition thereto to also recover his debt for the amount of rent then due. The instant action is not one based on the contractual relationship of landlord and tenant. In asserting this defense defendant attempts to hold the plaintiffs to the terms of the lease. This he cannot do because he has not accepted the plaintiffs as his landlord and has refused to pay them rent.

It would be an anomaly in the law to permit defendant to assume on the one hand that no contractual relationship existed and yet hold plaintiffs to the terms of a lease, the basis of defendant’s defense. Barclay v. Wyatt, supra, l. c. 14 S.W.2d p. 45. Despite the apparent inadmissibility of this defense, the evidence concerning it was before the jury and the jury verdict indicates that the jury did not consider the defense meritorious. The attempt to assert the requirement of arbitration against these plaintiffs in their action for possession of the premises was a mere subterfuge on the part of the defendant. The record in this case shows that defendant at no time contended the premises were not tenantable. He continued to live in the said premises and in a suit, filed subsequent to the fire, he contended that the premises were in sound and habitable condition. In this respect defendant was trying to talk out of both sides of his mouth, contending in this action for arbitration, whereas, in another action, he admitted that the property was tenantable, sound and in good condition. The question of arbitration would only be an issue if defendant had attorned to plaintiffs as the new owners by paying them rent, providing, of course, that he could show that the premises were not tenantable or he was entitled to some rebate on the rent.

Despite the fact that defendant’s points relied on in this case do not comply with the Civil Rules, as indicated, we have carefully -examined the record in this case and find no errors affecting the substantial rights of the defendant even though not raised in the trial court are preserved properly for review in this court. We find that the trial court properly instructed the jury. The pleadings and the evidence in this case show that plaintiffs are entitled to a judgment for possession only. Therefore, the judgment of the trial court should be affirmed. It is so ordered.

ANDERSON, J., and FRANK D. CON-NETT, Jr., Special Judge, concur.