author: BLAIR, Judge.

text:
    James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant.
    No. 24013.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.

      Edgar J. Keating, Kansas City, for appellant.
    J. K. Owens, Kansas City, for respondent.
   BLAIR, Judge.

In this suit for divorce, the trial court dismissed the husband’s' petition. It granted the wife a divorce on her’ cross-bill, the custody of their two children and $17.50 per week for the maintenance of each child. It denied her attorney’s fees and alimony and she appeals from this last action of the court. The court undertook also to grant her another award by including in the decree this provision: “It is further ordered and adjudged by the court that the defendant (wife) be and she is hereby given one-half of the property when it is sold, together with $270.00 which is her part of the rental until sold.” The transcript justifies the assumption that the “property” to which the decree referred was the home in which the husband and wife lived before the separation, but, from the transcript, we cannot determine how title to this home was held, whether by the entireties or in some other way. Nevertheless, neither the husband nor the wife asks on this appeal that the provision of the decree undertaking to grant the wife one-half of this property when it is sold, together with $270.00, her part of the rental, be set aside or altered in any manner. The only points relied on in the wife’s brief, and she is the appellant, are verbatim: “1. The court erred in refusing to grant any alimony” and “2. The court erred in refusing to grant defendant any attorney’s fees.” The Supreme Court has held that, even if the decree affected title to real estate, V.A.M.S., Constitution, Art. V, Sec. 3, it was without jurisdiction because the husband did not appeal and, therefore, consented to this disposition of the “property” and because this appeal by the wife presents no “live” issue calling for an adjudication of title and asks no decree which would affect or operate on title to this real estate. It transferred the cause to this court. Rutlader v. Rutlader, Mo., 407 S. W.2d 906. Thus our jurisdiction of this appeal has been established by the Supreme Court and we now proceed to its exercise.

Mrs. Rutlader’s cross bill charged general indignities. The trial court dismissed Mr. Rutlader’s petition and granted Mrs. Rutlader a divorce on her cross bill, as we have said. On this appeal, as we have indicated, its action in granting her a divorce is not questioned by Mr. Rutlader, although we may say that we have reviewed the record on the law and the evidence and would reach the same result if this action of the trial court were questioned. Civil Rule 73.01(d), V.A.M.R.; 11 Mo. Digest, Divorce. Its action in granting Mrs. Rutlader custody of the two children and $17.50 per week for the support of each child or $1,820.00 per year for the support of both is also unquestioned. The only question confronting us is whether the trial court abused its discretion by failing to grant Mrs. Rutlader alimony and an attorney’s fee.

Allowances of alimony and an attorney’s fee to a wife who is granted a divorce are not mandatory, but an application for such an allowance is an appeal to the sound discretion of the court, Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; Kaye v. Kaye, Mo.App., 327 S.W.2d 496; 11 Mo.Digest, Divorce, and that discretion must be exercised always in accordance with established principles and in view of the circumstances of each particular case. Simmons v. Simmons, Mo. App., 280 S.W.2d 877; Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; Knebel v. Knebel, Mo.App., 189 S.W.2d 464. The exercise of that discretion is subject, of course, to review and it will be corrected on appeal if it has been manifestly abused. Gross v. Gross, Mo.App., 319 S.W.2d 880; Kaye v. Kaye, Mo.App., 327 S.W.2d 496; Richardson v. Richardson, Mo.App., 288 S.W.2d 20; 11 Mo.Digest, Divorce, Attorney’s fees fall in the broad category of “alimony”, Hogsett v. Hogsett, Mo.App., 409 S.W.2d 232; Noll v. Noll, Mo.App., 286 S.W.2d 58; Howard v. Howard, Mo.App., 300 S.W.2d 853; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274, and awards both of alimony and attorney’s fees are governed by the same established principles. Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679.

Concerning attorney’s fees, a husband will not be permitted to prosecute or defend a divorce proceeding without affording his wife the means to defray her expenses of litigation, if she lacks adequate means of her own. Orrick v. Orrick, Mo. App., 269 S.W.2d 153; 11 Mo.Digest, Divorce. Of course, if she does have adequate means in her own right to defray her expenses in litigating a divorce proceeding, she cannot require her husband to pay those expenses, Lehr v. Lehr, Mo. App., 264 S.W.2d 37; McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588, but this does not mean that she must be in a state of destitution before she is entitled to an allowance for attorney’s fees. Graves v. Wooden, Mo.App., 291 S.W.2d 665; Price v. Price, Mo.App., 281 S.W.2d 307. In “Determining whether or not a wife is possessed individually of adequate means, to which she may reasonably be required to resort for payment of her attorney’s fees, in instances where the wife has some means, courts compare the means of the wife with those of the husband to ascertain whether it is reasonable to require her to look to her own means or to permit her to look to her husband’s means. * * * This is equitable for a wife of little means oftentimes should have the right to look to a husband of larger means for the payment of her attorney’s fees, if the disparity in means is great enough.” Mathews v. Mathews, Mo.App., 337 S.W.2d 529; Gregg v. Gregg, Mo.App., 272 S.W.2d 855; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 82; McKenzie v. McKenzie, Mo.App., 306 S.W.2d 588; Adkins v. Adkins, Mo.App., 325 S.W.2d 364.

Concerning alimony, it is no answer that the husband, if the wife deserves alimony, temporarily is unáble to pay, if his past earning capacity and his reasonable prospects for paying in the future do not convince that his present inability will remain static and if there is a prospect that he will be able to pay what he ought to pay sometime in the future. Lampman v. Lampman, Mo.App., 367 S.W.2d 28. In such cir cumstances, the court is authorized to allow her at least nominal alimony, to be increased in the future if the husband’s financial status improves, for if no alimony is allowed when the divorce is granted, none can ever be allowed after the decree becomes final, Lampman v. Lampman, Mo.App., 367 S.W.2d 28; Herbert v. Herbert, Mo. App., 221 Mo.App. 201, 299 S.W. 840; 11 Mo.Digest, Divorce, and this would be a plain injustice. Such a ruling would be an injustice not alone to the wife but to the state as well. For a suit for divorce is not a mere controversy between the parties, but the state, although not named in the pleadings, occupies the position of a third party. McMakin v. McMakin, 68 Mo.App. 57; Milster v. Milster, 200 Mo.App. 603, 209 S.W. 620. The state has a right to its day in court when a suit for divorce and its incidents are tried and adjudged, Bishop v. Bishop, Mo.App., 162 S.W.2d 332, and courts should, in a large degree, it is said, insure that its interests are protected, Milster v. Milster, 200 Mo. App. 603, 209 S.W. 620, for society has an interest in every marriage, Wagner v. Shelly, Mo.App., 235 S.W.2d 414; 11 Mo. Digest, Divorce, and a right to avoid, if possible, a divorcement of the wife, which results in her becoming a charge on the state, if she is the innocent and injured party, and in need of support from a former husband who is able to provide it.

Determining whether alimony should be awarded, and if it is awarded, in what amount, various factors almost invariably enter into consideration, such as the financial status of the parties; the extent of their individual estates; their incomes; their obligations; their necessities; the contributions of each to the property accumulated during the marriage; the likely future prospects of each; their ages; their health; their ability to engage in gainful occupations; their children and the disposition made of their custody; the duration of the marriage; and whether it was one of affection or convenience; and the conduct of the parties which caused the divorce, and the comparative responsibility of each for it. Simon v. Simon, Mo., 248 S.W.2d 560; Carr v. Carr, Mo., 232 S.W.2d 488; Knebel v. Knebel, Mo.App., 189 S.W.2d 464. What we say regarding the principles governing an award of alimony is likewise applicable to an allowance of an attorney’s fee, for, as we have observed, the same considerations govern the award of both. Simon v. Simon, Mo., 248 S.W.2d 560; Arnold v. Arnold, Mo., 222 S.W. 996; Graves v. Wooden,' Mo.App., 291 S.W.2d 665. These general principles ought to bring this controversy into perspective after we recite the relevant facts.

We owe it to the attorneys who present this case in this court to notice that the record was made by different attorneys in the trial court.

The parties were married on June 28, 1953, and separated on June 1, 1961. This was the first marriage for both. After the marriage, Mrs. Rutlader worked until the first child was born on July 9, 1954. The second child was born on August 6, 1955. At the time of the trial, the children were about 8 and 7 years old respectively. Prior to the marriage Mrs. Rutlader worked for the federal government and her “take-home pay” was $208.00 per month and it continued in that amount after the marriage until the first child was born. After the marriage, she gave all of her take-home pay to her husband during the thirteen months before the arrival of the first child. At the time of the trial she had no income from any source except a temporary allowance previously made by the court for the support of the children. This income ended, of course, when the trial was concluded and the court substituted for it the allowance for the children we have recited it made. Both children were attending school and the oldest child suffered from a chronic and permanent affliction of the vocal chords requiring treatment and Mrs. Rutlader’s constant attention. There was no evidence that she could leave the children and obtain employment. Indeed, the evidence was to the contrary. During the marriage a home was purchased. Although ‘ there is some controversy in the record, the evidence is clear that her husband’s mother gave her $3,000.00 in government bonds for a partial payment on the home and, from this record, we easily see why the bonds were entrusted to Mrs. Rutlader rather than her husband who appears to have been rather irresponsible. At the trial Mr. Rutlader testified that the bonds were given to him, and not to his wife and that her testimony on this subject was false. Viewing the whole record and the suspicious and evasive character of his testimony, we believe that his wife’s testimony on this subject is true. The price paid for the home was $14,750.00 and at the time of the.trial the mortgage had been reduced to $2,000.00. While the court ordered that Mrs. Rutlader receive one-half of the money obtained from the sale of the property when it was sold, this record does not show that she ever did, and since the order of the court was void, Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865; Watts v. Watts, 304 Mo. 361, 263 S.W. 421, we do not feel safe in assuming that she received anything. This case was tried on July 15, 1963. It is admitted in the briefs of the parties that Mr. Rutlader had at least a net income after state and federal taxes of $5,539.83 in 1960 and $5,443.92 in 1961. Mrs. Rutlader testified that her husband told her that his actual monthly income was $1,000.00.

Mrs. Rutlader testified that she was entitled to the sum of $1,800.00 as government retirement at the time she ceased working and she “drew out” this sum and gave it to her husband to make a further partial payment on the home that was purchased. There is no contradiction of her testimony on this subject. The record shows that Mr. Rutlader had title to various parcels of real estate in his name and that she went with him from time to time to collect the rents. He testified that these properties were placed by others in his name for convenience only and that he owned none of them. She testified that he had never told her that he did not own these properties until the day of the trial. His testimony on this branch of the controversy arouses not belief but deep suspicion.

Mrs. Rutlader was an irritating witness because of her avidity to relate her grievances when questions were put dealing with an entirely different subject. Emotionally upset, as the record shows, it was not unnatural for her to wander into irrelevancies. We do not think she should be penalized for this conduct, arising as we believe it did from the strange atmosphere of the court room and her personality which was not malicious and for which she was not responsible. Immediately preceding the trial there was a pre-trial conference. The trial court before hearing any evidence announced to her that he intended to give her a divorce, the custody of the two children and $17.50 per week for the support of each child. She asked the court whether she would be granted alimony. The court repeated its previous statement of what it intended to do. She then asked for a trial and said that she had witnesses to substantiate her. The court told her he would not hear the witnesses. Actually, he only heard Mrs. Rutlader and one other witness who testified on an entirely different subject. Finally, after much insistence on her part, the court did tell her that he would give her a trial and if she was dissatisfied with the allowances he had announced in advance he intended to make, she could appeal.

In all deference to the able and honored trial judge, we think he did not accord her a fair trial on the question of alimony and an attorney’s fee for it is apparent from the record that he had decided the case in advance. We believe the reason was that she was such an irritating litigant and he lost his sense of forbearance and impartiality as sometimes happens, although very rarely. Actually he heard her case and awarded her at the end of the trial precisely what he had told her in advance was all that he intended to award. A judge presiding at a trial should at all times maintain an impartial attitude and a status of neutrality between contending parties. He should not conclude in advance of the end of the trial what he will do at that time. For this is to adjudge the controversy without hearing the evidence that ought to resolve it. He should exercise the highest degree of patience and forbearance toward the parties, consistent with decorum and an orderly trial, however irritating their emotional upset or personality may be, and any different attitude on his part is incompatible with that fair and impartial trial which courts require as due process. Duncan v. Pinkston, Mo., 340 S.W.2d 753; Harms v. Simkin, Mo. App., 322 S.W.2d 930 ; 88 C.J.S. Trial § 51; 27 Mo.Digest, Trial, For this reason alone the trial court’s denial of alimony and an attorney’s fee cannot stand.

Mr. Rutlader seeks to avoid the allowance of alimony and an attorney’s fee on the technical ground that there were no allegations in the body of the petition, only in its prayer, that she desired such awards. She testified at length at the trial that she was without resources and penniless, and she did so without any objection. Sufficient it is to say that the body of her pleading will be treated as adequately amended by force of Civil Rule 55.54. It was admitted by Mr. Rutlader that he was employed by the Jackson County Coroner’s Office and the Good Luck Furniture Company. From the coroner’s office he received $224.10 per month and from the Good Luck Furniture Company $53.27 per week. In his answering brief on this appeal, he states that he has since been discharged by the Jackson County Coroner’s Office “which is not shown by the record in this case.” We could take this statement as truth since Mrs. Rutlader filed no reply brief denying it, 3 Mo.Digest, Appeal & Error, but we do not choose to do so due to the suspicion that Mr. Rutlader’s whole testimony raises in our minds.

Mr. Rutlader asserts in his brief that “the entire record in this case shows beyond any doubt that the Appellant in this case was a woman of high and ungovernable temper; that such a person, from the record, should not be entitled to any relief at all; and the giving of the custody of the children to the Appellant, and child support at this time is giving her much more than she would be actually entitled to under the evidence.” He relates one instance of a burst of temper by Mrs. Rut-lader which the record shows resulted from provocation on his part. There is no merit in this argument and furthermore we do not agree with his general statement when we compare it with the record. Besides, a wife can be an innocent and injured party unless she has been guilty of conduct constituting grounds for divorce and there is no requirement that she demonstrate in the face of provocation the patience of Job or an angelic perfection. Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; 11 Mo. Digest, Divorce, Every one of common intelligence knows that people who live together in marriage sometimes arrive at differences and are guilty of bursts of temper which are forgiven in almost no time at all.

We must try the issues presented to us on the record de novo and it is our duty to review the evidence and the law and to enter such judgment as the trial court should have rendered, Civil Rule 73.01(d); Kinder v. Kinder, Mo.App., 267 S.W.2d 356; Richardson v. Richardson, Mo.App., 270 S.W.2d 68; 11 Mo.Digest, Divorce, (6), if the record enables us to do so.

As we have observed, the divorcement of a wife who is the innocent and injured party and in need of awards of alimony and attorney’s fees from her husband who is able to pay them, should be accompanied by such awards. But can we determine on this record what awards should be made to Mrs. Rutlader? A study of this record has led us to conclude that any award, beyond nominal alimony and nominal attorney’s fees would be the merest leap in the dark.

Far too much is lacking in this record for us to make an intelligent award of alimony or an attorney’s fee. We believe that further investigation in the trial court can develop the facts essential to a decision which were not developed in the trial court. Counsel representing parties in suits for divorce in trial courts ought to recognize their responsibility to the court, their clients, the state and themselves to develop all relevant facts fully and not leave it to the trial or appellate courts to grope about in a dark field where perfunctory trial methods are responsible for the absence of light.

On this record we are convinced that Mrs. Rutlader is entitled to alimony and to an attorney’s fee in some amount, and we so hold, but the record before-us does not enable us to say in what amount. We will never stand aside from our duty to decide when the facts warranting a decision are before us, but they are not here. Looking backward to the standards that must be taken into account before alimony or an attorney’s fee may be allowed to a wife, there is nothing to show that Mrs. Rut-lader ever received one-half of the property when it was sold, if it was ever sold, or the price for which it was sold. We know it had not been appraised at the time of the trial and she testified that Mr. Rutlader had permitted it to “run down”. We know she had no income at all. We do not know what obligations she may have and the record is too scanty for us to determine her necessities, although we know they must exist. We do know that one daughter must be given speech therapy treatments three times a week at $4.00 a treatment, and occasionally, must be treated by another doctor who charges $15.00 for each visit. We recognize that the support for the children has been fixed by the trial court and from it there is no appeal. Yet we know that it is necessary for Mrs. Rutlader to travel from Kansas City, Missouri to Kansas University Medical Center at her own expense to obtain treatment for the afflicted child. We know that at the time of the trial there seemed to be no prospect that she would be able to leave the children and to go to work. We know that she made substantial contributions during the marriage to the purchase of the home. We do not know the probable future prospects of Mr. Rutlader. We do not know the respective ages or the condition of health of the parties. We do not know whether Mr. Rutlader can obtain employment to supplant that which he says in his brief he lost at the coroner’s office. We cannot tell from this record with any degree of satisfaction whether his statement to Mrs. Rutlader that his income was $1,-000.00 a month was true or false, for the record on this subject is far too sketchy. We do know that Mrs. Rutlader cannot live on nothing at all.

Obviously, the issues relating to alimony and an attorney’s fee have been insufficiently developed. Reversal and remand is a customary procedure in divorce cases where the evidence on a particular issue has not been developed at the trial. Niedergerke v. Niedergerke, Mo.App., 271 S.W.2d 204; Ridgley v. Ridgley, Mo.App., 370 S.W.2d 679; Carrow v. Carrow, Mo. App., 294 S.W.2d 595; Mayor v. Mayor, Mo.App., 351 S.W.2d 810; Jeans v. Jeans, Mo.App., 300 S.W.2d 870; Simon v. Simon, Mo., 248 S.W.2d 560. We believe it is incumbent upon the parties and their attorneys, unless they can make some voluntary disposition, to make a further effort to discover and present in the trial court, at a further hearing, facts constituting an accurate and legal basis for determining the amount of alimony and an attorney’s fee due Mrs. Rutlader. We think that such a hearing, diligently pursued, will shed light upon these questions and furnish a basis which will enable the trial court to make some proper award. Mathews v. Mathews, Mo.App., 337 S.W.2d 529.

The portion of the decree denying Mrs. Rutlader an award for alimony and an attorney’s fee is reversed and this part of the cause is remanded for such additional action on this branch of the case as the court and the parties may determine to take.

All concur.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    In the Matter of B. S. P., a Minor, W. R. P., Petitioner, v. W. W. W. and M. L. W., his wife, Respondents.
    No. 32463.
    St. Louis Court of Appeals. Missouri.
    Feb. 2, 1967.
    Rehearing Denied Feb. 21, 1967.
    Thurman, Nixon, Smith & Howald, Hills-boro, for petitioner.
    Bahn & Saitz, St. Louis, W. H. S. O’Brien, Festus, for respondents.
   WOLFE, Judge.

This is an original, action by writ of ha-beas corpus in which the petitioner seeks to obtain custody of his minor daughter. The respondents are the maternal grandparents of the child and its mother is deceased. The grandparents filed their return to the writ and asserted in the return that the best interests of the child would be served by leaving it in their custody. They alleged that the petitioner was an unfit person to have custody of the child. They alleged he had abandoned the child before the death of his wife, the child’s mother, and that he failed to support the child. They further alleged he had asserted that he was not the father of the child. There were other allegations in the return which charged that he drank excessively and that he had no suitable home to which he could take the child if its custody were awarded to him.

The return was denied by the petitioner thus presenting to this court issues of fact requiring trial. Pursuant to § 211.051, RSMo 1959, V.A.M.S., this court certified the cause to the Juvenile Court of the Twenty-third Judicial Circuit, County of Jefferson, State of Missouri, for hearing and recommendations. A hearing on the issues was had and the Juvenile Judge filed with this court a full transcript thereof. He also filed his findings and recommendations. He recommended that the petitioner, the father of the child be awarded custody and the grandparents, the respondents, have here filed their exceptions to the recommendations the Judge has made.

The first exception to the conclusions of the Judge of the Juvenile Court is that he erred in holding that the respondents had failed to prove that the father was an unfit person to have custody of the child. The second exception is that the Judge of the Juvenile Court erred in not holding that the welfare of the child would be best served by awarding custody to the respondents. The third exception is a contention that the Judge should have recommended permanent custody to the respondents with visitation rights and temporary custody in the petitioner.

In passing upon the exceptions filed we will not limit our review to the specific exceptions set out but we will review the entire record to determine whether or not under all of the evidence adduced we reached the same results as those recommended by the Judge of the Juvenile Court. Our guide in making that determination was set forth by this Court in Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949. In that case the parent of a child also sought custody of an infant child which, as in the case before us, was then in the custody of its grandparents. In that case we stated that we would not limit our consideration solely to the natural right of the parent but we went on to say at 1. c. 951:

“There is, however, a still further issue which inheres in the case by reason of its subject matter. This is the issue of the welfare of the child, which is an issue always to be kept in view in all legal proceedings involving the custody and control of a minor child as to which the state stands in the relation of parens patriae. In other words, whenever a minor child is brought within the jurisdiction of a court for an adjudication with respect to the question of its custody, the child becomes the ward of the court; and in determining the question of its ultimate disposition, the child’s well-being is of paramount consideration, and the rights and claims of the contending parties, even in the case of the parents themselves, must be subordinated to what the court may conclude will be for the best interests of the child. Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286.
“ * * * In such an instance the nature of the inquiry makes the proceeding one of an equitable nature; and the question of either party’s strictly legal right will be measured in terms of the welfare of the child, Ex parte Badger, supra; * *

The De Castro case was cited and quoted with approval by the Supreme Court in the case of In re Duncan, Mo., 365 S.W.2d 567, 4 A.L.R.3d 1270 and is our guide for the determination of this matter.

The petitioner had known the daughter of the respondents since their high school days. They later both attended college in the same town. Early in 1963 they became engaged to be married and planned their wedding for sometime in August. On May 25 they spent the night together in a motel and had sexual intercourse. On July 6 the petitioner was informed by one of the respondents that his betrothed was pregnant. The date for their marriage was advanced and the petitioner married respondents’ daughter on July 12, 1963. The girl child, whose custody we are here considering, was born on February 18, 1964.

The physician who attended the mother at the birth of the child testifed that it was a full term baby and that it was conceived around May 26, 1963. The mother was confined in the hospital for two weeks after childbirth as surgery was required a week after the child was born. Upon release from the hospital the mother, the baby and the father, the petitioner, stayed at the home of the respondents. They stayed there for eight weeks before moving back to their own home. After that for some period of time the maternal grandmother, respondent, went six days a week to her daughter’s home to look after her daughter and the baby.

The mother of the child was again hospitalized in December, 1964, for two weeks during which time the baby stayed at the respondents’ home. When the child’s mother was released from the hospital she again went to the respondents’ home and stayed there with the baby and the petitioner until the second week in January.

Again the mother of the child was hospitalized for mental disturbance and given shock treatments. She had twice attempted suicide. She had a great dislike for the petitioner’s mother and at her request the petitioner wrote a note promising that in the event his wife died the maternal grandparents should have the child and that his own parents would have no visitation privileges without his and his wife’s parents’ consent.

The petitioner bought a home and both he and his wife and daughter were living in it when he and his wife had a disagreement and he left her on October 6, 1965. His wife had access to a savings account and he paid all of the bills as they arrived. He made four or five trips back to his home in attempts at reconciliation. On the last trip he made on October 31, 1965, he found his wife unconscious on the floor of the garage. She apparently had succeeded in her third attempt at suicide. He went in to see if the child was safe and found it so. He then called his wife’s parents. They again took the child to their home and after the funeral of their daughter they sought to keep custody of it. This gave rise to the present action by the child’s father.

Much of the 500 page transcript of the hearing before the Judge of the Juvenile Court consists of evidence offered by respondents in an effort to prove that the petitioner was not in fact the father of their granddaughter. They offered evidence of their daughter’s intimate association with other men. No purpose would be served by any further statement regarding the evidence thus offered.

The grandfather respondent is a man 49 years of age. He is a successful businessman who has had many civic, social, church and fraternal activities in the community in which he lives. He has enjoyed a. good reputation. His wife is 47 years of age and is well spoken of but there was testimony by the petitioner that at times she drank to excess. This was denied by others. The respondent grandmother was very solicitous of her daughter’s and granddaughter’s welfare and helped and cared fof both of them. The respondent grandfather was liberal in helping the petitioner and his wife set up a home and he loaned them a total of $6,323.24 all of which has been repaid except $1,329.10.

There was evidence that the petitioner had been drunk on two occasions when he was in college. He testified that he did drink in taverns at- times. There was evidence that on one occasion when his wife was in the hospital he visited a tavern and danced with some women present and thereafter drove to the parking lot of their apartment and talked with them there. The nature of the conversation was not developed. There was also testimony of some witnesses that they never saw him take care of his child.

The petitioner was active in athletics in high school and college. He saw service in the army and was honorably discharged. He is currently living with his parents. His mother has loved and cared for the child at various times that it was in her custody after the death of its mother. She would take care of it during her son’s working hours. Petitioner’s parents are highly regarded and have the reputation of being good, responsible people. The petitioner is employed at a salary of $600 per month. He also bears a good reputation and is highly regarded by those who have known him from his early childhood to the present time. He lives with his parents in the home which they own.

The respondents no longer press their charge that the petitioner is not the father of the child. Both the evidence and the strong presumption of the legitimacy of the child bom in wedlock leave no doubt that the petitioner is the father. This presumption applies to a child born in wedlock though not conceived in wedlock. Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745; Ash v. Modern Sand & Gravel Co., 234 Mo.App. 1195-, 122 S.W.2d 45; F. v. F., Mo.App., 333 S.W.2d 320.

As to the welfare of the child, we have an able and honorable father with a suitable home for the child on the one hand, and indulgent and possessive grandparents on the other. There has been no showing of any unfitness on the part of the father. Ex parte De Castro, 238 Mo. App. 1011, 190 S.W.2d 949, above cited and quoted, contains a further statement at 1. c. 959 which is:

“There are two principles of law by which the facts are to be measured in determining the Commissioner’s recommendation in the case.
“The first of these propositions is that under our law a parent has a natural right to the custody of his minor child, a right which public policy demands shall be held inviolate, and which, in a contest between the parent and some third person, is not to be denied the parent unless it is made manifest to the court that the parent, for some strong and cogent reason,-is unfit or incompetent to have his child, so that the welfare of the child itself demands a different disposition. * * *
“The second and equally important proposition is that the natural parent’s right to the custody of his child must be determined with respect to present, existing conditions, with evidence of past conditions being material only to the extent that they clarify and cast light on the existing conditions. * * * ”

We find that the welfare of the child will be best served in the custody of its natural father and direct the respondents to give the child forthwith to the petitioner.

ANDERSON, P. J., and RUDDY, J., concur.


author: CROSS, Judge.

text:
    William N. POLLARD, Appellant, v. H. R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
    No. 24621.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.

      William N. Pollard, pro se.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
   CROSS, Judge.

William N. Pollard, an inmate of the Missouri State Penitentiary, brought this action against the warden of that institution by filing in the Circuit Court of Cole County a writing entitled “Petition for Declaratory Judgment”. Plaintiff’s petition is un-skill fully drawn and contains considerable extraneous matter in the nature of argument and conclusions. Nonetheless, it contains allegations substantially to the effect that plaintiff is a prisoner confined in the penitentiary as the result of a criminal conviction; that he intends to file a post-conviction legal proceeding in the Supreme Court to challenge the validity of the judgment under which he is held as a prisoner; that the medical records of certain United States army hospitals pertain to plaintiff and his mental condition, and are essential to the preparation of his post-conviction proceeding; that pursuant to plaintiff’s request by mail “said records were issued by the United States Government” and mailed to plaintiff at the penitentiary but were intercepted by defendant warden and withheld from plaintiff; that the records referred to consist of “85 pages of photostatic copies of Army Records of William N. Pollard” and contain “Enlistments, Discharges, Medical findings of several Boards and Officers”; that the warden and his agents and clerks are still holding possession of the documents in question, have refused plaintiff’s numerous requests for their possession and will not allow him to make copies thereof or use them in preparing his intended legal proceeding, and, that “he is entitled to review the records before seeking a review in the courts of Missouri”. From further allegations of the petition to the effect that prior to the trial at which plaintiff was convicted he underwent a mental examination by a court appointed physician, that such examination was perfunctory and was made under circumstances “which were not favorable to such an examination to my prejudice”, it is reasonably inferable that plaintiff intends to assert, as a ground for attacking the legality of his conviction and imprisonment, that he was denied the legal right to have a reasonably sufficient mental examination in connection with the defense of his case, and was thereby prejudiced, and that he desires to use the “mental records” as evidence on that question. In concluding his petition plaintiff says “this Honorable Court should issue a Writ of Quo Warranto against the respondant to present the petitioner’s Mental Records, Documents in Court to be dealt with according to Law, and that said Records and Documents be ordered submitted to the petitioner hence forthwith”. He finally prays that “this Court will order his relief sought herein granted and the petitioner’s Mental Documents and Records to be properly restored and delivered to the petitioner so he may proceed to petition for relief of grievances from his prison imprisonment”. Attached to the petition was an “Application for Subpoena Duces Tecum” asking that the warden be required to produce in court, for inspection therein and as evidence, “all Mental Records and Documents” concerning plaintiff.

The defendant warden filed no responsive pleading, made no appearance in the cause, and stood in default when the trial court rendered its judgment, apparently without hearing or any appearances, as shown by the following quoted portion of the transcript: “Thereafter, on September 21, 1965, the Court takes up and considers Petition for Declaratory Judgment and for Quo Warranto, together with Application for Subpoena Duces Tecum, and having considered said petitions and being fully advised in the premises, enters the following order on the docket: Application for subpoena duces tecum, for Declaratory Judgment and for Quo Warranto denied”. Plaintiff in proper time filed an appeal addressed to the Supreme Court. Thereafter that court determined it was without jurisdiction and transferred the cause to this court. Pollard v. Swenson, Mo., 403 S.W. 2d 601.

We have no brief from plaintiff in conventional form. Defendant has filed a brief in response to which plaintiff has filed what he designates as a “Reply Brief”. From the latter document and portions of plaintiff’s petition labeled “Arguments” and “Conclusions” we understand plaintiff’s contentions to be that he is entitled to inspect and “to review the records” presently in the warden’s possession, and further entitled to an order of court directing that official to deliver to him possession of the records. Our disposition of this appeal is governed by Civil Rule 73.01(d) V.A.M.R., by which we are required to review the case de novo upon both the law and the evidence and thereby reach our own conclusions. Wilber v. Wilber, Mo.Sup., 312 S.W.2d 86; 10A Mo. D., Declaratory Judgments, Key No. 393. However, our review necessarily will be confined to questions of law, since there is no evidence before us.

The trial court’s judgment denying plaintiff any relief on his petition without hearing evidence thereon is tantamount to a ruling that the petition is insufficient as a claim for relief, and is in effect a dismissal of plaintiff’s action. The propriety of such action depends upon whether the averments of the petition “invoke substantive principles of law which entitle plaintiff to relief”. Wells v. Henry W. Kuhs Realty Company, Mo.Sup., 269 S.W. 2d 761, 47 A.L.R.2d 1038. To that question we now direct attention and proceed to examine the petition, particularly from the standpoint of whether its averments are sufficient to entitle plaintiff to declaratory relief. Here noted are certain principles applicable to the question: The declaratory judgments statutes are remedial in their nature. Their purpose is to afford relief from uncertainty and insecurity and such statutes are to be liberally construed. Rowland v. City of St. Louis, Mo.App., 327 S.W.2d SOS; Section 527.120 V.A.M.S. A declaratory judgment action is a particularly appropriate method for determining the powers and duties of the various governmental agencies, but in such cases the court must be presented with a justi-ciable controversy appropriate for judicial determination. City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411. A petition for a declaratory judgment must present a real and substantial controversy admitting of specific relief as distinguished from an advisory decree upon a hypothetical state of facts. Transport Manufacturing and Equipment Co. v. Toberman, Mo.Sup., 301 S.W.2d 801. In determining the sufficiency of a petition to state a claim for declaratory relief, the question is not whether the petition shows that plaintiff is entitled to a declaration in accordance with the theory he states, but rather, whether he is entitled to a declaration of rights at all. Transport Manufacturing and Equipment Co. v. Toberman, supra; City of Creve Coeur v. Creve Coeur Fire Pro. Dist., Mo.Sup., 355 S.W.2d 857. The pertinent question in determining whether a petition states a claim for declaratory relief is whether under the allegations made plaintiff has stated enough to invoke substantive principles of law which entitle him to some relief. “And it is not decisive that a plaintiff is not entitled to all the relief sought, so long as he has averred enough to entitle him to some relief. Anderson, Declaratory Judgments, Vol. 1, Sec. 307, pp. 708, 709”. City of Creve Coeur v. Creve Coeur Fire Pro. Dist., supra.

After considering the petition in the light of the principles above stated, we reach the conclusion that the pleading is sufficient as a statement of a claim for declaratory relief. Its averments establish without question that there is a justiciable controversy between plaintiff prisoner and defendant warden in that the former claims to have the legal right to inspect, copy and possess the documents in question, and the latter disputes the existence of such right. The controversy as pleaded is real, substantial and presently existing, and it admits of specific relief as distinguished from an advisory decree upon a hypothetical state of facts. It has given rise to uncertainty as to plaintiff’s legal rights in the premises and defendant’s duty as an administrative official. The pleading invokes a remedy peculiarly appropriate for terminating the controversy since it involves a question relating to the powers and duties of the defendant warden as the representative of a governmental agency.

It is our opinion that under the averments of plaintiff’s petition he is at least entitled to a declaration as to whether or not he has a legal right to inspect, copy, use or take the mental records into his possession. This question may not be resolved except by a consideration of all pertinent facts and circumstances as may be shown by evidence. Factors of highly material significance in the court’s determination would be the nature of the documents themselves as the res of the controversy; the civil rights and status of plaintiff as a convicted prisoner under confinement subject to reasonable regulation and control by prison authorities as permitted by Section 216.020 V.A.M.S.; and, the extent of lawful authority vested in the defendant warden by the cited statute to impose reasonable and uniformly applied regulations upon inmates of the penal institution in his charge in the interest of its orderly administration. The trial court’s denial of declaratory relief without evidence to develop the facts essential to a proper determination of the controversy was error.

As a reviewing court we are not able to determine the issues raised by the petition without evidence before us. Consequently the cause will be remanded for further proceedings at which evidence may be heard. V.A.M.R., Civil Rules 73.01 (d), 83.13; Saville v. Bradshaw, Mo.Sup., 359 S.W.2d 676; In re M_P_S_, Mo. App., 342 S.W.2d 277; Buchanan v. Cabiness, 240 Mo.App.' 829, 221 S.W.2d 849. And, after evidence is heard, it will be for the trial court to rule the litigated issues, both of law and fact, in the first instance. Although certain questions have been briefed and submitted to us as appeal issues we withhold comment thereon. Such discussion at this time would be premature and inappropriate since those issues have not been developed by evidence. It is not the function of this court on appeal from a judgment of dismissal to make an analysis of the law under which the rights are claimed or to determine whether plaintiff is entitled to the declaratory relief he seeks in accordance with the theory he states. City of Creve Coeur v. Creve Coeur Fire Pro. Dist., Mo.Sup., 355 S.W.2d 857.

Defendant’s brief presents the point that “Declaratory judgment was not the proper action” and argues that “the court may neveH grant coercive relief”. The point and argument are without basis. Standard text authority and Missouri decisions are in agreement that in a declaratory judgment action the court is not restricted to a mere declaration of rights in granting relief but may also administer affirmative or coercive relief. Borchard, Declaratory Judgments, pp. 428^438; Anderson, Declaratory Judgments, Second Ed., Sec. 451, pp. 1055, 1061; Mashak v. Poelker, Mo.App., 356 S.W.2d 713; City of Creve Coeur v. Creve Coeur Fire Pro. Dist., Mo.Sup., 355 S.W.2d 857. See also, Hyde, Declaratory Judgments, 26 Wash. U. Law Quarterly, 484, 485. On the subject, Borchard (pp. 432-433) states the following: “The advantage of combining alternative or cumulative prayers for relief, declaratory and coercive, in one petition, is considerable. While it is true that every traditional judgment carrying a coercive decree necessarily involves some finding or adjudication on the fact or law, as a foundation for the decree, the advantage of praying a specific finding of the rights of the parties, supplemented by injunction, damages, specific performance, etc., lies in the fact that, while the injunction or other decree may for some technical reason be withheld or denied, the declaration may yet be issued and, as a conclusive determination of the rights of the parties, serves all essential purposes. Execution is ancillary to adjudication, and can easily be obtained should the adjudication be defied”.

Defendant also submits that plaintiff’s request for a writ of quo war-ranto should be refused. With this contention we must agree. Obviously plaintiff misconceives the nature and purpose of a proceeding pursuant to an information in the nature of a quo warranto. “The writ of quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of error. It is not to be used to prevent an improper exercise of power lawfully possessed. Its purpose is solely to prevent an officer or a corporation or persons purporting to act as such from usurping a power which they do not have”. State ex inf. McKittnick v. Murphy, 347 Mo. 484, 148 S.W.2d 527. See Civil Rule 98 V.A.M.R. “Quo Warranto”.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

HOWARD, P. J., concurring.

BLAIR, J., not participating.

      . See Austin v. Harris, D.C., 226 F.Supp. 304; Edmundson v. Harris, D.O., 239 F. Supp. 359; Bailleaux v. Holmes, D.C., 177 F.Supp. 361; 24 Mo.Dig., Prisons, <§= 4; 42 Modern Federal Practice Dig. Prisons,


author: MAUGHMER, Commissioner.

text:
    UNIVERSITY BANK, Respondent, v. Richard F. MOCK, Appellant.
    No. 24605.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    William H. Costello, James H. Coonce, Kansas City, for appellant.
    Bernard L. Balkin, Lloyd S. Heilman, Kansas City, Achtenberg, Sandler & Balkin, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This was a court tried case. We review the action at law upon the law and the evidence as in suits in equity. Rule 73.01 [d] V.A.M.R. On or about April 1, 1963, the defendant Richard F. Mock, made his check in the amount of $3,000 drawn on the Grand Avenue Bank of Kansas City, Missouri and payable to Sanders Motors. This check was either delivered to or came into the possession of Carl Sanders, d/b/a Sanders Motors. On this same date Mr. Sanders endorsed and delivered it for deposit to the University Bank of Kansas City, Missouri, plaintiff herein. On or near April 4, 1963, the University Bank, having placed its endorsement thereon, presented the check through the Kansas City Clearing House to the Grand Avenue Bank for payment. Payment was refused because Mr. Mock, maker and defendant, had issued a stop payment order, directing Grand Avenue Bank not to pay the check. Plaintiff thereafter demanded payment from defendant, which demand was refused. On April 4, 1964, plaintiff filed suit against defendant, alleging the above facts in substance, and in addition, that since April 1, 1963 it had been the owner of the check. Plaintiff prayed judgment for $3,000 and interest at 6 percent from April 4, 1963.

For his answer, the defendant Mock asserted that Carl Sanders “was never in lawful possession of or the lawful owner” of the check; that Sanders did not pay or give any consideration for the instrument; that plaintiff’s sole claim to ownership is the ownership of Sanders; that plaintiff is not “a holder in due course” and “not an innocent owner, having paid no consideration for said check”. Defendant called no witness to explain and in fact offered no affirmative evidence as to how Sanders obtained possession of the check or what consideration, if any, he gave for it.

Mr. Logan F. Wyrick, who in April, 1963, was president of the University Bank, was called as a witness by plaintiff. Mr. Wyrick said that on April 1, 1963, Sanders Motors made two deposits in the University Bank, the $3,000 check here in question, and one for $8,325. Photocopies made from the microfilm records of the bank were introduced, showing both deposits. The witness called attention to a difference on those two April first deposit slips. The one for $3,000, he said, “has an okay by our cashier Ed Donnell”, “that shows that the funds are free to be paid on, that we had given immediate credit on the account for the $3,000, due to the fact that I knew Mr. Mock personally, knew him as a man of good reputation, and this check was verified from the Grand Avenue Bank that the check was good and a satisfactory account”. He said the $8,325 deposit ticket had a “ ‘hold’ marked on this of $3,475 or five days” which meant “we were supposed to hold the funds, the $3,475 as uncollected for five days from April the 1st, 1963”.

Some controversy developed as to the Sanders daily balance with the bank from April 1 to 4, 1963. The witness Wyrick contended that the daily balances shown on the ledger sheet were not “true balances” because same included some uncollected items, many of which were actually never collected. Mr. Wyrick testified that on April 2, 1963, the bank honored or paid out checks against the Sanders account, totaling $3,282.33. He said that after the $3,000 check had been returned and as of April 11, 1963, the Sanders account was overdrawn by $4,422.64, but they later collected about $700 thereon, and that the account at the time of the trial was overdrawn by $3,722.-64.

A judgment was entered on March 28, 1966, and recites findings that “the plaintiff gave immediate credit for defendant’s check to the account of the depositor, and that the entire credit was exhausted by withdrawals of said credit and that pursuant to law, plaintiff became the owner of defendant’s $3,000 check and that plaintiff is entitled to recover judgment against the defendant in the amount of $3,000, plus interest at 6% per annum from April 4, 1963 to the date of this judgment, in the sum of $532.50”. Judgment accordingly in the sum of $3,532.50, with costs, was duly entered.

Defendant has appealed and lists three assignments of error. Number one asserts that under Section 402.030, V.A.M.S. any credit given to a depositor is revocable except as to that part actually withdrawn, and therefore title to the $3,000 check did not immediately pass to plaintiff bank. Section 402.030, supra, after setting forth that unless there is an agreement otherwise, such depositor bank shall be “agent of the depositor for its collection”, concludes “where any such bank allows any revocable credit for an item to be withdrawn such agency relation shall nevertheless continue except the bank shall have all the rights of an owner thereof against prior and subsequent parties to the extent of the amount withdrawn”.

Considering the testimony of Mr. Wyrick and the bank exhibits (the only evidence presented) it seems reasonable to conclude that plaintiff bank gave immediate credit for the $3,000 check. Even if only “revocable credit”, as described in Section 402.030, supra, was given, nevertheless it was fully exhausted on April 2, 1963, or two days before plaintiff learned that payment on the check had been stopped. In either event, plaintiff bank appears to have been possessed of “all the rights of an owner thereof”, certainly to the extent of the withdrawals which exceeded the $3,000 credit.

The witness Wyrick testified that plaintiff bank on April 2, 1963, paid out six checks against the Sanders account, totaling $3,282.33 and that thereby the $3,000 credit was used up and Sanders was overdrawn. In this connection defendant says that two of those six checks were items of $840 and $900, which had been deposited prior to April 1, 1963, and therefore were not chargeable against the $3,000 check credit. Those two particular items had been received before April 1, and Sanders had been given revocable credit therefor. The two checks were uncollectible, or at least were not collected by plaintiff bank, and when they were returned on April 2, were, with other items, made good at least partially by charging same against the $3,000 Mock check credit. We believe such procedure was authorized.

In Citizens Fidelity Bank & Trust Co. v. Kilpatrick, Mo.App., 231 S.W.2d 301, 303, the defendant Kilpatrick had delivered his check for $452.50 to one Wooten, who deposited it in the plaintiff bank and was permitted to withdraw the entire amount. The check thereafter was returned unpaid because of insufficient funds. At that time Wooten’s bank balance was $5.29. The appellate court reversed the trial court judgment for defendant and directed entry of judgment for plaintiff for the amount of the check, less a credit of $5.29, the amount of Wooten’s balance. The court pointed out that under the common law and in the absence of an agreement to the contrary, the bank became owner of the check and not the agent of the depositor, for collection. The opinion then goes on to recite that the common law rule has been changed by statute and said that under Section 8174, RSMo 1939, (now Sec. 402.-030, supra), the bank became the agent of the depositor for collection, except — quoting the statute) — “ * * * where any such bank allows any revocable credit for an item to be withdrawn such agency relation shall nevertheless continue except the hank shall have all the rights of an owner thereof against prior and subsequent parties to the extent of the amount withdrawn’1. (Italics added).

In the case before us it affirmatively appears that the Sanders account was overdrawn at all times from and after April 2, 1963. Therefore, plaintiff bank could recoup no part of the $3,000 credit from the Sanders account and no credit or setoff would therefore arise as in the Kilpatrick case. We deny this first assignment.

Secondly, defendant asserts that plaintiff failed to sustain the burden of proof and that the judgment is not supported by the evidence and is against the weight of the credible evidence. As heretofore summarized, the testimony of witness Wyrick and the exhibits (check and deposit slips) which constituted the only evidence before the court, tend strongly to show that plaintiff extended immediate credit and this credit was entirely extinguished by April 4, when plaintiff learned for the first time that payment had been stopped. From such evidence, which was controverted only by suggestions posed on cross-examination, we must conclude that the trial court’s findings were supported by substantial, credible evidence and we agree with such findings.

The third point asserts that plaintiff failed to produce evidence as to plaintiff’s “true balance” on the dates in question and that such failure gives rise to a presumption that such evidence would be unfavorable, but contends the trial court ignored such presumption. The “true balance” on any given date would, we presume, be the difference between the depositor’s duly established credits, including revocable credits, less not only paid debits, but items in transit for collection, including the revocable credit item itself, which later proved to be in fact uncollectible. This third point is without merit.

Appellant says plaintiff had the burden of proof and invites our attention to certain appellate opinions on this proposition. We agree that plaintiff had the burden of proof but have concluded that plaintiff carried this burden by substantial, credible evidence to the satisfaction of the trier of the facts, before the trial court and here.

We shall refer briefly to two cases cited by defendant under his Point Three,

In Whitmore v. American Railway Express Co. et al., 219 Mo.App. 294, 269 S.W. 654, 657, plaintiff sued for the wrongful death of her husband. After the alleged injury he had been treated by two doctors of his selection, but plaintiff called neither as a witness. Plaintiff objected to any inquiry as to the nature and purposes of such treatments on the ground “that the secrets of the sick room would be revealed” and her counsel' admonished plaintiff while testifying to tell only what she, of her own knowledge, knew. The trial court sustained the objection. The appellate court ruled that the procedure followed was suppression of evidence, created an unfavorable inference or presumption and amounted to error.

State ex rel. St. Louis County Transit Co. v. Walsh, Mo.App., 327 S.W.2d 713, was a proceeding in prohibition to prevent the circuit judge from entering an order requiring production of photographs for inspection and copying. The photographs were taken by the motor bus operator at the accident scene. The writ was denied and it was held that spoliation or suppression of evidence gives rise to an unfavorable inference and destruction of written evidence without satisfactory explanation gives rise to an inference unfavorable to the spoliator.

The two cases just referred to are quite different from the one before us. In our case all evidence in existence was presented or was available. The testimony of no witness was restricted and a witness (Wyrick), who was fully conversant with all bank records, was not only called by plaintiff but was available for full and free cross-examination. Besides, plaintiff concedes that it charged items given revocable credit in March, on April 2d against the $3,000 credit. Plaintiff has furthermore given affirmative testimony and evidence that the whole $3,000 was used up on April 2d and Sanders was still overdrawn. In the face of this evidence it is difficult to see how a determination of the “true balance” would benefit defendant. Certainly the plaintiff bank records kept in the regular course of its business did not and could not on any particular day, reveal the “true balance”. The only way it could now be compiled would be to take into consideration on any given date the outstanding items for collection which thereafter proved to be uncollectible and deduct same nunc pro tunc from the ledger balance on that given date.

The trial court found that plaintiff bank on April 1, 1963, gave immediate credit to the account of its depositor Sanders for defendant’s $3,000 check and that the full amount of such credit -was exhausted by-withdrawals. We agree and would add that this credit was fully exhausted on April 2, 1963, and prior to April 4, 1963, when plaintiff bank learned for the first time that payment on the check had been stopped by defendant, the maker. It is our opinion that these findings are supported by the evidence and are decisive. However, even if only revocable credit were given, it was exhausted on April 2, 1963, and under Section 402.030, supra, plaintiff bank had “all the rights of an owner thereof against prior and subsequent parties to the extent of the amount withdrawn”, which in this instance, would cover the whole $3,000 credit item. We believe the findings are for the right party.

The judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM.

The foregoing opinion by MAUGHMER, G, is adopted as the opinion of the Court.

All concur.


author: SPERRY, Commissioner.

text:
    KANSAS CITY, Missouri, Plaintiff-Respondent, v. Fred L. ROBERTS, Defendant-Appellant.
    No. 24375.
    Kansas City Court of Appeals. Missouri.
    Feb. 2, 1967.
    Roy W. Brown, Compton & Brown, Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, Dan G. Jackson, III, Charles A. Lewis, Asst. City Counselors, Kansas City, for respondent.
   SPERRY, Commissioner.

Defendant was charged in the municipal court of Kansas City, Missouri, with stealing merchandise of the value of $96.23, in violation of the ordinance of Kansas City. He was tried and convicted. He appealed to the Circuit Court where he was tried and convicted. From a sentence of ninety one (91) days at the municipal farm, defendant appeals.

In support of its charges plaintiff offered the testimony of several witnesses. Mrs. Bush, who had been an employee of the Kansas City Police department but who was, at the time of the trial, a detective in the Jones Store, located at the Blue Ridge Mall, in Kansas City, Missouri, stated that, at about 2:00 P.M., January 12th, 1965,. defendant, whom she knew, accompanied by two other men, one of whom she knew, entered the ground floor of the store; that defendant wore a blue sweater and dark trousers; that one wore a heavy overcoat, and that the other wore a ski jacket. She stated that they went up the escalator to the Second floor; that the witness followed them on the escalator and was never more than a few feet from them; that, on the second floor, they circled around to the clock department; that defendant took from the display case a small clock and handed it to a Mr. Kearnes, one of his companions; that a clock that was offered in evidence was one that she saw defendant take and give to Kearnes; that defendant also took a second clock and handed it to Kearnes; that one of the clocks in evidence was the second one so taken; that the three men then went downstairs on the escalator; that she was within eight feet of defendant when the clocks were taken; that she “called” for help and then followed the men downstairs and out of the west door of the store; that, outside, on the Mall, Kearnes took the clocks from under his overcoat and placed them in a flower planter, near the door; that witness then arrested these three men. In answer to a question by the court, to which no objection was made, she stated that these acts all occurred in Kansas City, Missouri. . She was unable to state the value of the clocks but stated that another witness would testify as ■ to value.

She testified to the effect that she travelled up the escalator six steps behind the men; that, after their arrest, she released custody to an officer of the Kansas City Police; that she appeared in municipal court against them; that Kearnes pleaded guilty, and that Clinton, the third man, was discharged.

Mr. Boam, a buyer of furniture for the Jones Store at Blue Ridge Mall, stated that he followed Mrs. Bush outside the store; that they were following three men, one of whom was the defendant; that the men were arrested and turned over to the Kansas City Police; that he saw the three men near the flower planter, on the Mall; that he saw Mrs. Bush arrest the men, including defendant; that the Jones Store is in Kansas City, Jackson County, Missouri; that he first saw the clocks in the flower planter when the men and Mrs. Bush were near the planter.

At the conclusion of Boam’s testimony the court, outside the hearing of the jury, asked counsel for plaintiff if there was a witness to testify as to the value of the clocks. Defendant’s counsel then said: “Well, if Your Honor * * * ” and plaintiff’s counsel said there was no such witness present at that time.

Ruth Evans stated that she was a buyer for Jones Store, on the Mall, for gifts, china, silver and clocks. She identified the two clocks, which were in evidence as exhibits, as being the property of Jones Store Company. She valued one at $16.75 and the other at $37.50.

Defendant was his only witness. He was asked one single question: “Did you touch either of these clocks and hand them to another party?” To which he answered: “No, I did not touch the clocks.”

Plaintiff’s counsel then asked: “Have you ever been convicted of a crime?” The court indicated that it would sustain an objection to that question. The following then is shown of record:

“Q (By MR. JACKSON) Mr. Roberts, have you ever been convicted of a crime, a state offense, either within the State of Missouri, or any other state of these United States of America? Not a municipal offense, but a state offense.
“A No.
“Q In Los Angeles * * *
“MR. BROWN: Just a moment please.
(Thereupon the following out of the hearing of the jury)
“MR. BROWN: I am going to further object to the use of a picture where the jury can see it.
“MR. JACKSON: I am not using it.
“MR. BROWN: You have got it right there where they can see it. He is asking questions from that. It is highly prejudicial to the defendant.
“THE COURT: Do you have a sheet of paper * * *
“MR. JACKSON: I have an F. B. I. report and there is a conviction in the state of California.
“THE COURT: Well, I will permit you to ask the question.
“MR. JACKSON: It was petty larceny in the state of California, entered in Los Angeles county.
“MR. BROWN: That is not what it saySi
“THE COURT: He is asking him if he denies that statement.
“MR. JACKSON: That’s right.
“THE COURT: Go ahead. Objection overruled.
(Thereupon the following in the hearing of the jury:)
“Q (By MR. JACKSON) Isn’t it a fact that you were convicted of petty theft May 23rd, 1960, in California?
“A In Glendale. That wasn’t the state. It was a city. It was a can of car wax.
“MR. JACKSON: No further questions.
(Thereupon the following out of hearing of the jury:)
“MR. BROWN: Now, Your Honor, that is the very thing I was objecting to. He has come in through the back door now. My man is under oath and he is willing to tell you the truth, but this testimony before this jury is highly prejudicial and I move that the jury be discharged.
“THE COURT: Motion is overruled. Now if that is the case and it was a municipal offense, it should not have been mentioned, and I can make a record on it.
“MR. JACKSON: Yes sir.
(Thereupon the following in the hearing of the jury:)
“THE COURT: The jury is directed to disregard the answer of the witness just made. You are to disregard his answer as though he hadn’t answered it.
Very well”

Defendant’s main charge of error is based on plaintiff’s examination of defendant as to his having been previously convicted of a crime, in Los Angeles, and of defendant’s answer thereto wherein he stated that it was in municipal court for the theft of a can of wax.

Plaintiff had the right to show, by cross examination, that defendant had been convicted of a crime. Section 491.050 RSMo 1959, V.A.M.S. In State v. Rumfelt (Mo.), 258 S.W.2d 619, the court stated that the above section of the statute must be strictly construed, and that admission of evidence of prior arrests of a defendant, without more, is error. In Meredith v. Whillock, 173 Mo.App. 542, 158 S.W. 1061, 1063, it was held that the violation of a city ordinance is not admissible as proof of the commission of a crime. To the same effect see Clawans v. District of Columbia, 61 App.D.C. 298, 62 F.2d 383, where the court ruled that a conviction for violation of a municipal ordinance was not admissible as affecting the credibility of a witness.

The record clearly establishes that counsel for plaintiff understood that it was improper for him to prove defendant’s prior conviction for the violation of a municipal ordinance. He had asked whether defendant had been convicted of a crime, a state offense, either within the State of Missouri or any other of these United States of America; not a municipal offense, .but a state offense. Defendant had answered, unequivocally, "No.”

Thereafter counsel proceeded to inquire further: “In Los Angeles * * * ” and was interrupted by an objection. In the colloquy that followed it developed that counsel was referring to a paper which he held, and which, he stated, was an F.B.I. report showing a conviction for petty larceny in the state of California. The court was thereby persuaded to overrule defendant’s objection to the question, obviously believing that it was a state crime counsel was asking about. Defendant answered that such conviction was in Glendale municipal court, for stealing a can of car wax.

The question, as asked, was broad enough to include a conviction for violation of a municipal ordinance. It was an improper question. Daggs v. St. Louis-San Francisco Railway Co., (Mo.App.) 51 S.W.2d 164, 167. Defendant was, thereby, led to make the explanatory answer that he gave and plaintiff’s counsel did not offer proof of conviction for a state crime.

The court, recognizing the damaging effect of the testimony, directed the jury to disregard the incident and treat it as though it had never occurred; but there was nothing that the court could do at that point that would remove the poison.

Counsel for plaintiff closed his ears to all objections of defendant and all admonitions ' of the court. He persisted in examining and questioning defendant about commission of a crime within the meaning of the statute, even after defendant had stated that he had not been so convicted. Plaintiff apparently had no record of such conviction but professed to have only an F.B.I. report thereof which, he must have known, was inadmissible as evidence. The court was trapped into permitting the question and defendant felt constrained to answer and explain, in order to justify his previous unequivocal denial of any criminal conviction.

We believe that this incident was prejudicial to the defendant. As some evidence thereof, in municipal court defendant was fined $50.00 but the jury, in circuit court, assessed the penalty at ninety one (91) days confinement. It cannot be condoned. It may become the basis of further infractions of the rule heretofore stated.

We have not discussed defendant’s contention that a case was not made against him. There was ample evidence from which, if the jury believed the witnesses, it could find that defendant himself took the property from the Jones Store and delivered, it into the possession of Kearnesr that defendant, personally stole the clocks.

Because of the above error the judgment is reversed and the cause is remanded for further proceedings.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.


text:
    STATE of Missouri ex rel., COLUMBIA SCHOOL DISTRICT et al., Board Members, Relators-Plaintiffs, Appellants, v. C. D. THORP, County Superintendent of Schools et al., Constituting the Board of Arbitration, Respondents-Defendants, New Haven R II School District et al., Board Members, Intervenors.
    No. 24600.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Spencer & Petri, Columbia, for relators-plaintiffs, appellants.
    Orr, Sapp & Woods, Columbia, for respondents-defendants and intervenors.
   MAUGHMER, Commissioner.

In August, 1964, the City of Columbia, Missouri, extended its city limits so as to include an area which had theretofore been a part of the New Haven R II School District. Section 162.421, V.A.M.S. provides that such an extension shall automatically extend the boundaries of the school district of such city to include the annexed area. Section 165.014, R.S.Mo., 1959 (now Sec. 162.031, V.A.M.S.) provides that: “Whenever * * * (3) the boundary lines of any district are changed by the changing of the boundary lines of any city, incorporated town, or school district * * * the boards of directors or boards of education of the school districts to which land has been annexed or from which land has been taken * * * shall make a just and proper adjustment and apportionment of all school property, real and personal, including funds, as well as indebtedness, if any, to and among such school districts”. This section directs that in making such adjustment and apportionment the amount and assessed value of the land acquired compared with the other land in the districts, as well as the value of the school grounds, together with the buildings thereon, furniture and equipment therein and any other school property shall be taken into consideration in determining the amounts, if any, that shall be assumed and paid off by any of the districts.

When the school boards are unable to agree, then under Section 165.015, R.S.Mo., 1959 (now Sec. 1.62.041, V.A.M.S.) if either board appeals to the county superintendent of schools, that official with four persons named by him shall constitute a board of arbitration and shall proceed to adjust and apportion the property and indebtedness in accordance with Section 165.-014 (now Sec. 162.031) supra. .This statute further makes any sum awarded to a school district “a legal and valid claim against the school district charged therewith”.

The school boards involved in the matter before us were unable to agree. The New Haven Board appealed. Mr. C. D. Thorp, Boone County Superintendent of Schools, appointed a board of arbitration and on June 30, 1965, this board made its award. The notice of the award by letter to plaintiffs is included in the petition. It is a part of the record and recites: (1) request for arbitration by the New Haven R II District; (2) that Robert Ambrose, District #96, T. W. Barner, R I, No. 87, Artie Baugh, R IV, 89, Eugene Ballew, No. 42, and Mr. Thorp, County Superintendent, were members; (3) that all were disinterested taxpayers of Boone County; (4) that “The decision of the board of arbitration was that a school building is part of a complete educational unit that cannot be divided. Therefore, taking the figures given by both parties it is agreed that the Columbia Board of Education #93 is to pay the New Haven District #88 a total of $9122.96 based on the following:

“Bond Indebtedness $5740.50
Interest 1747.21
Taxes (⅝) 1635.25
$9122.96
“Notice of this decision to be given to the clerks of both boards.
Sincerely,
/s/ C. D. Thorp
“/s/ Robert Ambrose
/s/ Eugene Ballew
/s/ T. W. Barner
/s/ Artie S. Baugh.”

On July 13, 1965, the relators-plaintiffs State of Missouri ex rel. Columbia School District and its board of directors, filed in the Circuit Court of Boone County, the instant petition, naming the five members of the board of arbitration as respondents-defendants. On July 15, 1965, pursuant to their motion, the New Haven R II School District and its board of directors were joined as intervenors.

The petition identifies plaintiffs as the Columbia School District and the members of the board thereof, and the defendants as members of the board of arbitration. It asserts that the board (arbitration) “shall hold a hearing and give the affected district reasonable notice of such hearings,” and then states it was notified on June 28, 1965 that a hearing would be held on June 30, 1965. The statute (Sec. 165.015 — now Sec. 162.041, supra) says the “board may hold hearings after giving the affected districts reasonable notice”. The record does not show that appellants objected or sought a delay or contended it had insufficient time in which to prepare for the hearing.

Plaintiffs’ petition then alleged “the value of the school grounds, buildings thereon, furniture and equipment therein or the fund balances were in no matter taken into consideration and given as a credit,”; that “said proceedings are altogether outside any statutory authorization; that it was an unlawful procedure, arbitrary action, abuse of discretion and a decision not based upon all factors set forth in the law and that no appeal therefrom is provided by law * * The prayer asked the court to (1) reverse the order of the board of arbitration; (2) stay the order; (3) adjudicate upon the legality of said proceedings and (4) make such further adjudications and orders therein as right and justice may require. In their brief plaintiffs described their pleading as a “petition in certiorari requesting review” of the award of the arbitration board.

In the transcript and following immediately after the award, plaintiffs attached a document styled “Summary of New Haven R II Columbia School District Settlement”. This document sets out what purports to be the assessed valuation of New Haven R II, amount annexed, total assets, total liabilities, the applicable statutes, insurable value of the buildings and an assertion that only $1,635.25 was due the New Haven R II District. It appears that this document was prepared by plaintiffs. It was not made a part of the record proper by the board. Plaintiffs say that by attaching same to their petition it has become a part of the record proper. We do not agree, although this point is not decisive of the case. The award recites that it took into consideration the figures given by both parties but neither was incorporated into the record. The board is not required to make such records, or any testimony heard, or any documents examined a part of the record proper. Reorganized School District, etc. v. John, Mo.App., 312 S.W.2d 171, 173.

Both parties have cited State ex rel. Reorganized School District, etc. v. Robinson et al., Mo.App., 276 S.W.2d 235. That case concerned review by certiorari of a board of arbitration award fixing the boundary between two school districts. The opinion resolves many points which are inherent in questions presented by the controversy before us and we shall make frequent references and quote liberally from that opinion. First from pages 236 and 237:

“Certiorari presents only questions of law on the record brought up by the return and does not permit consideration of issues of fact [State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68, 73(12)], and evidence and exhibits, even though incorporated in the return, may not be considered unless they are properly a part of the record [State ex rel. St. Louis Union Trust Co. v. Neaf, 346 Mo. 86, 139 S.W.2d 958, 962-963(8, 9)]. The chief purpose of certiorari being to confine an inferior tribunal within its jurisdictional limits [State ex rel. Police Retirement System of City of St. Louis v. Murphy, supra, 224 S.W.2d loc. cit. 73(11); State ex rel. St. Louis Union Trust Co. v. Neaf, supra, 139 S.W.2d loc. cit. 961(2)], the writ affords relief not only where the inferior tribunal is without jurisdiction but also where such tribunal abuses or acts in excess of its rightful jurisdiction. [State ex rel. Woodmansee v. Ridge, 343 Mo. 702, 123 S.W.2d 20, 23(3)].”

Second. In Robinson the board’s written award declared that it had acted “after careful consideration of the question of the matter of changing the boundary” but contained no specific affirmative finding as to “the necessity for such proposed change”, a commandment of the statute. The court ruled this order did not “show[s] upon its face that the board acted without and in excess of its authority granted under the statute”.

Third. In the case before us it is tacitly conceded — certainly not disputed — that the board of arbitration had jurisdiction and this appears from the record. The question is not one of jurisdiction but rather as to the exercise of that jurisdiction. On this point the court in Robinson (p. 239) quoted with approval from School Districts Nos. 18, 19, 29, 30, Webster County v. Yates, 161 Mo.App. 107,142 S.W. 791, 793, as follows:

“After a tribunal or officer has been shown to have once acquired jurisdiction, his official acts under such jurisdiction will be presumed to be regular and in the due discharge of his duty. It will not be presumed that he had jurisdiction in the first instance, but after jurisdiction is shown, then the presumption follows in favor of the regularity of his proceedings”.

In Ward et al. v. Consolidated School Dist. No. 136 of Nodaway County et al., 225 Mo.App. 1139, 16 S.W.2d 598, 600, it was held that “ * * * in the absence of any record purporting to be a complete transcript of the proceedings before the board of arbitrators, their findings must be presumed to have been based upon proper grounds and honestly arrived- at”.

Fourth, Robinson, page 240:

“Our courts have frequently announced and heartily approved the salutary and time-honored principle that school laws will be construed liberally to aid in effectuating their beneficent purpose, and that, since the administration of school matters usually rests in the hands of plain, honest and well-meaning citizens, not learned in the law, substantial rather than technical compliance with statutory provisions and requirements will suffice”.

Fifth. And at page 241:

“As was said fifty years ago in School District No. 2, etc. v. Pace, supra, 113 Mo.App. 134, 87 S.W. 580, loc. cit. 582, ‘if the certificate (judgment) of the arbitrators is not absolutely void on its face, or so indefinite and uncertain as not to show jurisdiction of the board, it will stand the test of a review on writ of cer-tiorari.’ Believing that, with the jurisdiction of the board here conceded, the presumption of regularity and right acting should be indulged in the absence of any indication to the contrary, and being unable to say, from the face of the record before us, that the board acted without and in excess of its jurisdiction [State ex rel. St. Louis Union Trust Co. v. Neaf, supra, 139 S.W.2d loc. cit. 965(15)], we are of the opinion that the judgment of the circuit court should be reversed and the cause remanded with directions to enter judgment quashing the writ of certio-rari”.

In 78 C.J.S. Schools and School Districts § 79, p. 809, we are told:

“In the absence of statute providing therefor, no appeal lies from a determination made in proceedings for the apportionment of assets or liabilities of a school district on its alteration or dissolution. A writ of certiorari to the board or tribunal which has made such an apportionment brings up for review only the question of the jurisdiction of such tribunal and the regularity of its proceedings”.

Appellants say that this court has wide authority to review under Rule 100.08, V.A. M.R. We are not told just what this “wide authority” encompasses but the Supreme Court spoke on the subject in State ex inf. Dalton ex rel. Hough v. Eckley, 347 S.W.2d 704, 707. We quote:

“In Point II of respondents’ brief, they state that ‘Notwithstanding the statement in Section 165.294 R.S.Mo. [V.A.M.S.] that the “decision of the Board of Arbitration shall be final” the Supreme Court by its Rule 100.08 [V.A.M.R.] has provided that this harsh and patent finality is nevertheless subject to judicial inquiry and review.’ If respondents mean that courts may review the merits of changes in boundaries or the merits of a reorganization, they are mistaken. Consolidation and reorganization of existing school districts and the extent thereof as well, as the proceedings to effect such changes are legislative matters and as a rule are not subject to review by the courts”.

Continuing at page 710 in Eckley, the court said:

“We have examined the record and have found that the procedure and the action taken by the board of arbitrators were in substantial compliance with the provisions of the statute and sufficient in all respects”.

In State ex rel. St. Louis Union Trust Co. v. Neaf, supra, 139 S.W.2d 958, the Supreme Court stated:

“The chief purpose of a writ of ‘certio-rari’ is to give relief to injured party where an inferior tribunal had no jurisdiction, or, having jurisdiction, abused it or acted in excess thereof and the writ cannot be made to serve purpose of an appeal or writ of error”. Syl. 2.
“A writ of certiorari is a discretionary writ and may be used to reach errors appearing on face of record which cannot be reached by appeal or writ of error”. Syl. 3.

In the case before us it stands conceded that (1) an election was held extending the corporate limits of Columbia, Missouri; (2) a part of the area of New Haven R II School District thereby automatically became a part of the Columbia School District; (3) in such circumstances our statutory law requires an “adjustment and apportionment” of all school property, by the school boards if they can agree and if they cannot agree, then by a board of arbitration if either district appeals; (4) the boards failed to agree and New Haven appealed to the Boone County school superintendent; (5) a qualified board of arbitration was duly appointed, met and after hearing suggestions from both sides, made an award apportioning the property and directing Columbia to pay to New Haven the sum of $9,122.96.

It is apparent that this board of arbitration was clothed with full and complete jurisdiction in the premises. Insofar as the elements of its findings and judgment are concerned it did not exceed its jurisdiction. It decided and determined no more and no less than was required in the exercise of its statutory function. The right of appeal exists only where and when conferred by statute. No appeal is provided for contests of this type. Certiorari presents only questions of law for review. It does not permit consideration and redeter-mination of issues of fact.

Does the record here on its face show any departure from the applicable law? We think not. In fact jurisdiction and its exercise within prescribed limits appear. The record shows or at least recites compliance with the statutory' direction as to consideration of the prescribed elements to be considered in making the apportionment. It shows that the suggestions of both Columbia and New Haven were weighed and considered in arriving at the final determination. Relators say first the proceedings were “outside any statutory authorization”. We hold this is not so. Then rela-tors assert the action was “arbitrary, abuse of discretion and a decision not based upon all factors set forth in the law”. The record neither supports nor substantiates any of those allegations. We believe relators are in effect, trying to appeal the decision, seeking a review and redetermination by this court of the facts. We are not authorized to do this in these school cases. It is our opinion that the circuit court was right when it denied the request for writ of cer-tiorari.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion by MAUGHMER, C., is adopted as the opinion of the Court.

All concur.