author: WALTER, Justice.

text:
    Buel Gene SIMPSON et al., Appellants, v. CITY OF ABILENE et al., Appellees.
    No. 3947.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 9, 1965.

      Warren Burnett, Robert E. Hoblit, Odessa, for appellants.
    Les Cochran, Abilene, for appellees.
   WALTER, Justice.

Buel Gene Simpson, individually and as next friend for his seven year old son Michael, filed suit against the City of Abilene and Herman Benjamin Smith to recover damages for personal injuries sustained by the minor on or about October 31, 1958, as a result of being run over by a pickup truck owned by the city while being driven by Smith.

The city answered that the plaintiffs’ claims were barred by the two year statute of limitation. It also answered that plaintiffs had failed to comply with the city’s ordinances requiring the injured person or someone in his behalf to give the Mayor or Board of Commissioners notice in writing of such injury within thirty days after the injury. It pleaded that the ordinance provided that said notice should be a condition precedent to the right to sue the city and required plaintiffs to affirmatively allege and prove a compliance with the ordinance before suit could be maintained. The city’s answer was verified.

Smith answered that plaintiffs’ claims were barred by the two year statute of limitation.

The City of Abilene and Smith filed a joint motion for a summary judgment and asserted that as a matter of law they were entitled to a judgment because plaintiffs’ claims were barred by the two year statute of limitations and because plaintiffs had failed to comply with the city ordinance requiring thirty days notice. The court granted defendants’ motion for summary judgment. The plaintiffs have appealed.

Appellants contend the court, erred in holding that their cause of action was barred by the.two year statute of limitation; in holding that they were required to comply with the city’s ordinance requiring thirty days notice of their claim; in holding that they were barred from suing Smith in his individual capacity because of failure to comply with the city’s ordinance on notice and in holding that they were required to oppose the motion for summary judgment with controverting affidavits.

Appellants were not required to file counter affidavits. In Freeberg v. Securities Investment Company of St. Louis, Tex.Civ.App., 331 S.W.2d 825, (Writ Ref.), the court said:

“Summary judgments are not granted by default, but upon the movant’s discharge of his burden to show the absence of fact issues. If movant’s showing poses only a question of law, there is no need to file counter-affidavits. Couey v. Arrow Coach Lines, Tex.Civ.App., 288 S.W.2d 192. When movant’s own showing develops a fact dispute, he defeats his own summary judgment, though there are no counter-affidavits. Jindra v. Jindra, Tex.Civ.App., 267 S.W.2d 287; Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236; 4 McDonald Texas Civil Practice, § 17.26.3. A respondent is entitled to rely upon admissions, depositions and exhibits in the record, though he has not filed counter-affidavits. Ragsdale v. McLaughlin, Tex.Civ.App., 285 S.W.2d 467. On the basis of either of these rules, Freeberg had standing before the court at the summary judgment hearing, and the inference that he lost because he did not have a sworn answer or opposing affidavits is not correct.”

The appellees alleged that their grounds for a summary judgment were supported by the pleadings of the parties- and hy a certified copy of the ordinance requiring thirty days notice, which was attached as an exhibit. “It is obvious that a motion for summary judgment on the pleadings, by the defendant, is equivalent in effect to our old general demurrer.” Summary Judgment Procedure, by Suggs and Stumberg, Vol. XXII, No. 4 Texas Law Review, pages 433, 438. Their motion was not supported by affidavits, depositions or other proof permitted in a summary judgment proceeding on the issues made by the pleadings. The appellees’ motion for summary judgment therefore challenged the sufficiency of the appellants’ pleadings to raise issues of fact. Appellees were asking for a summary judgment on the pleadings. They were, in effect, saying to the court, we admit that all the facts set forth in the petition are true, but the petition is fatally deficient in substance. The operation of a motion for summary judgment on the pleadings “is closely analogous to a special exception challenging the sufficiency of the opponent’s pleadings as a matter of law. Summary Judgments by Ray W. McDonald, 30 Texas Law Review 285, at page 297.

Appellants pleaded that the accident occurred on or about October 31, 1958, at which time Michael was seven years of age. Their petition was filed on March 7, 1961. Appellees’ contention that the two year statute of limitation is applicable against the minor cannot be sustained. We hold that the minor’s cause of action against the City and Smith was not barred by the two year statute of limitation. Article 5535, Vernon’s Ann.Civ.Tex.St., provides that if a person is a minor at the time his cause of action accrues, “the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.” See also Texas Utilities Company v. West, (Writ Ref.), Tex.Civ.App., 59 S.W.2d 459. We are of the opinion that Mr. Simpson’s claim is barred by the two year statute of limitation.

Was seven year old-Michael required to comply with the city’s ordinance requiring thirty days notice before filing suit? In Wones v. City of Houston, (No writ history), Tex.Civ.App., 281 S.W.2d 133, the court held that a minor plaintiff over twenty years of age at the time of- his injuries was required to comply with the city's ordinance requiring that notice be given to it before suit was filed. The court pointed out that it was the established law in this state that allegation and proof that said notice was given are conditions precedent and that failure to so allege and prove is fatal. The court said:

“Only three exceptions to such established rule appear to be recognized. They are: (1) where the claimant is incapacitated during the prescribed time from giving the notice, City of Tyler v. Ingram, Tex.Civ.App., 157 S.W.2d 184, reversed 139 Tex. 600, 164 S.W.2d 516; (2) where the city is estopped from requiring compliance, Cawthorn v. City of Houston, supra [Tex.Com.App., 231 S.W. 701]; and (3) where a taking or damaging of property is involved, City of Waco v. Roberts, 121 Tex. 217, 48 S.W.2d 577.”

The court further said:

“However, it is our view that minority, in order that it be relied upon as an excuse for non-compliance, must be such as to produce, in fact, an actual physical or mental incapacity to comply.”

The controlling question is whether or not a child seven years of age is physically or mentally incapable of complying with the City's ordinance. Children who are under nine years of age are not amenable to the criminal laws of this State except for perjury under certain conditions. Article 30 Penal Code. Rule 44, T.R.G.P., places minors in the same category with lunatics, idiots and persons non compos mentis and permits them to sue and be represented by “next friend” under certain conditions. In Gottschalk v. Rudes, 159 Tex. 552, 324 S.W.2d 201, our Supreme Court on the subject of common law negligence, at page 204, said:

“it is well settled that where common-law negligence as distinguished from negligence per se is involved, the minor is judged by the standard of a child and not that of an adult.”

Our law does not permit a minor to have his disabilities of minority removed until he has become nineteen years of age. Article 5921, V.A.C.S. In Wones v. City of Houston, supra, the court referred to cases from other jurisdictions holding that

“compliance with such ordinance requirements is an indispensable prerequisite to the bringing of an action by any person regardless of his age or his physical or mental condition.”

The court also cited cases from other jurisdictions which held that notice under said ordinances was not applicable to minors. The court said:

“Our examination of the last cited authorities indicates, however, that in each instance the court held the ordinance there in question to be inapplicable, not because of the legal disability of minority, but because of the actual physical and mental incapacity which the youthfulness of the claimant produced.”

We are of the opinion that a child seven years of age is excused, as a matter of law, from complying with the City’s ordinance requiring the injured party to give the City written notice of his claim within thirty days after his injury. In any event, it would be, at- least, a question of fact whether a child seven years of age had the physical or mental capacity to comply with said ordinance.

Buel Gene Simpson's cause of action, Individually,. against the appellees is barred by the two year statute of limitation. The judgment of the trial court so holding is, therefore, affirmed;

The judgment sustaining the appellees' motion for a summary judgment- against the minor Michael Simpson is reversed and the case is remanded for a flew trial.

Affirmed Im part and' reversed and remanded in part.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Cora H. ROBERTS, Appellant, v. Baker LUCAS, Appellee.
    No. 121.
    Court of Civil Appeals of Texas. Tyler.
    March 25, 1965.
    J. Byron Saunders, Saunders & Tunnell, Tyler, for appellant.
    Wilbert Lasater, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee.
   SELLERS, Justice.

Appellant brought this suit against the appellee to recover damages for a breach of a written contract which is referred to in the pleadings and made a part thereof just the same as if it were copied in the petition. This contract does not accompany the record on appeal. The appellee answered the appellant’s petition with certain special exceptions and other allegations not necessary to mention. The appellant filed a First Amended Original Petition to which the trial court sustained appellee’s exceptions and dismissed the case. From this judgment the appellant has duly prosecuted this appeal.

From appellant’s brief we take the following :

“The sole and only question in this case is whether or not Appellant’s Amended Original Petition properly alleged fraud in inducement of a contract sufficiently to entitle the Appellant to be heard on such Amended Original Petition and relief granted as prayed for therein.
“The trial court, apparently based his ruling upon the recent Supreme Court case of Texas in a certain suit styled Climatic Air Distributor of South Texas vs. Climatic Air Sales [162 Tex. 237], 345 SW2d, 702. This case held that a contract providing for an exclusive distributorship was and would be void. Appellant does not and cannot have any argument with reference to the holding in that case. It is true that in the instant case, the contract as prepared between the parties did provide for an exclusive distributorship in an exclusive area. We feel that the case at bar and the Supreme Court case cited above may be distinguished in that Appellant has attempted to allege fraudulent acts including the contract to be executed which fraudulent acts, allegations and misrepresentations were made on material matters, were untrue at the time of their making, that Plaintiff was ignorant of the falsity of the representations, was deceived thereby, relied upon the representations, and was thereby damaged. * * *”

It will require no citation of authority for the well established rule of law that the courts will not grant relief to either party when an illegal contract is sought to be -enforced.

The appellant undertakes to escape the above holdings by allegations, undertaking to establish fraud in the execution of the contract. The allegations in this connection are found in paragraphs 1, 2 and 3 of appellant’s Amended Original Petition, as follows.:

“That Plaintiff as owner of Roberts Chemical Company had for many years prior to October 24, 1961, been engaged in the manufacture of chemical compounds in Tyler, Smith County, Texas and particularly a compound called ‘SaveoyP which Chemicals were and are used -for the treatment of oil and gas wells where paraffin forms in the tubing to aid, assist and enlarge production therefrom.
“That Defendant on or about said date of October 24, 1961, and prior thereto had been a licensed Real Estate Dealer and was anxious to expand his business and engage in the sale and distribution of chemicals in addition to his real estate business. That as a result, Defendant approached Plaintiff and entered into negotiations with her with the view of obtaining an exclusive distributorship thereof in certain territories in Texas. That said negotiations resulted in a written agreement and contract of date of October 24, 1961, which provided for an exclusive distributorship in an exclusive territory. That in the preparation of said agreement, Defendant was represented by counsel who prepared rough drafts of same and presented them to Plaintiff for her approval and correction. That Plaintiff was not advised by counsel of the invalidity of said contract. As a matter of fact, said attorney secured by her advised Plaintiff the contract was legal. The final contract was prepared by Defendant’s counsel, executed by them and the parties began operations thereunder whereby Plaintiff was to manufacture said product and Defendant was to distribute the same. That a confidential relationship was thus established between the parties which was unconscionable in that Defendant took an unfair advantage of Plaintiff to her detriment and damage as hereinafter shown, knowing from the beginning the contract could not be enforced.
“Plaintiff alleges that Defendant thus perpetrated a fraud on Plaintiff when he induced her to enter into the written contract and agreement as finally consummated in this: that Defendant’s attorney knew and advised Defendant when he entered into said contract that same was void and unenforceable as being in violation of the Anti-Trust Statutes of Texas for the reason that said attorney had defended a similar contract for a client through the Supreme Court of Texas and on April 19, 1961, Justice Green-hill of said court had rendered an opinion in said suit holding an exclusive contract of distribution to be void. Since this contract was not entered into until October of said year Defendant’s attorney knew this fact when the Defendant induced Plaintiff to enter into the contract as written and prepared by him and under his supervision. That Plaintiff alleges Defendant’s counsel so advised Defendant of its illegality prior to the execution of the instant contract. That to induce Plaintiff to enter into the contract as aforesaid, Defendant represented that he would buy as a minimum 11,550 gallons of such chemical for a total sum of $17,325.00. In fact, he did buy 2,200 gallons subsequent to the original negotiations; that he further represented he had a sales organization in existence which could and would increase her sales; that he would do an interstate business in such chemicals in that he had a representative in Mansfield, Louisiana, Mr. Harvey Sexton who would represent him in that area; that he had begun advertising the product on the strength of securing the distributorship of said chemical and that he was financially able to buy the 11,550 gallons as a minimum for his needs.”

The foregoing pleadings disclose that the appellee is not charged with advising the appellant prior to execution of the contract that it was legal, but that he knew it to be illegal and did not so advise the appellant.

Both parties are presumed to know the law of Texas and even a misrepresentation as to Texas law "by an appellee would not be fraudulent but is treated as mere representations of opinion, Askew v. Smith, Tex.Civ.App., 246 S.W.2d 920. This result would not be true if the appellee at the time used his superior knowledge of the law to obtain advantage over one who is confessedly ignorant of such laws. Askew v. Smith, supra.

From the allegations in this petition, the appellant is far from ignorant but js a business executive and was represented by her own lawyer who advised her that the contract was legal.

As we interpret the appellant’s pleadings, the allegations are to the effect that the appellee withheld his knowledge of the illegality of the contract when he should have divulged the same to the appellant. There are no allegations of a confidential relationship between the parties prior to the time the contract was executed. The courts hold that mere silence of a material fact does not of itself amount to fraud. Howard v. County of Nolan, Tex.Civ.App., 319 S.W.2d 947.

In our opinion the court properly dismissed the appellant’s cause of action, and the judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    Refugio FERNANDEZ by Feliz Garza Fernandez, Agent and Attorney In Fact, Appellant, v. Roberto Oscar VILLARREAL et al., Appellees.
    No. 14362.
    Court of Civil Appeals of Texas. San Antonio.
    March 17, 1965.

      J. G. Hornberger, Laredo, for appellant.
    P. A. Kazen, Hall, Hall & Juarez, Laredo, for appellees.
   BARROW, Justice.

Appellant, Refugio Fernandez, acting by and through his wife, Feliz Garza Fernandez, as his agent and attorney, brought this trespass to try title suit against appellees, Roberto Oscar Villarreal and others. The trial court entered a judgment on July 29, 1964, in accordance with an asserted agreement of the parties, acting by and through their attorneys, made in open court on November 12, 1963. The question on this appeal is whether this judgment is valid as a consent judgment.

On November 12, 1963, the attorneys for both parties appeared in. open court and announced that a settlement had been made between the parties, none of whom were personally present at the time. The attorney then representing appellant dictated the settlement agreement to the court reporter in open court. The court then said: “The case is now out of the docket.” Shortly thereafter, appellant refused to go along with the purported agreement, and his attorney who had made the settlement withdrew from the case. Appellees filed their motion for judgment in accordance with the agreement, which motion was heard on June 14, 1964, and at that time the court, without hearing any evidence, announced that it was going to enter judgment on the agreement.

In Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, the Supreme Court, in determining a case with a very analagous factual situation, stated the applicable rule as follows: “A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.” In that case the Court held invalid a purported consent judgment based upon the agreement of both attorneys in open court on March 23, 1949, that plaintiff have judgment for ten thousand dollars and court costs, which agreement was noted on the docket. On March 21, 1949, the attorneys stated in open court that the case, was settled for this amount, and the court discharged the jury. Before judgment was rendered on March 23, facts came to the attention of the trial court, which the Supreme Court held should have put the judge on inquiry that the plaintiff did not agree with this settlement.

Appellees recognize the similarity of the facts in Burnaman v. Heaton, supra, with those in this case, but urge that the trial court rendered judgment on this settlement on November 12, 1963, and at that time all parties, through their attorneys, consented to the agreement.

It is our opinion that the act of the trial court in ordering this case removed from the docket was not a rendition of the judgment. In Kittrell v. Fuller, Tex.Civ.App., 281 S.W. 575, writ refused, it was said that the rendition of the judgment is the judicial act by which the court settles and declares the decision of the law upon the matter at issue. In Corder v. Corder, Tex.Civ.App., 189 S.W.2d 100, writ refused, it was said that rendition of a judgment is its announcement in open court, and that judgment is not rendered until it has been completely announced. All the trial court did in this case was to recognize that a settlement had been made and to remove the case from the trial docket. This was similar to the trial court’s discharging the jury on March 21, in Burnaman v. Heaton, supra.

The record reflects that this judgment was not rendered by the court until June 14, 1964, pursuant to appellees’ motion for judgment. Under the undisputed record, appellant did not consent at that time to the terms of the purported settlement, and therefore it follows that this judgment cannot stand as a consent judgment. Burnaman v. Heaton, supra; Owen v. Finigan, Tex.Civ.App., 381 S.W.2d 578, writ ref., n. r. e.

The judgment is reversed and the cause remanded.


author: BARRETT, Commissioner.

text:
    Charles N. TERRY and Clara L. Terry, Plaintiffs-Appellants, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation, Defendant-Respondent.
    No. 51038.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Wm. Fred Burns, Independence, for plaintiff-appellants.
    S. Ralph Stone, City Counselor, Thomas D. Cochran, Asst. City Counselor, Independence, for defendant-respondent.
   BARRETT, Commissioner.

This is an action in two counts, one for a permanent injunction, and two to quiet the title to a strip of ground, 60 feet by 50 feet, which the plaintiffs-appellants allege the city has appropriated as a public street across the corner of a lot, 105 feet by 165.4 feet, now owned by them. Upon oral motion at the close of the plaintiffs’ case the court, being of the opinion that there was not “any case here for these plaintiffs,” dismissed the action and the plaintiffs appealed. The Kansas City Court of Appeals was of the opinion that the case involved the title to real estate within the meaning of the constitution (Art. 5, Sec. 3, V.A.M.S.) and accordingly transferred the cause to this court.

The respondent city has moved to dismiss the appeal for the stated reason that the appellants’ brief does not contain “a fair and concise statement of the facts.” Sup.Ct. Rules 83.05.; 83.09, V.A.M.R. This motion is without substantial merit and is therefore overruled. This was a court-tried case and as of course is reviewable “upon both the law and the evidence as in suits of an equitable nature” and the judgment is not to be “set aside unless clearly erroneous.” Sup.Ct. Rule 73.01 (d); Curd v. Reaban, Mo., 232 S.W.2d 389 (an adverse possession case). More particularly, since the court in effect decided the cause at the close of the plaintiffs’ evidence the problem is whether upon -the record before the court “the strip of land in controversy is part of an established road (by prescription) for the use of the public and is now being so used by the public.” Gilleland v. Rutt, Mo.App., 63 S.W.2d 199, 201; Eatherton v. Henderson, Mo., 59 S.W.2d 623. While these latter cases were decided prior to the enactment of the noted rules and prior to the adoption of the Civil Code of Missouri, in 1943, they were adverse possession cases and in the Gilleland case the trial court sustained a demurrer at the close of all the evidence and entered judgment for the defendant.

It should be noted in passing that this case is not concerned with dedication although the terms dedication, prescription and adverse possession are often used interchangeably. State v. Thompson, 91 Mo.App. 329, Annotation 76 A.L.R.2d 535, 536. And McGrath v. City of Nevada, 188 Mo. 102, 86 S.W. 236, City of Hardin v. Ferguson, 271 Mo. 410, 196 S.W. 746, Heitz v. City of St. Louis, 110 Mo. 618, 19 S.W. 735, are all strictly speaking dedication cases. As stated, the sole question for determination is whether the City of Independence acquired an easement to this particular strip of ground by adverse possession. And while the general rules as set forth in what has come to be one of the leading cases (State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174) are applicable it is not necessary by reason of their sheer number to cite cases other than those involving cities and other public bodies. As a matter of fact there -is no difference of opinion between the appellants and the respondent on this subject, as a part of the general rules it has become a principle that a municipality or other public body may acquire a street or road over the land of another by adverse possession after the statutory period of limitation, here ten years, RSMo 1959, § 516.010. Gilleland v. Rutt, supra. In addition to the cases cited in the course of this opinion, the rules relating to municipalities and adverse possession are set forth in one form or another in these texts,—39 C.J.S. Highways §§ 3-24, pp. 921-945 ; 25 Am.Jur. (Highways), Secs. 11-16, pp. 346-349 ; 3 Amjur.2d (Adverse Possession), Sec. 139, p. 225.

As with the applicable rules of law there is also no dispute as to the facts. In June 1947 a tract of forty acres was platted as Hocker Homestead consisting of 45 lots. On the south the subdivision is bound by Pacific Avenue and on the west by Hocker Street. Pacific Avenue dead-ends at Hock-er Street and thus at the juncture of these two platted streets the corner is a right angle. Both streets are platted as 50 feet wide. Lot 11 is the southwest corner lot, fronting 105 feet on Pacific and 270.4 on Hocker and the strip of ground now in dispute and claimed as a street by the city is across the south end of this lot. Lot 12 to the east adjoins Lot 11 and the plaintiffs, Mr. and Mrs. Terry, “moved into” and it is assumed have owned Lot 12 since the platting of the addition. Furthermore, across and on the south side of Pacific Avenue the Terrys owned a larger lot, 297 by 146.66 feet, and Hocker Street dead-ends at this lot and there joins Pacific Avenue. It does not appear who after the platting of the addition owned corner Lot 11. And it does not appear whether there are any improvements on the south 165 feet of the lot, the rather plain inference from the record is that there are none. Furthermore, while Lot 11 was platted as 270.4 feet in length, in some manner not revealed the north 105 feet have become detached and the lot is now 165.4 feet long and 105 feet wide. In the trustee’s deed and the quitclaim deed to the Terrys the descriptions are “All of Lot Eleven (11) (except the North 105 feet) HOCKER HOMESTEAD, an Addition in and to the City of Independence.” On August 1,1958, by virtue of a “Trustee’s Deed Under Sale” (probably from the land trust for taxes) and for a recited consideration of $100 the Terrys became the purchasers of Lot 11, except the north 105 feet. And recorded on November 15, 1958, was a quitclaim deed from Charles and Edna Hubbard to the Terrys for “One Dollar and Other Valuable Considerations.” After thus acquiring title to the south 165.4 feet of Lot 11 in 1958 the Terrys instituted this suit against the city in 1961.

The Terrys have lived at 508 Pacific Avenue next door to Lot 11 since 1947, they had lived there eleven years when they purchased the lot in 1958. They have paid special assessments and back taxes on the lot up to and including 1961 (they had statements for the 1962 and 1963 taxes but had not paid them when the case was tried in November 1963.) Mr. Terry said that when he purchased the property in 1958 he did not know where the corner “peg” was until he had it surveyed in 1959. And the surveyor, incidentally, was the engineer who had platted the subdivision in 1947. As to the city’s possession and use of the strip of ground involved here Mr. Terry said that the city and the traveling public had used the south part of the lot as a city street continuously since 1947, “That street was a curve. The first time I ever saw it it went across the corner of that lot, so I was told.”' He only claimed that the area of use changed over the years, “It edged over a few inches every year, because the cars got on there all the time, and when they graded they graded to where the traffic had went to.” He said that at one time the street even took 25 feet off of Lot 12 and encroached further on Lot 11 than it does now but after the survey he piled dirt up “regaining some more property,” possibly 15 to 18 feet. Incidentally, no part of Lot 12 is, involved in this action. Then in 1961 Mr. Terry and various city officials were engaged in a controversy, he built a fence along what he said was “my property line,” the officials threatened to have him arrested if he didn’t take the fence down and “(t)he city had it blocked for about ten days during the oiling period when we were more or less arguing back and forth.” Mr. Terry is in the construction business and he uses his lot on the south side of Pacific Avenue as a storage place for his equipment and in addition he stores his heavy machinery on that part of the platted area designated as the fifty foot strip for Pacific Avenue: “Q. You use this portion which is marked on the plat as Pacific Avenue — do you use that area to store your goods in? A. Yes, sir; I use that to keep the cars from hanging around there. The City didn’t claim it and I wanted to keep down the traffic so they couldn’t have a race track all the time. Q. That portion that is designated as Pacific Street, you use that portion all the time? A. Yes, sir, I do. Q. And you have been using it for how long? A. I believe 1954, when I bought the lot on the south side.”

Specifically on cross-examination Mr. Terry gave this evidence as to the city’s use and occupancy of the strip of ground involved here:

“Q. Mr. Terry, you have lived next door to Lot 11 or owned the property just to the east, which is Lot 12, since 1947?
"A. Yes, sir; that’s right.
“Q. You purchased this Lot 11, the subject of this particular lawsuit, in 1958?
“A. Yes, sir.
“Q. So you lived there a period of some eleven years before you purchased Lot 11?
“A. Yes, sir; that is correct.
“Q. At the time you lived on Lot 12 next door to this lot you were aware, were you not, that a portion of Lot 11 was being used for this street ?
“A. Yes, sir.
“Q. You had known this all the time you had been living there from 1947 to 1958?
“A. I can’t say I knowed for sure because I didn’t know where the peg was. I had been told it went across Lot 11; I hadn’t had it surveyed.
“Q. It was your judgment that was the case ?
“A. Yes, sir; I thought it was and I had been told that.
“Q. That was true all of these eleven years before you purchased this property ?
“A. Yes, sir; as far as I know.
“Q. Never to your knowledge from 1947 up to the present time has the road ever come down there and made what we would call a square right turn?
“A. No, it never has.
“THE COURT: It has always been on a curve ?
“THEWITNESS: Yes.
“Q. And the curve took in a portion of Lot 11?
“A. As far as I know it always has.
“Q. Your testimony is that as long as you have been in that area a portion of Lot 11 has been used as the street?
“A. A portion of it has, yes.
“Q. You had this knowledge in 1958 when you purchased this property?
“A. Yes., sir; I was told it went across the corner of it.”
* * * * * *
“Q. Since yon have been out there, since 1947, the City of Independence has been oiling this particular road?
“A. Yes, sir.
“Q. They haven’t missed a year since then to your knowledge?
“A. Yes, sir; they missed this year, the first one.
“Q. At the time you were living next door, from ’47 to *58, did they oil that road as a curved or square corner?
“A. As far as I know it has always been used and oiled as a curve.”

On cross-examination Mrs. Terry said:

“Q. There has always been a curve there at that corner, hasn’t there ?
“A. Yes.
“Q. It was that way when you lived next door in 1947?
"A. Correct.
“Q. And it has a curve now?
“A. Yes.
“Q. And it has always curved?
“A. That’s right.
“Q. This road has always been oiled and maintained since you have been out there, since 1947, by the City of Independence?
S‘A. As far as I can remember.
“Q. And they have maintained it on a curve all this time ?
“A. Yes.”

This testimony by Mr. and Mrs. Terry shows an occupancy and user of the described strip of ground across Lot 11 by the traveling public and the city for more than the statutory period of ten years (RSMo 1959, § 516.010) and by reason thereof an easement or a city street by adverse possession. City of Kirksville v. Young, Mo., 252 S.W.2d 286; California Special Road Dist. v. Bueker, Mo.App., 256 S.W. 98. There is no evidence that the initial use and occupancy by the traveling public and the city was permissive and whether the use and occupancy was prescriptive in character only or permissive only is a fact to be inferred from the circumstances. The quality and character of the use were not of the same type and character that individuals might normally make of land, as for a garden plot or a part of a yard, but it was the character of dominion and use normally exercised and made of property for a street. La Grange Reorganized School Dist. No. R-VI v. Smith, Mo., 312 S.W.2d 135. “The evidence disclosed that the whole passageway had been consistently used by the public for alley purposes for as much as fifty years after the erection of buildings along either side of it, and that the character of the use which had been made of it was in all substantial respects the same as that made of all other alleys in the city.” City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160, 165. The mere taking possession of the land of another or its mere occupancy for a period of years are not alone adverse necessarily in the sense required to create a prescriptive right. La Grange Reorganized School Dist. No. R-VI v. Smith, Mo., 312 S.W.2d 1 c. 138. But not only was the strip of land involved here used by the traveling public as a street for more than ten years, the city took possession of the traveled area, expended public funds in its upkeep, graded it, oiled it and exercised dominion over it. “These facts are sufficient to show that the roadway in question is one for public use by dedication and by the acceptance and use of the public, or one by prescription from use for a long period of time by the public acquiesced in by the owners, or one by limitation from adverse user on the part of the public; in either event for such period of time that plaintiff and his grantors are now estopped to deny its character as a public road.” Gilleland v. Rutt, 63 S.W.2d 1. c. 201; Anson v. Tietze, 354 Mo. 552, 557, 190 S.W.2d 193, 195.

The assessment by the city of taxes on the entire lot and their payment by the appellants is a circumstance to be considered but the fact atone is not sufficient to overcome other indisputable- circumstances establishing adverse possession in the city. City of Caruthersville v. Cantrell, 230 S.W.2d 1. c. 166; Conran v. Girvin, Mo., 341 S.W.2d 75, 91. This case and its circumstances are governed by the cited cases and are to be distinguished from the cases in which there was no evidence of public use for the prescriptive period or no proof of public improvements by the public body or no proof of the expenditure of public funds as was the fact in Sellers v. Swehla, 364 Mo. 285, 261 S.W.2d 26. Also the circumstances are to be distinguished from those in which “(n)o overt act was ever committed by any individual, the public generally, or the city, which could be construed as a claim of any right adverse to the owner.” Kelsey v. City of Shrewsbury, 335 Mo. 78, 81, 71 S.W.2d 730, 731; Brinck v. Collier, 56 Mo. 160. In short this case and its circumstances are to be contrasted with those instances in which the city’s use and possession “was illusive, it was not of right and it was not of such character and quality or in such force of circumstances as to compel the inference that it was not in subordination to the rights of the record owners.” Szombathy v. City of Berkeley, Mo., 280 S.W.2d 834, 837.

As a matter of fact the sufficiency of the evidence to support the city’s claim of a street by adverse possession, in its conventional sense, is not the appellants’ principal contention. Their claim is based almost entirely on the statutes relating to plats, principally Sec. 445.030 which insoj far as material here provides that a plat “shall not be placed of record until it shall have been submitted to and approved by the common council of such city * * * by ordinance, duly passed and approved by the mayor * * * and before approving such plat, the common council may, in its discretion, require such changes or alterations thereon as may be found necessary to make such map or plat conform to any zoning or street development plan which may have been adopted or appear desirable * * The appellants’ pleading and proof in the trial court and their brief and argument in this court are all directed to the proposition that the city, as provided by the quoted statute, approved the plat of the addition in 1947 and, therefore, it is argued that its use of the area in question was “permissive in character.” It is said that “(t)he character of the use of the curve was then fixed by approving the plat” and was not changed until 1959 after the appellants had the lot surveyed and first challenged the city’s exercise of dominion over the disputed area.

But statutory dedication is not the only method by which a city may acquire an easement for a street, as stated in Gilleland v. Rutt, 63 S.W.2d 1. c. 201, “(r)t has long been settled law in Missouri that the public may acquire the right to the use of a road or easement over the land of another, when such road has been established by condemnation, by dedication to public use by some unequivocal act, or from long use of the road as such by the public acquiesced in by the owner, and by adverse occupancy and use of the same by the public for a period of time equal to that prescribed by the statute of limitations (RSMo 1959, § 516.010) for the purpose of bringing an action of ejectment.” There is no issue in this case either by pleading or proof as to the fifty feet designated by the plat as a city street. This case and its record are concerned with a strip of land adjacent to and in addition to the dedicated street and the problem is whether the city has by adverse possession acquired a street in that area. The mere fact of the plat and its dedication of fifty feet to Pacific Avenue as a street does not preclude the acquisition of additional and adjacent land by adverse possession. “An adverse user by the public, by mistake or otherwise, for the requisite period of time, of lands outside of the lines of an established highway is generally held to create a prescriptive right to use such lands as a highway * 39 C.J.S. Highways § 12, p. 932.

The difficulty with the cases upon which the appellants rely in support of their position is that those cases are all concerned with the dedicated area, not adjacent or additional land. For example, in City of Laddonia v. Bay, 265 Mo. 383, 178 S.W. 741, the contest in ejectment was to a strip of ground alleged to be a dedicated street. The difficulty arose from the fact of an error, “no definite starting point is given in the description of the addition,” and so when Day purchased Block 4 he also claimed the adjacent area “as a part of his block, and the city claims it as a part of said Western avenue,” as shown of course on the recorded plat. There were several problems but as to these claims the court said, “Both parties acquired their respective interests in this strip of ground, as well as all of their interest they had in the land embraced within said addition, either directly from Mr. Smith or through mesne conveyances from him, and in pursuance to and in conformity to the plat thereof, as expressly stated in their muni-ments of title, as previously shown. This alone should and does effectually and permanently estop and debar defendant from claiming any interest whatever in the land in controversy.” And likewise, more recently, in City of Marshfield v. Haggard, Mo.App., 304 S.W.2d 672, the case involved “a boundary line dispute.” The contest was over a part of a street, both parties relying on platted surveys. The facts were quite complex but as far as material here and for the purpose of illustration the court said, “In other words, both took under the plat. The acceptance of these interests ‘estops’ them from questioning the relative locations as they were platted, and they cannot dispute the description and location of their property in reference to each other as platted and laid out.” City of Pacific v. Ryan, 325 Mo. 373, 28 S.W.2d 652, was a suit in ejectment by the city to recover possession of an alley. The trial court found for the defendant but in reversing the judgment this court said, “(t)he burden was upon the defendant to make out his claim of title by adverse possession * * * and he wholly failed to establish his title by adverse possession.” Guitar v. St. Clair, 238 Mo. 617, 142 S.W. 291, was a suit between individual property owners, both claiming under plats, in which the plaintiff sought to require the defendant to remove a fence which “the plaintiffs say, intrudes into a public street on which their property abuts, and in which they are especially interested. Defendant contends that the fence is on his own property, not in the street.” But again by reason of “a mistake of 20 feet in the measurement of her land” one of the parties had never owned “the 20-foot strip marked on her plat as dedicated.” The court pointed out that “(t)he land inclosed with defendant’s fence has never been used as a street; there are several forest trees on it; the city has never undertaken to improve the street in dispute; the only improvement of it was made by General Guitar.”

Neither the latter case nor any of the cases relied on by the appellants have anything to do with adverse possession, and they do not say that in addition to or separate and apart from a platted or dedicated street or other area a municipality may not also acquire a street by adverse possession, — providing of course, as here, the record as made by the appellants in presenting their cases establishes the fact. “In order to create a prescriptive highway right to lands outside the lines of an established highway, the user must be adverse and under claim of right, and not merely permissive.” 39 CJ.S. Highways § 12, p. 932. As demonstrated this record meets all the requirements of a street by adverse possession and in its essence is governed by Gilleland v. Rutt, supra; City of Caruthersville v. Cantrell, supra; La Grange Reorganized School Dist. No. R-VI v. Smith, supra, and annotation 76 A.L.R.2d 535.

While as indicated the city has established its claim and title to a street by adverse possession, the judgment must be reversed and the cause remanded. As noted, the court simply entered a judgment dismissing the plaintiffs’ petition, there was no specific adjudication of title as the parties prayed. And -in the argument section of its brief the city concedes that there is no “legal description of that portion of the roadway that is on Lot 11.” Therefore, the judgment is reversed and the cause remanded for such further proceedings as the parties deem advisable to precisely delimit the area of the street and finally to secure the entry of a judgment adjudicating and quieting the title, subject of course to the views expressed in this opinion.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.


author: FINCH, Judge.

text:
    ST. BETHEL MISSIONARY BAPTIST CHURCH, INC., a Corporation, (Plaintiff) Appellant, v. ST. LOUIS BUILDERS, INC., a Corporation, and C. F. Jacobsmeyer, Successor Trustee, Salem Missionary Baptist Church, a Corporation, and Columbus Perry, David Peebles, Chairman of Board of Trustees, Salem Missionary Baptist Church, Rev. Witty Williams, Pastor, Salem Missionary Baptist Church, (Defendants) Respondents.
    No. 50876.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Harry Gershenson, Homer N. Mastora-kos, St. Louis, for appellant.
    Chopin & Boisaubin, Alfred L. Boisau-bin, St. Louis, for respondents.
   FINCH, Judge.

Appellant’s bill in equity sought to have the foreclosure of a deed of trust set aside and the deed of trust itself cancelled, plus certain other relief, including the vesting of title to the real estate in question in appellant, subject to certain encumbrances. The trial court entered an order and judgment sustaining a motion of respondents to dismiss plaintiff’s bill for failure to state a claim on which relief could be granted. This appeal followed action of the trial court in overruling appellant’s motion to set aside the order of dismissal or in the alternative for a new trial.

The following appears from the bill in equity, the motion to dismiss, and certain court files which were attached to and incorporated by reference in the motion to dismiss. These were files of the Circuit Court of the City of St. Louis in a prior injunction suit (No. 47523-E) and a suit to redeem from a foreclosure (No. 47932-E), to both of which reference will be made subsequently in this opinion. Appellant had St. Louis Builders, Inc., (hereinafter, for convenience, referred to as Builders) build a church for it at 1905 Arlington Avenue, St. Louis, Missouri. It paid to Builders a part of the cost in the approximate amount of $35,000 and gave a note and deed of trust to Builders to cover a balance of $7400. These instruments were dated November 28, 1961. Subsequently, a new note and deed of trust from appellant, dated March 28, 1962, in the same amount and covering the same real estate, was given by appellant to Builders, and on March 29, 1962, the prior deed of trust dated November 28,1961, was satisfied of record. About the last of May a notice of trustee’s sale under the deed of trust dated March 28, 1962, was published, the sale to be held June 28, 1962. Appellant then filed an injunction suit (No. 47523-E) which sought to enjoin the proposed foreclosure on the basis of fraud, contending that Builders, for the purpose of creating a ground of foreclosure, had refused to accept a payment mailed to it and had returned same to appellant. Defendants were Builders and Walter E. Gottlieb, the trustee in the deed of trust. An order to show cause why a temporary restraining order should not be issued was served and a hearing thereon was held June 26, 1962. Evidence was heard by the court, at the conclusion of which the court took the matter under advisement. Later on that same day the court denied the requested restraining order and also ordered the case dismissed. Said order did not specify that the dismissal was without prejudice. No appeal from the order of dismissal was taken.

The foreclosure sale was held June 28, 1962, and Builders was the successful bidder. Prior to the actual sale, appellant served on the trustee under the deed of trust a notice of intention to redeem said property pursuant to the provisions of §§ 443.410 and 443.420, RSMo 1959, V.A.M.S.

On July 5, 1962, appellant filed its petition to redeem from the foreclosure sale and to have the court fix and approve a redemption bond (Cause No. 47932-E). A hearing was held, the amount of the redemption bond was fixed, and two bonds aggregating that total were approved. Builders then filed a motion to set aside the approval of the redemption bonds or in the alternative to require additional security. A hearing thereon was held, and on September 14, 1962, Builders’ motion was sustained, the approval of the bonds was set aside, and the order recited that the equity of redemption of appellant church was set aside. Appellant filed a motion for rehearing in which it recited that it had newly discovered evidence that the foreclosed deed of trust dated March 28, 1962, was obtained by Builders from appellant by fraud and deceit and misrepresentation. A hearing on said motion was held and it was denied. No appeal was taken in said case.

On October 16, 1962, Builders conveyed the property in question to Salem Missionary Baptist Church and took back a deed of trust from it.

On December 12, 1963, appellant filed its bill in equity herein. It asked the court to declare the deed of trust dated March 28, 1962, and the foreclosure thereof on June 28, 1962, null and void, to set aside a warranty deed from Builders to defendant Salem Missionary Baptist Church, as well as the deed of trust from said Salem Missionary Baptist Church back -to Builders, and vest title to the real estate in appellant, subject to the deed of trust of November 28, 1961, which appellant asked the court to reinstate. There also was a prayer for damages. The basis for the relief sought was alleged fraudulent representations by Builders and its president in procuring the execution of the deed of trust dated March 28, 1962. No misconduct by Salem Missionary Baptist Church or its officers is charged, nor is any basis alleged for setting aside either the deed from Builders to that church or its deed of trust to Builders. Defendants filed a motion to dismiss, alleging that the issues raised in appellant’s bill of equity were res judicata as a result of the injunction suit (Cause No. 47523-E) and the suit to redeem (Cause No. 47932-E). Various other grounds were alleged in the motion to dismiss, but in view of our disposition of this appeal it is not necessary to detail them. The motion to dismiss was argued and sustained by the trial judge. The order did not specify the grounds on which the court based its action. Thereafter, appellant filed its motion to set aside the order of dismissal or in the alternative for a new trial. This motion was overruled and an appeal was then taken to this court.

Even though the order entered by the trial court did not specify any ground as the basis of its action in sustaining the motion to dismiss, appellant seems to assume that it was on the basis that the issues were res judicata as a result of Cause No. 47523-E. Its brief contains three Points Relied On, all of which pertain to the question of whether the matters and things arising in the present action are res judicata as a result of the prior injunction suit. The three points collectively assert the propositions that the judgment in that suit merely denied the temporary injunction, which was an interlocutory rather than a final order, that there was no trial on the merits and hence no adjudication on the merits, and that the action of the trial court in dismissing the cause was erroneous because the court did not decide the merits of appellant’s claim.

This position asserted by appellant overlooks the effect of Civil Rule 67.03, V.A. M.R. It provides, in part, that “ * * * any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” The rule further provides that, “A dismissal with prejudice operates as an adjudication upon the merits.”

The order and judgment entered by the trial court on June 28, 1962, not only denied a temporary injunction, but also provided, “cause dismissed by court.” It does not specify on what basis or for what reason this action was taken. It was improper at that point, absent some impelling reason to the contrary, to deny a permanent injunction and to dismiss the case. State ex rel. Eagleton v. Cameron, Mo., 384 S.W.2d 627 [4]. The fact is, however, that it was done, and obviously it was an involuntary dismissal which did not specify that it was without prejudice. Application of said Civil Rule 67.03 results in this being a dismissal with prejudice, which was an adjudication upon the merits. No appeal therefrom was taken and the adjudication became final. Cases cited by appellant either are cases which arose before the adoption of Civil Rule 67.03 or are cases in which the application of the rule did not arise.

From the above it follows that at the very least the order of dismissal of June 28, 1962, would be res judicata upon the issue raised in said injunction suit as to whether Builders illegally and fraudulently created a ground for foreclosure of the deed of trust, and of the fact that appellant could not have the foreclosure enjoined for that alleged fraud.

In the instant case appellant seeks to set aside the foreclosure, plus cancellation of the deed of trust itself and various other instruments, on the ground that Builders and its president procured the execution of said deed of trust of March 28, 1962, by false representations. The question arises as to whether the doctrine of res judicata is applicable to these matters now asserted as a basis for equitable relief.

In the case of State ex rel. Ward v. Stubbs, Mo., 374 S.W.2d 40, 47, this court said: “A former adjudication on the same cause of action between the same parties is conclusive in subsequent proceedings as to every issue of fact which was or might have been litigated in the first proceeding under what is called estoppel by judgment. Abeles v. Wurdack, Mo.Sup., 285 S.W.2d 544, 546 [1-3]; Reis v. La Presto, Mo.Sup., 324 S.W.2d 648, 652 [2-5]; Ackley v. Ackley, Mo.App., 257 S.W.2d 404, 407 [5]; Prough v. Prough, Mo.App., 308 S.W. 2d 294, 295 [2] and Brady v. Brady, Mo. App., 71 S.W.2d 42, 47 [6-8].” This same rule is proclaimed in numerous other Missouri decisions. See also Kithcart v. Metropolitan Life Ins. Co., 119 F.2d 497, certiorari denied, United States ex rel. Kithcart v. Gardner, 315 U.S. 808, 62 S.Ct. 793, 86 L.Ed. 1207.

Appellant brought an equitable proceeding in June of 1962 seeking, on the basis of alleged fraud, to enjoin the foreclosure of the same deed of trust of which appellant still complains. In the instant suit appellant again brought an equitable proceeding, and again sought to attack the foreclosure and the deed of trust on which it was based for alleged fraud, but asserted different actions of Builders and its president as bases for such equitable relief. These instances of additional alleged fraudulent conduct by Builders and its president all occurred prior to the filing of the said injunction suit in 1962, and all could have been alleged as additional grounds for enjoining the foreclosure suit and could have been the basis for a request therein by appellant to cancel the deed of trust on account of said alleged fraudulent conduct. In the case of Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107, 114, this court said: “Furthermore, a former judgment is not only conclusive as to matters in issue and embraced within the issue, but as to all matters which the parties could have alleged to sustain their action or defense. The former proceeding being a suit in equity to cancel, set aside, and annul said deed, all matters which plaintiff could have alleged to set aside and cancel said deed in equity are deemed to have been adjudged in defendant’s favor, whether alleged in the petition in said cause or not, for the reason that a party cannot split up his cause of action nor vex his adversary piecemeal for the same cause more than once. Donnell v. Wright, 147 Mo. 639, 49 S.W. 874, and cases cited; [City of] St. Louis v. United Rys. [Co. of St. Louis], 263 Mo. [387] loc. cit. 424, 174 S.W. 78, and cases cited; Spratt v. Early, 199 Mo. 491, 97 S.W. 925; Leslie v. Carter, 268 Mo. [420] loc. cit. 428, 187 S.W. 1196.” The court then went on to say: “We hold, therefore, that all equitable grounds for annulling, setting aside, or revoking said instrument, urged by respondent in his petition, or in his brief, were determined against him in the former litigation, and are at rest.”

Appellant here seeks to assert additional equitable grounds which could have been asserted in the injunction suit in 1962. To permit appellant to do that would permit it to try its case piecemeal. This, as pointed out in Melvin v. Hoffman, supra, the appellant cannot do. As this court stated in Ogden v. Auer, Mo., 184 S.W. 72, 73: “If plaintiff had the right to maintain partition for any one of the three reasons she has from time to time urged, it was a duty she owed to the courts to plead them all in one action. If they were so glaringly inconsistent as to be maintainable only in separate actions, then they are too inconsistent to allow relief in equity in a case like this (Russell v. Sharp, supra) [192 Mo. 270, 91 S.W. 134], when separately pleaded. For equity ought not to aid those who urge as grounds for one and the self-same judgment positions so glaringly contradictory as to evince from the simple recital of them a lack of candor and clean hands, to say no more.” The opinion then continues: “Litigants are to be held bound to set out all reasons which they deem to exist for any relief they may consider themselves entitled to; they ought not to be permitted to take two or three bites to an equitable cherry any more than at a law cherry.”

Even though the action of the trial court in dismissing the case without a hearing on the request for a permanent injunction was erroneous, the court did have jurisdiction and the judgment entered is res judicata. As this court said in Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 529, “* * * nothing is better settled than the principle that an erroneous judgment has the same effect as to res judicata as a correct one. It has been held ‘that when a court has jurisdiction, it has jurisdiction to commit error.’ State ex rel. McCrew Coal Co. v. Ragland, 339 Mo. 452, 97 S.W.2d 113; McIntosh v. Wiggins, 356 Mo. 926, 204 S.W.2d 770, and cases therein cited; 30 Am.Jur., Judgments, § 198, p. 939; 50 C.J.S., Judgments, § 618, pp. 40-42. If it was to be asserted that the judgment rendered in the former action was erroneous, the plaintiffs’ remedy was by appeal and not by attacking the judgment as void in another proceeding. McIntosh v. Wiggins, supra.” See also United States ex rel. and to Use of First National Bank of Cape Girardeau, Mo. v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8; State ex rel. Metropolitan Life Ins. Co. v. Hughes, 347 Mo. 549, 148 S.W.2d 576, and Payne et al. v. St. Louis Union Trust Co., et al., No. 50,539, Mo., 389 S.W.2d 832.

The foreclosure sale was held June 28, 1962. Appellant obviously was aware of the action of the court on June 26, 1962, because it served written notice at the sale on the trustee of its intention to redeem from the sale and to file its petition for approval of its bond under §§ 443.410 and 443.420, RSMo 1959, V.A.M.S. Then on July 5, 1962,.such a petition and application were filed. Actually, the validity of the trustee’s sale was admitted by implication by appellant when it sought to redeem therefrom pursuant to the statute. White v. Huffman, Mo., 301 S.W.2d 824.

In the redemption suit the trial court first approved and later disapproved bonds filed by appellant, and having done so entered an order and judgment denying to appellant its right of redemption. Appellant then filed a motion for rehearing in which it sought to obtain a rehearing based on the grounds now asserted in the bill in equity presently on appeal. The trial court denied that motion for rehearing and no appeal was taken by appellant in that case from the court’s judgment. We thus have a situation in which the trial court in Cause No. 47932-E has denied relief to appellant on the very grounds now sought to be asserted in the case now on appeal.

It should be pointed out that present counsel for appellant were not involved either in Cause No. 47S23-E, the injunction suit, or Cause No. 47932-E, the suit to redeem. This does not alter the fact, however, that appellant now seeks to maintain an equitable action for fraud, the grounds asserted being ones which could have been alleged in the original injunction suit but were not, and which were alleged as grounds for a rehearing in the redemption suit but were rejected by the court. Both of those judgments became final and, as pointed out, constituted hearings on the merits. Under those circumstances, we are of the opinion, as this court said in Kansas City to Use of Missouri Pacific R. Co. v. Southern Surety Co., Mo.App., 51 S.W.2d 221, 224, that the “principle of peace and repose should be applied to the present case.”

The judgment is affirmed.

All of the Judges concur.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles (Chuck) TURNBOUGH and B. L. (Jack) Clifton, Appellants.
    No. 50828.
    Supreme Court of Missouri, Division No. 2.

    April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
    Robert A. Mcllrath, Flat River, for appellant.
   STORCKMAN, Presiding Judge.

The defendants Charles (Chuck) Turn-bough and B. L. (Jack) Clifton were jointly charged, tried and convicted of arson. Section 560.025, RSMo 1959, V.A.M.S. They duly filed a joint motion for new trial which was overruled and each was sentenced to a two-year term of imprisonment in accordance with the verdict of the jury.

The defendants were represented at the trial by counsel of their own choice. Their counsel filed a notice of appeal for each of them and approved the transcript of the record on appeal but did not file a brief on their behalf in this court. The attorney general has completely briefed the case on behalf of the state. In this situation we review on appeal all assignments of error properly preserved in the motion for new trial and the essential portions of the record. S.Ct. Rules 27.20,28.02 and 28.08, V.A.M.R.; State v. Williams, Mo., 376 S.W.2d 133, 134[1],

The motion for new trial contains ten assignments of error, four of which relate to statements made by the prosecuting attorney during oral argument. However, the argument of counsel is entirely omitted from the transcript of the record. Where argument of counsel is alleged to be erroneous and the argument is not included in the transcript of the record, nothing is presented for appellate review since the assignments in the motion for new trial standing alone prove nothing. State v. Ronimous, Mo., 319 S.W.2d 565, 567[4].

The defendants contend that the trial court erred in refusing to give their instructions directing acquittals at the close of the state’s evidence as well as similar instructions offered at the close of all the evidence. After the instructions were refused at the close of the state’s evidence, both defendants testified and introduced other evidence in their behalf. Where a defendant adduces evidence in his own behalf, he waives his right to claim error in the overruling of his motion for a judgment of acquittal offered at the close of the state’s case and the sufficiency of the evidence to support the verdict must be determined upon the entire evidence. State v. Davis, Mo., 365 S.W.2d 577, 579[3],

The allegation of error in the motion is that a judgment of acquittal should have been entered at the close of all the evidence because the state did not prove all the elements of the crime charged. In determining the sufficiency of the evidence to support the conviction, the appellate court must consider as true all evidence favorable to the state together with inferences that can reasonably be drawn therefrom and must reject contrary evidence. State v. Sykes, Mo., 372 S.W.2d 24, 26[3].

In December 1962, the defendant Turn-bough began the operation of the M.F.A. Service Station located at the Junction of Highways 72 and 67 in or near Frederick-town. The land and building were owned by Floyd D. Randolph and Louise W. Randolph, his wife. The defendant Turnbough owned the tools, tires, and other personal property connected with the operation of the business. The defendant Clifton had been employed by Turnbough since sometime in May 1963 as an attendant at the service station. On June 5, 1963, a fire occurred in the building located on the premises. The fire department attacked the fire with “high pressure fog streams” through an open window at the rear of the building. After the fire was extinguished and the building could be entered, an examination was made to determine the cause of the fire. Under the open window, Fire Chief Marvin Graham found a five-gallon open can or bucket containing approximately two gallons of gasoline and some towels. Near the middle of the room was a five-gallon can containing some gasoline with the covers removed from two openings on the top. There was another can of a gallon or gallon-and-a-half capacity which smelled of gasoline. The fire chief testified that the fire started near the rear wall under the window, burned its way through a rack of tires, and on up to the ceiling. The building was constructed of concrete blocks but had a wooden partition and wooden roof. Defendant Turnbough was in St. Louis at the time of the fire. Defendant Clifton was not in Fredericktown but returned later that night.

There was evidence that the defendant Turnbough took an inventory of all the stock about five days before the fire and removed or caused to be removed from the service station building tools, tires, and other merchandise. Clifford “Red” Francis who was serving a penitentiary sentence on another offense at the time of the trial testified that about four weeks before the fire Turnbough offered him and his brother-in-law $200 to burn the station, but Francis refused. About three weeks before the fire, in the presence of defendant Clifton, Turnbough told Francis and Clifton he wanted them to burn the station, but they decided not to do it. About three days before the fire, which was after Turnbough had gone to St. Louis on his vacation, Clifton called Francis to the station where Clifton was talking to a boy known to Francis as Scroungey. Clifton said he got Scroungey to do the job for $100 but Scroungey never did say whether he would or would not do it. Harold Wayne Rolens, a part-time employee at the service station, and apparently the boy nick-named Scroungey, testified that he went to the station at about 2 p. m. on the day of the fire and found Red Francis and Jack Clifton there. Clifton asked Rolens if he wanted to make some money by burning the station; Rolens said he didn’t want any part of it and left. When Rolens came back to work at 4 p. m., Clifton and Francis were there and Clifton asked him again to burn the station. Francis said he wouldn’t have to worry about anything if he kept his mouth shut. After a while, Rolens told them he would do it. When he closed the station at 8 p. m., Rolens went to his girl’s house about a half a block from the station where he stayed until about 9:45 p. m. He then called a taxicab to pick him up at the service station. Rolens then walked to the station, sent the taxicab around the corner, went to the back of the building and dropped a lighted match through an open window into the bucket containing shop towels and gasoline. Rolens then went to where the taxicab was parked and was driven to his home. He further testified that Jack Clifton was the one that told him he would get $100 for burning the place. Two days after the fire, Rolens went to the Turnbough home in response to a call. Clifton was also there and Turnbough told them to go along with anything he told the adjuster for the fire insurance company. On two or three occasions Rolens went to Clifton’s home and asked him if he had been paid and if Turnbough had settled his insurance claim. The day before they were arrested, Turnbough and Clifton met Rolens on a side road pursuant to arrangement; they told him if he was “picked up” to try and lie his way out of it and around a lie detector test. Rolens pleaded guilty to a lesser offense and was placed on probation.

Two highway patrolmen testified that they took statements from Turnbough and Clifton and related the circumstances and some of the conversations they had with the defendants, all of which were included in the statements. In his written statement dated September 13, 1963, the defendant Turn-bough stated that a fire started and burned a hole in the roof about a week after he opened the station in December 1962. About a month prior to June 5, 1963, he got acquainted with Red Francis who did some mechanical work for him. The statement further recites: “I don’t know how it come about — but the first fire was mentioned one day, and he [Francis] said how come you didn’t collect from the insurance company and I said nothing was damaged. I said something like I wished the place had burned to the ground so I could have collected the insurance. Then Red said what would it be worth to you to have the place burned down — would you give $200 to have the place burned, and I said sure. This came up several times after this. He said will you still give me $200 to burn the place down and I said sure. The day that I left on my vacation Red was at my station. When I started to drive off Red said: ‘Is it still worth $200 for this station to burn down, and I said sure, go ahead.’ If this is making arrangements with Red to burn the station then I made them.”

In the first statement taken from the defendant Clifton dated September 13, 1963, he denied that Turnbough had made any arrangements with him to bum the station, but told of conversations with Red Francis in which Francis said that Turnbough had propositioned him to do so but he was not going to do it because Turnbough “had told too many people.” The second statement taken from Clifton on September 18, 1963, contained these questions and answers:

“Q. Did Chuck Turnbough hire you and, Clifford (Red) Francis to burn the M.F.A. Service Station that he was operating on Highway 67? A. Yes he talked to Red and me about burning the M.F.A. Station that he was operating, he said he would give us $200.00 to burn the station. Q. When did Charles Chuck Turnbough first talk to you and Red Francis about burning the station? A. It was two or three weeks before it burned that he taked [sic] to us about burning the place. Q. Where were you when he first talked to you about burning- the station? A. I was working at the station for him. He also talked to Red at the same time. Q. What was his reason for wanting the station burned? A. He said he was not making anything and was going behind every day he run the place, and wanted us to burn it so he could collect the insurance on the place. Q. Was there any set time or date for you and Red Francis to burn the station at the time Turnbough talked to you in May 1963, about burning it? A. No there was [no] set time he just said to burn it when we got ready. Q. What agreement did you and Red have with Turnbough about being paid to burn the station? A. He was to pay Red the $200.00 and Red was supposed to pay me my $100.00. We were not supposed to be paid until Turnbough got his insurance money. Q. How long was it after you and Red Francis agreed to burn the station was it that you and Red talked to the Rolens boy about burning the station? A. We did not talk to the Rolens boy until the day it burned about burning it. It was about 1:00 p. m. in the afternoon that we talked to him there at the station about burning it. There was nobody there but Harold Rolens, Red Francis and me. Q. How did you and Red Francis approach the Rolens boy about burning the station, by that I mean what did you first say to him about burning the station? A. I ask him if he would like to make $100.00, and he said doing what. I told him that Chuck said he would give him $100.00 to burn the station. He first said he might get caught and then said he would burn it for the $100.00. Q. Did Rolens say he would burn the station that night? A. No he did not say he would burn it that night, but he would burn it. Q. Did you and Red Francis tell Rolens you were supposed to get $200.00 from Turnbough to burn the station? A. No we did not. * * * Q. When was the first time after the M.F.A. Station burned that you talked to Red Francis and Charles (Chuck) Turnbough about the place burning? A. I talked them the next morning about 11 :a. m. at the station. Q. What did you and them talk about in regard to the station burning that morning ? A. Red Francis said he did not think the Rolens boy would have guts enough to burn the place and Chuck said he did not think he would either. I said that I wished he did not now, and I was going to try to talk him out of it if I had of got to see him again before he burned it.” The statement also dealt with the property and merchandise taken from the station before the fire. Another statement taken on October 26, 1963, reaffirmed the truth of the September 18th statement but added no new facts.

On the stand Clifton denied he had arranged with anyone to burn the station and in effect said all the information he had and passed on was what Red Francis told him. He acknowledged that he gave the statements voluntarily and that he knew their contents before he signed them. Turnbough also denied that he procured anyone to burn the station. Both Clifton and Turnbough testified that because of the previous fire in December 1962 and an earlier one at another station he had operated there was much joking by customers and others about whether there was going to be another fire; it was “kind of a standing joke around there.”

The evidence was clearly sufficient to support the verdict as to each of the defendants. State v. Ferrara, Mo., 320 S.W.2d 540, 544 [1]; State v. Rudman, 327 Mo. 260, 37 S.W.2d 409, 410 [1]; State v. Sheline, Mo., 225 S.W. 673, 674 [1]. The court did not err in refusing to direct verdicts of acquittal.

The defendants assert that the trial court erred in allowing the fire chief, Marvin Graham, “to testify as to the origin of the fire, and the intensity of the heat.” The assignment is of doubtful validity in view of its vagueness and lack of particularity. See S.Ct. Rule 27.20(a), and State v. Davis, Mo., 371 S.W.2d 270, 271-272 [2]. But we will pass that question and review the assignment on its merits. Mr. Graham had been a member of the fire department for 30 years, had witnessed near to 1,000 fires and had taken courses in fire fighting at the University of Missouri. He was shown to be properly qualified as an expert in this field. He observed the fire while it was burning and in answer to questions testified that the fire started near the rear wall under the window and burned upward through a rack of rubber tires to the ceiling, and that the heat was most intense at that point. The defendants' objections that the questions called for opinion evidence and invaded the province of the jury are not well taken. State v. Paglino, Mo., 319 S.W.2d 613, 624 [15]. The court has a wide discretion in determining the admissibility of opinion evidence of this kind, and no abuse of discretion is shown by the record. State v. Menard, Mo., 331 S.W.2d 521, 524 [4]; 23 C.J.S. Criminal Law § 858(7), p. 397.

The motion for new trial further alleges that error was committed in allowing State Highway Patrolman R. C. Caldwell to testify to statements taken from the defendant Clifton after Mr. Caldwell knew that the defendant had hired an attorney. It appears, largely from the testimony of Mr. Caldwell, that he talked to defendant Clifton on September 14, 1963, and again on September 18, when a written statement was taken. On October 26 Mr. Caldwell again interviewed defendant Clifton and asked if anyone had talked to him about changing the statement he signed on September 18. Clifton replied in the negative and asked Caldwell if he was going to take another statement and Caldwell said he was not. Defendant Clifton then said that his attorney had told him to keep his mouth shut and not to sign any more statements. Caldwell asked if the written statement made on September 18 was true and Clifton said it was. Caldwell asked if Clifton was willing to sign a statement to that effect and Clifton said he was. Such a statement was signed before a notary public and the statement of September 18 was signed again. The evidence affirmatively shows that the statements made by defendant Clifton were entirely voluntary. In fact Clifton so testified when on the stand in his own behalf.

The evidence does not definitely show when Clifton hired his attorney, but Mr. Caldwell admitted he knew that Clifton had an attorney when he talked to him on October 26. The information was filed on September 16, 1963, but there is no evidence of when Clifton was arrested or at what time or times he was in custody. The first objection to this testimony of Caldwell was: “I want to object to this, if this statement was taken after he had hired an attorney and the State Patrolman knew about it. There was some of these statements that Mr. Caldwell took after an attorney was hired.” Later Clifton’s counsel stated: “I am certainly going to object to them using the testimony that they took when they knew I was attorney and wasn’t present.” Trooper Caldwell’s testimony regarding the interview on October 26, 1963, was objected to in this fashion: “Now, if the Court please, I’m going to object to that. I know definitely that I, that I was attorney. He knew it at that time.” When the written statements, exhibits F, G, H, I, and J, were offered in evidence, defendants’ counsel made this objection: “Now, I’m going to object to all those that were taken after I was employed as an attorney and not informed that they were being taken so I could be present to represent my client at the time they were taken.” The only evidence within the purview of the objections was that pertaining to the interview of October 26. Clifton did not request that his counsel be present and nothing was done to hinder or prevent the defendant from obtaining advice of counsel. In fact it appears that the defendant had advice of counsel on the subject matter and voluntarily chose not to follow it. All the evidence shows that his responses were voluntary. Since the record discloses that the defendant Clifton’s right to counsel was not violated, the trial court did not err in overruling the objection. State v. Pippin, 357 Mo. 456, 209 S.W.2d 132, 134 [3, 4]; State v. Richardson, 340 Mo. 680, 102 S.W.2d 653, 655 [2].

Since constitutional grounds were not specified in the objections or in the motion for new trial, no such grounds were preserved for appellate review. State v. Griffin, Mo., 339 S.W.2d 803, 805-806 [6], certiorari denied 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849. We have, nevertheless, re-examined recent decisions of the Supreme Court of the United States including Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Our rulings are not inconsistent with those decisions on the facts affirmatively appearing in this record.

The defendants’ allegation that the ownership of the building at the time of the fire was not proved is not borne out by the transcript. On behalf of the state, M. W. Parkin, an abstractor whose qualifications were admitted, twice during his examination without objection testified that he had examined the records as of June 5, 1963, that the property was owned by Floyd D. Randolph and Louise D. Randolph, his wife, and that he knew the owners personally. The assignment is without merit and is denied. 6 C.J.S. Arson § 32, p. 754; 22A C.J.S. Criminal Law § 692, p. 911; 73 C.J.S. Property § 19, p. 214.

The defendants’ final contention is that instruction No. 3 was not supported by the evidence. The instruction, in substance, told the jurors that they should find the defendants guilty if they believed from the evidence and beyond a reasonable doubt that the defendants Turnbough and Clifton entered into a conspiracy, agreement and common design with Clifford Francis to set fire to the building of Mr. and Mrs. Randolph, that thereafter Francis and Clifton, or either of them, in prosecution of the conspiracy procured Harold Wayne Rolens to set the fire and that Rolens on June 5, 1963, did set fire to and burn the building although the defendants were not present when the building was set afire. The facts hypothesized clearly and faithfully conformed to the evidence. The instruction was supported by the evidence and the court did not err in giving it. See State v. Pease, Mo., 133 S.W.2d 409, 413-414 [8]; State v. Richards, Mo., 11 S.W.2d 1035, 1036 [2]; and State v. Strickland, Mo., 289 S.W. 557, 558 [3].

We have considered all assignments of error preserved in the defendants’ motion for new trial and find them to be without merit. The defendants were present throughout the trial including their allo-cution and sentencing. We have examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A. M.R., and find them to be in proper form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


text:
    Vernon M. PUCKETT, Respondent, v. M. E. MORRIS, Director of Revenue, State of Missouri, Appellant.
    No. 50692.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Riddle, O’Herin & Newberry, Malden, for respondent.
    Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for appellant.
   BARRETT, Commissioner.

This is an appeal by the state in a case concerned with the suspension of both a driver’s license and the privilege of operating a motor vehicle on the highways of Missouri for failure to comply with the safety responsibility law by depositing security as required by the Director of Revenue. Sections 303.010-303.070 RSMo 1959, V.A.M.S. According to- documents in the record containing among other things a written statement by the respondent Vernon M. Puckett, on Saturday, September 7, 1963, at noon, on Highway 61 three miles north of New Madrid “started to pass a car but decided to apply my brakes and drop back into my lane of traffic. At the same time the car I had started to pass applied his brakes, slowing down and preventing me from getting back into my lane. At that time car #2 was approaching and I pulled to the left to get out of the way. Car #2 struck the right side of my car.” As a result of the collision two people, Claude and Mona Wright, received serious personal' injuries, and Robert Cantrell died as the result of injuries received in the accident. It is not necessary to relate the details as to Puckett’s lack of insurance, it is sufficient to say that according to the documents in the file he had no liability insurance and therefore the supervisor of the safety responsibility unit, pursuant to the statutes, required Puckett to deposit security in the sum of $8,675.00. And, as stated, upon Puckett’s failure to comply with the order the supervisor suspended his “operating and registration privileges.”

On January 28, 1964, in the Circuit Court of New Madrid County, Puckett filed a petition to review the order of the Director of Revenue alleging that the decision of suspension was arbitrary and an abuse of discretion. The Director of Revenue immediately responded with a “return” to the petition for review by filing in the circuit court all records, notices and letters, thirty-one in number, constituting the department’s file suspending Puckett’s privileges. Whereupon the court issued an order that the suspension of Puckett’s privileges “be stayed and held in abeyance until further order of the Court.” On February 20, 1964, by leave of court, Puckett filed a “Supplemental Petition for Limited Driving Privileges” alleging that unless “granted limited driving privileges as requested, it will work an undue hardship on him because he will be prevented from earning a livelihood, as provided by Section 302.309(3).” On February 25, 1964, the Circuit Court of New Madrid County, “(a)fter considering the pleadings, the proof adduced and statement of counsel,” entered a judgment granting Puckett “limited driving privileges and registration of vehicles used in farming operations limited to Plaintiff’s farming operation in the Counties of New Madrid, Scott and Mississippi in the State of Missouri.” With the record in this posture the Director of Revenue filed a notice of appeal and of course since he is a state officer the appeal has been lodged in this court.

By its brief and argument the state contends that the court erred in adjudging to Puckett limited driving privileges because tinder his initial petition for review the “only issue before the court” was the reasonableness of the order requiring him to deposit security and comply with the safety responsibility act. In brief, the state’s argument is that the director’s action of suspension was not under chapter 302 relating only to driver’s licenses and their revocation under the point system but was under chapter 303 relating, as indicated, to the safety responsibility law. It is argued that under the safety responsibility law there is no provision for limited driving privileges, at least until there has been compliance with the supervisor’s orders and therefore a compliance with the act. It is said that the court’s procedure in this particular case is repugnant to the state’s public policy and has the effect of defeating the purposes of the safety responsibility law.

The problems of this appeal are further complicated by the failure of respondent’s counsel to respond in any appropriate manner to the appeal and to the state’s brief and thus the court is deprived of the full benefits of an adversary proceeding.

In any event this brief outline is sufficient to point up the essential problem with which the court is confronted and that is whether upon this record the court is in any position to attempt a definitive disposition of the whole cause upon its merits. To state the problem in still another manner, the obvious question is whether there has been a final disposition of all issues and therefore a final, appealable judgment. As stated, in response to Puckett’s petition to review the order of. suspension the state made a return and deposited thirty-three documents. But there has been no hearing upon the petition and response and it does not appear that any of these documents were either introduced in evidence or considered by the court. Then too, the judgment recites that upon the hearing of the supplemental petition there was “proof adduced and statement of counsel” but there is no proof or statement of counsel in this record. Except for the thirty-three records attached to the director’s return the entire record lodged here consists of four “record entries,” the original petition for review, the return, the supplemental petition, the noted judgment and the notice of appeal.

Of course there are no comparable cases but there are some rather compelling analogies. One record entry recites that the court ordered that the suspension “be held in abeyance until further order of the court.” That entry is fairly comparable to an intermediate, conditional or interlocutory order and of course is not a disposition of the matter and is certainly not a final ap-pealable order. State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113; State ex rel. State Highway Commission v. Smith, Mo., 303 S.W.2d 120. Exceptions as such have been abolished but when the supplemental petition whs called for hearing it should have been called to the court’s attention that the original petition for review was pending, perhaps there should have been a request for a hearing or a disposition of that motion, particularly if there is any difference or inconsistency in the two procedures under the two statutes. The hardship and the granting of limited driving privilege statute does provide that “[t]his subsection does not apply to any person whose license has been suspended or revoked (1) for any reason which would have disqualified him or made him ineligible for a license under section 302.060 * * RSMo Supp., Sec. 302.309(3). And section 302.060(7) provides that the director may not issue a license under that chapter “To any person who has an unsatisfied judgment against him, as defined in chapter 303, RSMo, until such judgment Eas been satisfied or the financial responsibility of such person, as defined in section 303.-120 RSMo, has been established.”

This is not to construe this or any other section of either the driver’s and chauffeur’s license act or the safety responsibility law and neither is it to say whether in any case under the latter statute the circuit court may or may not grant limited driving privileges. It would appear upon this record, however, that in no event should the court have disposed of the “supplemental petition” without also disposing of the principal “petition for review” or in some manner relating the purported supplement to its central and pending issue. Since the one was held in abeyance there has been but a partial disposition of a pending cause. Even if the issues were separable, another matter not determined at this time, and even if appropriate there was no request or order for a separate trial of issues. The consequence of all these matters is that the court is now confronted with an appeal in a case in which there has not been a final disposition of all issues and with a record in this posture the court is in no position to dispose of the appeal on its merits. Bennett v. Wood, Mo., 239 S.W.2d 325; Webster v. Sterling Finance Co., Mo., 165 S.W.2d 688.

For the indicated reasons the judgment on the supplemental petition is reversed and the cause remanded.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM: The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.

All of the Judges concur.