text:
    In the Matter of Charlotte BARGER and Shayne Barger, Minors. Charles Franklin BARGER and Olavetta Barger, Petitioners, v. Eleanor MINKS, a.k.a., Eleanor Koch, a.k.a., Eleanor Benway, Respondent.
    No. 31082.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1963.

      Ralph R. Giessow, Marcella E. Widdoes, Clayton, for petitioners.
    Corrine L. Richardson, St. Louis, for respondent.
   BRADY, Commissioner.

The petitioners in this habeas corpus proceeding are the maternal grandfather and step-grandmother and also the adoptive parents of Charlotte Barger, a female child now 11 years of age, and of Shayne Barger, a female child now 13 years of age. The respondent, Eleanor Minks, also known as Eleanor Koch and Eleanor Benway, is the natural mother of these children. The petitioners adopted these children in Oakland County, State of Michigan, by decree dated November 19, 1959. The respondent and the children appeared in obedience to our writ and upon ascertaining that the respondent was without counsel and unable to retain counsel, this court appointed her attorney of record to represent her in these proceedings and granted additional time for counsel to consult with her and to file her return. The effect of that return was to deny the legality of the Michigan adoption decree for reasons that will be statéd in detail later herein.

These two children were among the six born of the marriage of the respondent and Mr. Minks, all of which were placed in the custody of respondent by the St. Francois County Circuit Court in the divorce decree granted respondent in July of 1954. In 1955, respondent made arrangements with her father and his wife, petitioners herein, to take care of Shayne and the next year Charlotte also went to the Bargers in Michigan with respondent’s consent. In November, 1957, the petitioners sought the aid of the Probate Court of Oakland County, State of Michigan, hereinafter referred to as the Michigan court, which court has jurisdiction of cases involving neglect and abandonment of children and of adoption proceedings in that county of that state. See Sec. 27.3178(541), Michigan Statutes Annotated, Comp.Laws 1948, § 710.1. On November 21, 1957, a petition was filed in the Michigan court alleging:

“Children are without adequate food, shelter, clothing, supervision, education, medical and other physical care necessary for their health, morals and well being, and the parents, legally responsible, have failed and neglected to provide therefore, for the reason that, towit: — The parents are divorced, and the mother, who has custody, did place Shayne with the maternal grandfather, Frank Barger in March, 1955; she did also place Charlotte with the maternal grandfather in May, 1956,; the father is in the Missouri State Penitentiary, and the mother has failed to contribute towards the support of the children; she has also failed to show - ■any interest in their welfare and well being, contrary to the form of the statute in such case made and provided”

The petition was sworn to by petitioner Charles Barger., On this petition, respondent’s name was given as “Eleanor Koch”, respondent having then remarried, and her address as “3414 S. Jefferson, St. Louis, Mo.” and the father’s address was given as “Missouri State Penitentiary”. The respondent personally appeared at the hearing on this petition, as did the children’s father, Clyde Minks. The hearing was held on February 11, 1958, and the transcript of that proceeding is a part of the record in this case. In view of our decision herein, certain excerpts from that transcript are particularly important and are set out herein.

At one point in the proceeding the court, speaking to Mrs. Barger, stated:

“Court:
“ * * * but this mother has the primary right to her children, (emphasis supplied)
“A. (Mrs. Barger) I believe that too. (emphasis supplied)
“Court:
“I have something to tell you please. Secondly I think the children would be better off with you people for this school semester. But there is a third thing about it. Unless you can get along with the mother and help her to feel she has security with the children I will have to take them away from you and possibly not give them to her either. I am telling you this * * * (emphasis supplied)
“Stepgrandmother:
“We love them and she loves them, they are her children. If she could take care of them better then I should think she should have them.” (emphasis supplied)
“Court:
“I agree with you there are other things that could be done that would save that expense (of the respondent coming to Michigan to visit the children). However, these youngsters could finish school here this Spring and if they were prepared for it they could come and visit you.” (emphasis supplied)
“Court:
“ * * * I think what you have to decide here what you are going to do, not today, but decide it later in May or June. I think we should get everything off our chest here today, because it isn’t sensible to keep you running back and forth. If we decide the children should stay this year and next with the grandparents * * *" (emphasis supplied.)

At another point, the following appears:

“Grandfather:
“We have told them who their parents are. * * * I went to St. Louis once and to my son’s house and they didn’t know where they lived. I drove until four in the morning with the son and my wife looking for them and on that occasion I never did find them, but I couldn’t find them to give then any aid whatsoever.
“Mother:
“My mother knows where I am at all times, (emphasis supplied)
“Grandfather:
“I didn’t go to her mother. Your mother and I were divorced when you were a little girl.”

The remainder of the transcript is not pertinent to our inquiry except that at the conclusion of the hearing, the court stated:

“Court:
“Very well. We are making a temporary order that the children stay where they are.”

The Michigan court’s order, in its pertinent parts, appears as follows with the asterisk indicating a blank to be .filled in on the printed form with the appropriate word:

“IT IS ORDERED, That said children be and is hereby adjudicated to be a ^temporary ward of this Court, and,
“IT IS FURTHER ORDERED, That said children shall be placed in the care and custody of their grandparents, Mr. and Mrs. Frank Barger, 303 Godfrey, South Lyons, Michigan, and under the supervision of Mrs. L. Floyd;- and
“IT IS FURTHER ORDERED, That this cause shall be and the same continued until further order of the Court.
“Arthur E. Moore “Judge of Probate
“Filed 11th day of February A.D. 1958 “Elsie J. Vascassenno Recorded in Li-ber 21c
“Page 8399ms
“Probate Register, Juvenile Division “ * ‘Temporary’ or ‘permanent’ ”

The evidence is that, under the Michigan procedure, the staff of the probate court actively participates in the initiation and presentment of proceedings that court deems best for the future welfare of the children under its jurisdiction including proceedings for permanent custody and adoption. Sometime after this hearing, a court worker asked the petitioners if they would be interested in adopting these children and on September 4, 1959, the Michigan court, as stated thereon, “On the Court’s Own Motion” instituted a proceeding alleging “ * * * a rehearing should be had to evaluate further plans * * * ” and calling for a hearing on the 6th day of October, 1959. Copies of the summons were served by certified mail, addressed to-the respondent in the name of Eleanor Minks Koch at 3414 South Jefferson, St. Louis, Missouri. The mail was returned marked “Moved, left no address”. It does not appear from the evidence, but it is obvious that at some date after this another petition was filed. This must be the case because the order of publication recites that “Petition having been filed in this Court alleging that the present whereabouts of the parents of said minor children are unknown and said children are dependent upon the public for support and that said children should be placed under the jurisdiction of this Court” and this allegation differs from that contained in the September 4th petition. The Michigan court ordered service by publication. The proof of publication shows the following notice was published on October 3rd:

“STATE OF MICHIGAN — In the Probate Court for the County of Oakland, Juvenile Division.
“In the matter of the petition concerning Shayne and Charlotte Minks, minors. Cause No. 15590.
“To: Clyde Minks and Eleanor Minks Koch, parents of said children. “Petition having been filed in this Court alleging that the present whereabouts of the parents of said minor children are unknown, and said children are dependent upon the public for support, and that said children should be placed under the jurisdiction of the Court.
“In the name of the people of the State of Michigan, you are hereby notified that the hearing on said petition will be held at the Oakland County-Service Center, Court House Annex, 1260B West Blvd., in the City of Pontiac in said County, on the 13th day of October, A.D. 1959, at one o’clock in the afternoon, and you are hereby commanded to appear personally at said hearing.
“It being impractical to make personal service hereof, this summons and notice shall be served by publication of a copy one week previous to said hearing in the Pontiac Press, a newspaper printed and circulated in said County.
“Witness, the Honorable Arthur E. Moore, Judge of said Court, in the City of Pontiac in said County, this 1st day of October, A.D. 1959.
“(Seal) ARTHUR E. MOORE “Judge of Probate
“ELSIE J. VASCASSENNO, “Probate Register, “Juvenile Division “Oct. 3, ’59”

The hearing on October 13, 1959, was before a referee whose responsibility was to make recommendations to the Michigan court based upon the testimony taken before him. That transcript is also on file before us and consists of 1 ¾ pages of testimony. The referee recommended “ * * that these girls be made permanent wards of the court for the purpose of consenting to such adoption as may seem advisable.” The court entered such an order reciting therein “ * * * and due notice thereof having been given as required by law * * ” and sent certified copies to the respondent and Mr. Minks at the address on South Jefferson in St. Louis City but these were again returned marked “Moved, left no address”. On the same day as the hearing before the referee, a petition for adoption for each child was filed by court personnel on behalf of the petitioners. On October 26, 1959, the court entered its consent to the adoption of each child.

On November 19, 1959, the Michigan court entered its order terminating parental rights which recites the petition for adoption as having been filed and the consent filed by the court and then reads as follows insofar as pertinent:

“NOW, THEREFORE, this court does hereby determine and find; that the consent to such adoption and legal authority for the execution of such consent was genuine, and in accordance with law; * * *.
“NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED:
“1. That the rights of said children’s natural parents, or the persons in loco parentis, other than the petitioners in this cause, are hereby terminated and said children are hereby decreed to be wards of this court for the purpose of adoption.”

On the same day, the Michigan court also entered a separate order on each child which recited that a petition for adoption had been filed, consent given, an investigation and report made, an order terminating parental rights entered and that it be the best interest of the children and “ * * * all interested parties, that immediate authorization of said adoption be made;” decreed the adoption of each child by the petitioners.

The transcript of the proceedings before the judge of the juvenile division of the Circuit Court of the City of St. Louis contains the testimony of the parties and other witnesses going to the respondent’s contention that the petitioners were guilty of fraud in the procurement of this adoption decree. No useful purpose will be served by setting out in detail the testimony of the parties or their witnesses given in the proceeding before the special commissioner of this court, but this does not mean that it has not been carefully considered. However, in view of the disposition made herein of this matter, it is only necessary to set forth certain parts of that testimony. For the purposes of the respondent’s contention as to fraud, the following' excerpts from the testimony will suffice. The petitioner, Mr. Barger, was asked the following questions and gave the following answers:

“Q. Now, were these proceedings instigated then, this petition was written in November — signed November 21, 1957; did you just walk up to the courthouse and ask them to write the petition to take temporary custody?
“A. No. May I explain how that •same about?
' Q. Yes. A. We had the children, Mid we knew that Eleanor wasn’t able to take care of them. She was running around from here to there and there. She got an idea she wanted to come up and get the children and called us on the telephone and said she would he up in a couple weeks to get the children. And for the children’s sake I went to an attorney and asked what I should do and I told him the situation. He says, ‘You go to the probate court and see Mrs. So and So, and she will tell you what to do.’ And that' is when this court worker instigated the investigation in St. Louis and filed.” (emphasis supplied.)

At another point, when asked “What was your reason for bringing a custody proceeding?”, Mr. Barger testified that:

“A Well, my daughter had called my wife, not me; she had called my wife. She said she was going to come and pick the children up. And the last I heard at that time she was in California or Florida; it could have been Florida.” (emphasis supplied.)

During Mrs. Barger’s testimony, she stated:

“Q Can you remember whether she contacted or wrote to the children? A Well, that is what I was trying to tell you. There was mail that came to the post office under the name of Minks, and we refused it and didn’t take it; it went back. I don’t know who it went back to, who sent it.
“Q When was that? A That was several times. I can’t remember the dates. It came ‘Miss Shayne Minks’ and ‘Miss Charlotte Minks’, and we were asked at the post office about it. And you know South Lyons is a small town forty miles out of Detroit. And the children were going to school and Church — ”
“Q And there was some mail or some presents that came to them addressed as Minks? A I don’t know about presents or mail, but there was boxes that came, but the postmistress said, ‘Did they want to take any mail or parcels addressed under the name of Minks?’ And I said, and my husband said too, he told me that, ‘If any mail comes under that name, just send it back.’ ”

The petitioners moved from Michigan to St. Louis, Missouri in 1961 because of Mr. Barger’s employment and while here, the respondent took the children from the Barger home in St. Louis to her home in Jefferson County, Missouri, and this proceeding followed.

Petitioners cannot be sustained in the contention that this court is without jurisdiction in this matter. Attacks upon judgments of sister states are well recognized if they are based on the grounds: (1) lack of jurisdiction on the subject matter; (2) failure to give due notice to defend; and (3) fraud in the procurement of the judgment. In re Ogle E. Veach, 365 Mo. 776, 287 S.W.2d 753; Gibson v. Epps, Mo.App., 352 S.W.2d 45; Wood v. Wood, 241 Mo.App. 367, 231 S.W.2d 882. Moreover the attack in this state can be maintained even if the foreign judgment recites therein the finding of all the jurisdictional facts required by the law of the other state. Kilbourn v. Kilbourn et al., 354 Mo. 17, 190 S.W.2d 206.

Cognizant that the allegations of fraud upon the part of petitioners in the procurement of the adoption decree, as set forth in respondent’s return and as set forth later herein, would require that testimony be taken, this court certified this case to the juvenile division of the Circuit Court of St. Louis City, Missouri, Honorable David McMullan, Judge, for hearing on all the issues raised by the pleadings and for a report to this court containing the recommendations of that court and the findings of fact and conclusions of law supporting such recommendations. That report containing his recommendations, findings of fact and conclusions of law has been filed with us. The petitioners then filed a “Motion for Adjudication” together with the “Separate Objection of Petitioners to Proceedings Previously Held” and their “Exceptions to the Report of Referee.” The first pleading is really a motion for judgment oft the pleadings and, since it goes to the merits of this proceeding, will be dealt with later herein. The second motion named above sets forth the petitioners’ objections, carefully preserved throughout this proceeding, to the order of this court certifying this case to the juvenile division of the Circuit Court for hearing and report as above stated. These objections have no merit. This court’s procedure in referring this case to Judge McMullan is clearly with the provisions of Sec. 211.040 RSMo 1959, V.A.M.S. (Laws of Missouri, 1957, p. 646) . The last sentence of that section specifically authorizes the action taken by this court in that it provides “Such questions, however, may be certified by another court to the juvenile court for hearing, determination or recommendation.” Attention should also be called to the fact that the report of the Honorable Judge of the juvenile division of the Circuit Court is a recommendation as called for in our order of certification and as authorized by Sec. 211.040, supra, and we are not bound by his findings or conclusions of law, the entire matter being for our ultimate decision.

This cause was submitted upon the “Exceptions to the Report of Referee.” Again in these exceptions the referral to the juvenile division of the Circuit Court with the resultant hearing and receipt of evidence by that court and the petitioners’ contentions that this court lacks jurisdiction were made but what has been held above disposes of those contentions. The exceptions to the report also urge as erroneous the finding that failure to enter a new petition before hearing and issuance of the order of permanent custody constituted non-compliance with the Michigan statutes and thus the Michigan court had no jurisdiction to enter the adoption decree but under the decision reached herein, we need not rule that point. The exceptions upon which the case turns is to the .finding that there was a failure of due process of law.

The petitioners rely solely upon the validity of the Michigan adoption decree. The respondent attacks that decree in her return upon multiple grounds that may fairly be grouped and summarized as follows: failure of due process; fraud in the procurement of the decree; failure to file a proper petition for award of permanent custody; and failure to serve the Circuit Court of St. Francois County.

The respondent’s contentions with regard to a lack of due process are based upon Sec. 27.3178 (598.20), Michigan Statutes Annotated, Comp.Laws 1948, § 712A.20, which reads as follows:

“Order of disposition to state nature of custody; change of custody from temporary to permanent, hearing; permanent custody, termination of parental rights, reinstatement.] Sec. 20. The court in all cases involving custody shall state in the order for disposition or any supplemental order of disposition whether the child is placed in the temporary or permanent custody of the court. If the child is placed in the temporary custody of the court, no supplemental order of disposition providing permanent custody, or containing any other order of disposition shall be made except at a hearing pursuant to issuance of summons or notice as provided in sections 12 and 13 of this chapter. If the child is placed in the permanent custody of the court, all parental rights are terminated, though such rights may be reinstated by a supplemental order of disposition.”

It cannot be denied that the rights of the natural parents of children are subject to regulation by the state and that if these rights come into conflict with the paramount interests of the child, it is within power of the state, by legislation, to separate children from their parents when the interests of the children and the welfare of the state require it. However, the existence of this right in the state does not mean that the law has abandoned its traditional regard for the maintenance, whenever feasible, of the natural parent-child •relationship. Neither does it mean that a court may decree the termination of parental rights without notice to that parent for to do so would not only be contrary to all principles and traditions of justice as we know it but would also be in violation of the due process clause of Art. 14, Sec. 1 of the Constitution of the United States; Art. II, Sec. 16, Constitution of Michigan 1908; and Art. I, Sec. 10, Constitution of Missouri, V.A.M.S.; Child Saving Institute v. Knobel, 327 Mo. 609, 37 S.W.2d 920, 76 A.L.R. 1068; and see the opinion of the Attorney General of Michigan, May 23, 1945. The order making these children permanent wards of the Michigan court recites “ * * * and due notice thereof having been given as required by law * * * ” However, one of the things that the existence of this right in the state can mean is that, proper circumstances being present and following proper procedure, the consent of the natural parent, such as respondent in the instant case, may be dispensed with and the state, acting through a person or an agency designated by statute, may enter its consent to the adoption. Thus it is that Sec. 27.3178 (598.20), as set out supra herein, provides for the termination of all parental rights by an order placing the child in the permanent custody of the court, and thus it is that Sec. 27.3178 (543), subd. b, Michigan Statutes Annotated, Comp.Laws 1948, § 710.3, subd. b, provides that the juvenile division of the probate court “ * * * having permanent custody of the child shall enter an order consenting to said adoption * *

Sec. 27.3178 (598.20), supra, specifically requires “ * * * a hearing pursuant to issuance of summons or notice as provided in sections 12 and 13 of this chapter.” The “section 13” referred to therein is Sec. 27.3178 (598.13), Michigan Statutes Annotated, Comp.Laws 1948, § 712A.13, which in its pertinent provisions requires the judge to find “ * * * that it is impractical to serve personally * * * ” the summons or notice then he may order publication which “ * * * is made once in some newspaper printed and circulated in the county in which said court is located at least one week before the time fixed * * * ” for the hearing. The order of publication contains the Michigan court’s finding that it is impractical to serve the respondent personally and there is no contention made that the publication was not within the limitations of time set forth in the statute. The respondent’s contention in this regard is that the consent to the. adoption entered by the Michigan court was entered improperly, the court’s action in terminating the parental rights, upon which the authority of the court to consent is based, being in violation of the due process clause of Art. 14, Sec. 1 of the United States Constitution and Art. 1, Sec. 10 of the Constitution of Missouri, and Art. II, Sec. 16 of the Constitution of Michigan 1908. In particular it is contended that “neither the petition nor summons nor published notice contained any notice that it was contemplated or intended to make said children wards, temporary or permanent, of said court, or to make them wards * * for the purpose of consenting to an adoption.” The importance of the consent and the termination of parental rights upon which it is based is obvious but is made doubly so by the repetitious reference to those orders made in the later orders of the Michigan court. For example, the consent to the adoption filed by the Michigan court in the instant case recites that “ * * * an order was entered in the Juvenile Division of this Court, * * *, placing the above-named child in the permanent custody of the Court and making the said child available for adoption; * * *” and the “Order of Adoption — Immediate Confirmation” signed by that court recites that the “Consent to said adoption having been duly and legally filed * * * in accordance with the statute in such case made and provided * * * ” (emphasis supplied) and also that “An order of this Court having been duly enteied on the 19th day of November, 1959 terminating the parental rights of the natural parents * * * ” (emphasis supplied).

It is immediately to be noted that neither the federal nor state constitutions attempt to define “due process of law” or to state what that clause includes ’and excludes. In this state, the phrase has been held to be equivalent to the phrase “per leqem terrae” as used in the Magna Charta, Lowry v. Rainwater, 70 Mo. 152 at 156—157. In Michigan, it has been held that the phrase is not susceptible of exact and comprehensive definition. Sipes v. McGhee, 316 Mich. 614, 25 N.W.2d 638 at [14] p. 643, reversed on other grounds, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. In his argument in Dartmouth College v. Woodward, 4 Wheat. (U.S.) 518, 4 L.Ed. 629, Daniel Webster defined it as including a hearing which proceeds upon inquiry and in which judgment is rendered only after trial. Cooley defined it as meaning “such an exertion of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” See State v. Jones, 306 Mo. 437, 268 SW. 83 at 86. In that same case, the court quoted with approval from Wilcox v. Phillips, 260 Mo. 664, 169 S.W. 55,- that “The correct interpretation is that the term was intended to perpetuate old and well-established principles of right and justice by securing them from abrogation or violation.” It is from these “old and well-established principles of right and justice” and from the realization that notice and an opportunity to be heard are of little value if one is not informed by the notice of the nature of the proceeding and what is thereby sought to be done, that it has become recognized that due process of law is not satisfied unless the notice given is sufficient to make it reasonably probable that the party proceeded against would be apprised of what is going on and given an opportunity to defend. Hill v. Persons Claiming Any Interest In or Lien Upon Certain Real Property, 329 Mich. 683, 46 N.W.2d 584, and see also Legal Record Pub. Co. v. Auditor General, 281 Mich. 578, 275 N.W. 498. In the Hill case cited above and in State ex rel. Anderson v. Becker, 326 Mo. 1193, 34 S.W.2d 27 at [2, 4] p. 29, it was held that the contents of the notice must be such as to inform the one it is directed to of the nature of the proceedings and of the relief sought. In this regard, the published notice recites that:

“Petition having been filed in this Court alleging that the present whereabouts of the parents of said minor children are unknown, and said children are dependent upon the public for support, and that said children should be placed under the jurisdiction of the Court.”

The published notice contains not one word or phrase that in any way informs the respondent or can reasonably be held to infer or cause inquiry that any order of permanent custody or any termination of parental rights was contemplated at the hearing called for in the notice. It is to be remembered that this respondent had received one petition and had appeared at a hearing thereon where these children were made temporary wards of the Michigan court. The allegations of the published notice, as set forth above, are in reality but a short restatement of the essential allegations of the petition which she received ⅛ that proceeding. Moreover, as the excerpts from the testimony at the first hearing of November 21, 1957, illustrate, the major emphasis at that hearing was again and again placed upon the temporary nature of the court’s order. As a matter of fact, the Michigan court itself stated at that hearing and in her presence that the respondent had “ * * * primary right to her children.” Again and again the court spoke of leaving the children with the petitioners for the present school semester and that the children should “ * * * stay this year and next with the grandparents * * * ” There is nothing in that entire proceeding that would in any way lead the respondent to believe that any action would ever be taken other than that which was done, i.e., make the children temporary wards of the court. In view of these facts, the allegations of the published notice would be especially meaningless to the respondent and even more completely than under other circumstances lead her to believe that nothing was involved over and above a continuation of that which had already been done.

Moreover, in determining whether a form of notice meets the requirements of procedural due process, the general circumstances surrounding the case, such as the type of proceedings involved, the purpose of the statute under which they are instituted, the character of the relief sought and similar factors are available for our consideration. In re Certain Moneys in Possession and Custody of Union Trust Co. of Pittsburg, Pa., 359 Pa. 363, 59 A.2d 154. That the Michigan legislature is zealous of the sacred relationship a parent bears to a child is abundantly illustrated by the care with which it spelled out the requirements of a second hearing before a temporary ward could be made a permanent ward of the court and the regard it illustrated for the rights of the natural parent by specifically requiring summons or notice in the event of a supplemental order providing permanent custody and terminating parental rights. To approve of a notice in this form would negate all the care with which that legislature drew this statute and result in a disregard for the preservation of a relationship which all courts have again and again stated it was their purpose, and the purpose of the laws they administer, to foster and protect against all attacks except those in which there has been a clear and cogent showing that every reasonable safeguard of that relationship has been complied with and overcome.

The respondent also vigorously presses her contentions with regard to fraud in the procurement of the Michigan decree. The allegations of the first petition filed on November 21, 1957, and leading to the Michigan court’s action making the children temporary wards of that court was, among other things, that * * * she (the respondent) has also failed to show any interest in their welfare and well being * * * ” This petition was verified as required by Sec. 27.3178 (598.11), Michigan Statutes Annotated, Comp.Laws 1948, § 712A.11. This allegation was knowingly fraudulent. The respondent’s counsel secured a copy of a letter dated November 14, 1957 (just 7 days before the petition containing this allegation as to the disinterest of the respondent was filed) from the respondent to the petitioners. This copy has been certified by the register of the Michigan court as identical to the original in their file and is uncontradicted as to date or contents by the petitioners. In that letter, the respondent gave her address as 3414 South Jefferson in St. Louis and thus, since the petitioner Barger contended throughout the proceedings that the only address he knew of for respondent was at 6600 Alabama, it appears that this is the source of the knowledge which allowed the Michigan court to send notice to her at that address of the proceedings of November 21, 1957. Respondent makes clear in this letter that she intended to bring her children home with her. Also proving the fraudulent nature of the petitioners’ allegations was the petitioners’ own evidence, as given before the special commissioner in this case, was that what caused the filing of this petition was the respondent’s action in contacting the Bargers and stating she would be up to get the children. As the petitioner Mr. Barger put it: “ * * * she got an idea she wanted to come up and get the children and called us on the telephone and said she would be up in a couple weeks to get the children * * ” In spite of these clear expressions by the respondent of her interest in her children’s welfare and well being and the undenied knowledge, as shown from this letter and from the testimony of the petitioner Mr. Barger, of her interest, the petitioners proceeded to file a petition in which they denied such interest and to verify that petition.

Moreover, the petitioner Mrs. Barger testified that there had been mail at the post office addressed to these children in their then legal name and that she was told by her husband to refuse this mail and did so. While the dates of such occurrences of refusal of mail are not clearly stated in the evidence, a fair inference from the testimony is that these refusals took place prior to the filing of this first petition on November 21, 1957, and thus would also show the falsity of the allegation in the petition. If these refusals were not made at that time, they must have taken place after the first proceeding. In that event, the testimony given by the petitioners to the referee appointed by the Michigan court whereby the petitioners denied any attempt by respondent to contact these children after the first proceeding and prior to October 13, 1959, was knowingly false. Under these circumstances, the fraud of the petitioners is clearly shown.

It is the holding of this court that petitioners’ “Motion for Adjudication” be denied and the “Separate Objection of Petitioners to Proceedings Previously Had” be overruled as are petitioners’ exceptions. The respondent’s attack upon the Michigan adoption decree based upon a lack of procedural due process and upon fraud must be sustained. This being so, and since there is no issue raised herein as to her fitness and since she is the mother of these children, the respondent is entitled to their custody and our writ should be quashed. Charlotte, who by our order has been in the temporary custody of the petitioners, pending the decision in this case, is now ordered from that custody to be delivered into the custody of her mother, the petitioners to comply with such order forthwith. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The writ of habeas corpus is quashed and Charlotte Barger is ordered delivered into the custody of her mother.

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

      . Now section 211.051.


source: Caselaw Access Project

author: STEWART, Chief Justice.

license: Public Domain

text:
    Daniel B. BOONE, Appellant, v. Marlow W. COOK et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.
    Henry A. Triplett, Louisville, for appellant.
    E. P. Sawyer, Jefferson County Atty., Cecil Davenport, First Asst. County Atty., Louisville, for appellee.
   STEWART, Chief Justice.

This is an appeal from a judgment of the Jefferson Circuit Court holding that the purchase of the steamboat “Avalon” by the Jefferson Fiscal Court, whose members are appellees herein, was proper under the authority granted that court by the statutes.

In May, 1962, the Jefferson Fiscal Court empowered Marlow W. Cook, judge of Jefferson County, to bid on the steamboat at a bankruptcy sale to be held at Cincinnati, Ohio. On May 24th Judge Cook, acting for the fiscal court, purchased the boat for $34,000, which money was paid out of the general fund of the county. On June 14, 1962, the fiscal court passed a resolution dedicating the boat as a county recreational facility.

On July 7, 1962, Daniel B. Boone, appellant herein, acting individually and as a representative of Jefferson County property owners, instituted this action seeking recovery for the county of the $34,000, either by sale of the boat or from the members of the fiscal court, on the ground that the purchase was illegal.

The trial court stated in a memorandum opinion that, under the provisions of KRS Chapter 58, the fiscal court had the authority to purchase the boat. KRS 58.010 through 58.140 provides that governmental agencies may acquire or develop public projects and “may” issue revenue bonds to defray the cost thereof. Subsections one and two of KRS 58.010 define a public project and a governmental agency as follows:

“(1) ‘Public Project’ means any lands, buildings, or structures, works or facilities suitable for and intended for use as public property for public purposes or suitable for and intended for use in the promotion of the public health, public welfare or the conservation of natural resources, including the planning of any such lands, buildings, structures, works or facilities, as well as improvements or additions to any such lands, buildings, structures, works or facilities.
“(3) ‘Governmental Agency’ means the Commonwealth of Kentucky as such acting by or through any department, instrumentality or agency thereof, or any county, city, agency or instrumentality or other political subdivision of the Commonwealth, or agency, or instrumentality thereof.”

It is contemplated the steamboat will be made available to church groups, schools and school children, fraternities and sororities, clubs, and for use of the general public for excursions up and down the Ohio River. It is intended that the auditorium on the boat, which seats 700 people, will be used by local stage groups, the Louisville Orchestra, youth orchestras, and community drama organizations for the presentation of programs.

Under KRS 97.020 any fiscal court may establish “a recreational system.” In the case of McKinney v. City of Owensboro, 305 Ky. 253, 203 S.W.2d 24, this Court ruled that auditoriums, swimming pools and gymnasiums constructed and operated for the public benefit were public projects within the meaning of KRS 58.010(1).

In Chrisman v. City of Cumberland Coach Lines, Ky., 249 S.W.2d 782, the question presented for determination was whether the acquisition of a bus line by the City of Cumberland to provide transportation under certain conditions was a public project within the contemplation of KRS 58.010(1). It was shown that the livelihood of a substantial number of the city’s citizens was dependent upon having bus service. This Court held that it was such a facility as had been recognized by the Legislature to be within the power of the local government to acquire and operate.

In Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80, it was held that the Legislative determination of what is a public purpose will not be interfered with by the courts, unless the judicial mind conceives it to be without a reasonable relation to the public interest or welfare.

It may be true that the fiscal court does not have the authority to purchase the steamboat, as appellant points out and the trial judge held, under any of the thirteen powers enumerated under KRS 67.080. However, since KRS Chapter 97 recognizes that the creation and maintenance of a recreational system by a fiscal court is a legitimate function of such a governmental unit, and since the steamboat under the facts presented must be held to be a public project, because it is shown its use for recreation will bestow a wide-spread benefit on the citizens of Jefferson County, we conclude the purchase was legal and authorized under the provisions of KRS 58.010(1).

Appellant next contends the purchase was void because it was not in compliance with KRS 68.170(1) as to asking for bids, which reads:

“The purchasing agent shall make all purchases of supplies, goods, wares and merchandise ordered by the fiscal court to be purchased for county purposes. Where the amount of the purchase exceeds $250.00, purchases shall be made on competitive bids from the lowest and best bidder, and the purchase shall be approved by the fiscal court.”

A steamboat does not fall within any of the classifications of commodities set forth in KRS 68.170(1). This statute was intended to require competitive bids only on articles which are sold and consumed generally, and may not be said to apply to a type of property that is rare and unique, such as a steamboat. Therefore, we do not believe the statute may be invoked in the case at bar to invalidate the purchase.

Wherefore, the judgment is affirmed.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. Charles Grant CRUTCHFIELD et al., Appellee.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., James J. Shannon, Jr., Dept, of Highways, Frankfort, for appellant.
    Marshall A. Dawson, Versailles, for ap-pellee.
   MOREMEN, Judge.

Appellee, Charles Crutchfield, an employee of the Department of Highways, was injured while in the course of his employment. He filed claim for benefits under the Workmen’s Compensation Act. A referee allowed total temporary disability from August 19, 1959 to April 1, 1960. On December 20, 1960, the full board, by order, adopted the opinion and recommendation of the referee. On January 9, 1961, ap-pellee filed an appeal from the order of the board.

Appellant, Department of Highways, by answer set up the defense that the appellee’s appeal was not filed within twenty days after the date of the hoard’s award and was not timely under KRS 342.285, and moved that the appeal be dismissed. The motion was overruled. The order of the full board entered December 20, 1960 was set aside and the case was remanded to the board for further proceedings. From that judgment this appeal is prosecuted.

Appellant first urges as a ground for reversal that the circuit court failed to acquire jurisdiction because the appeal was not perfected within the twenty day limitation of KIRS 342.285. Department of Highways v. Matney, 290 Ky. 440, 161 S.W.2d 617.

In cases of this nature the difficulty usually lies in the determination of whether or not the day of the act, from which the period of limitation begins to run, should be counted. In the past the rule was not too clear and in some instances the day of the act or event was included and, sometimes, as stated in § 681 of the old Civil Code, “If a certain number of days be required to intervene between two acts, the day of one only of the acts may be counted.” But a certain determination had been made in connection with appeals from awards by the Workmen’s Compensation Board. The computation was made under the rule that twenty days must include both the day the award was entered and the day the appeal was filed in the circuit court. Verda Harlan Coal Co. v. Harlan National Bank, 229 Ky. 565, 17 S.W.2d 718; and Webb v. Montgomery Ward & Co., 303 Ky. 152, 197 S.W.2d 90.

In this case the award was entered December 20, 1960. Perhaps this listing of dates will be graphic:

December 20, 21, 22, 23, 24 25, 26, 27, 28, 29, 30, 31, 1, 2, 3 4, 5, 6, 7, 8-(9) Filing Date.

So it is readily ascertainable that the last or twentieth day fell on Sunday, January 8, 1961. The fact that the final day fell on Sunday (under the old cases) did not add a day of grace. See Sandlick Coal Co. v. Hughes, Ky., 239 S.W.2d 258, where it was held that sub-section (2) of KRS 446.030 had no application.

The foregoing cases were decided before C R 6.01 became effective and when the terms of KRS 446.030 along with Civil Code, § 681 were the controlling statutes. They are cited in order to decide what impact the new rule has had upon that case law and upon the statutory provisions just mentioned.

C R 6.01 reads:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Sundays or holidays shall be excluded in the computation.”

We are not prepared to hold that KRS 446.030 was repealed or superseded by the Civil Rules but, as set out in C R 1, the rules now govern the procedure and practice in all courts of this state except where the procedure and practice are set out under special statutes — such as statutes relating to elections, election contests, taxes, et cetera. But KRS 446.030 is not a statute enacted for the purpose of outlining procedure in compensation cases alone; it is only a statute of general application. It does not create the right of appeal, therefore it is not a special statute which deals with appeals. The matter of appeal from a board to the circuit court is a strictly procedural matter and C R 6.01 should govern the method of computing time.

KRS 342.285 of the Workmen’s Compensation Act states that “either party may, within twenty days after the rendition of such final award or order of the hoard, by petition appeal to the circuit court”, and the proper computation of this twenty day period should be made under the procedural provision of C R 6.01. Applying this rule to the instant case we find that when December 20 — the date of the award — is eliminated, the filing on January 9 was within the twenty day period and additionally— although it is not necessary to invoke the rule in this case since January 8 was on Sunday — even if the first day is counted under the rule, the Sunday is not counted when it falls upon the last day of the period.

The circuit court was correct in overruling the motion to dismiss.

Appellant next contends the court erred in holding that there was no competent evidence of probative value to support the finding of the board and in remanding the case to the hoard for further consideration.

As noted above, compensation benefits were allowed only to April 1, 1960. Dr. Reed, claimant’s personal physician, testified on May 27, 1960, that appellee was a hundred per cent disabled until approximately April 1, and since that time he had suffered about fifty per cent incapacity. Dr. Reed had treated him the day before — on May 26. He gave a detailed description of the nature of appellee’s injury and condition. In addition, the claimant himself, his wife, and four neighbors testified as to the extent of his disability. All were in agreement that he was unable to work with any degree of satisfaction, if at all.

On the other hand the only medical testimony in the record was given by Dr. Thompson to whom appellee had been referred by Dr. Reed for special examination. Dr. Thompson had examined him on January 12, and once again on February 12, and was of opinion that he had fully recovered and was able to work. This opinion was based on x-ray examinations and objective findings. It will be noted that during the period after February 12 and up to the time of the taking of the depositions in the case, Dr. Thompson had no contact with the plaintiff. The circuit court was of opinion that this testimony was too uncertain and remote to be of substantial probative value in determining his present condition and there was no evidence to contradict or overcome the showing that on May 26 or May 27, the plaintiff was impaired, at least fifty per cent, in his ability to work. We are of the same opinion and though we do not believe the suggestion of the circuit court that he was disabled to the extent of at least fifty per cent will be binding upon the board, it seems certain that appellee was disabled after April 1, 1960, and the board should re-examine the case.

The judgment is therefore affirmed.


author: PALMORE, Judge.

text:
    Earle V. POWELL, Commissioner, Appellant, v. Verna BLEVINS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.

      Paul E. Tierney, Forest Smith, Dept, of Economic Security, for appellant.
    J. L. Lewis, Paintsville, for appellee.
   PALMORE, Judge.

This case is before us on the appellee’s motion to dismiss the appeal because the record was not filed with this court within 60 days from the date the notice of appeal was filed, nor was an order for extension made before expiration of that period. CR 73.08.

The 60-day period following the notice of appeal ended on October 15, 1962. Meanwhile, the circuit court clerk had informed counsel for appellant that the record could not be prepared in time, and on October 8 counsel had prepared and mailed to the clerk an order extending the time, with instructions to have it signed within the original 60-day limit (as required by CR 73.08). Whether this tendered order was placed in the hands of the circuit judge on or before October 15 is not disclosed by the papers before us, but it is clear on the record that the signed order was filed with the circuit clerk on October 20, five days too late. Thereafter, on October 30, the following “Nunc Pro Tunc Order” was entered by the circuit court:

“A timely request having been filed for extension of time for the filing of the record on the appeal of the above styled case and this court having considered same and ordered the extension of time as requested and ordered same filed, and the date of the order was inadvertently entered by the Court as October 20, 1962, when in fact it should have been and was intended to have been dated as of October 10, 1962, and it is now ordered by the court that said order of extension of time for filing o£ the record herein shall be noted of record and treated as having been dated October 10, 1962; to which ruling of the court both parties except.”

CR 73.08 does not authorize the circuit court to extend the time for filing the record on appeal unless “its order for extension is made before the expiration of the period for filing as originally prescribed or as extended by a previous order, etc. (Emphasis added.) This requirement is mandatory. Cf. Clay, Kentucky Civil Rules, CR 73.08, Comments 3 and 5; Commonwealth v. Black, Ky.1959, 329 S.W.2d 192, 193.

An order becomes effective when it is entered by the circuit clerk in the manner directed by CR 58. Regardless of when it may have been signed or how it may be “dated,” it cannot be an order before it reaches the clerk. Therefore, in this case there was no order of extension “made before the expiration of the period for filing.”

It is contended, however, that the circuit court had the power to correct the oversight nunc pro tunc pursuant to CR 75.08, which provides that an erroneous or incomplete record may be corrected and “made to conform to the truth.” But what is the truth in this case ? That a signed order was timely filed with the circuit clerk and should have been, but for some reason was not, noted of record by the clerk? No. The truth (as we understand the record) is that somebody — judge, clerk, or counsel, one or all, but we do not know which— neglected to see that the order had been signed and returned to the clerk on or before October 15, 1962. In short, the truth is that the order was not timely and the appellant is out of court.

The rules provide for the correction of clerical errors, but the omission to have an order signed and delivered to the clerk was not a clerical error. Cf. Maslow Cooperage Corp. v. Jones, Ky.1958, 316 S.W.2d 860.

A circuit court has inherent power to enter orders nunc pro tunc, but such an order cannot do more than supply a record of something that was actually done at the time to which it is retroactive. Munsey v. Munsey, Ky.1957, 303 S.W.2d 257, 259. In fact, the general rule is that it must tie back to some tangible record made at the time. Mullins v. Miller Bros. Co., 1923, 199 Ky. 139, 250 S.W. 815. In no event can it he made to reflect something that did not happen. If a court has omitted to make an order it might or should have made, the omission cannot be covered nunc pro tunc. 37 Am.Jur. 514 (Motions, Rules, and Orders, § 30). See also Mohrmann v. Kob, 1943, 291 N.Y. 181, 51 N.E.2d 921, 149 A.L.R. 1274, and Mattfeld v. Nester, 1948, 226 Minn. 106, 32 N.W.2d 291, 3 A.L.R.2d 909, 922.

We have taken occasion to write an opinion in this instance in order to clarify any misunderstanding that may and evidently does exist with respect to signing or dating an order “as of” a time different from the day on which the signed document actually is lodged with the clerk for the “forthwith” notation directed by CR 58.

The appeal is dismissed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Petitioner, v. CIRCUIT COURT of the Commonwealth of Kentucky IN AND FOR the COUNTY OF BULLITT, Respondent.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.

      John B. Breckinridge, Atty. Gen., William A. Lamlcin, Jr., Asst. Atty. Gen., Frankfort, Charles Dant Kearns, Lyndon, for petitioner.
    Carroll & Carroll, Shepherdsville, J. D. Buckman, Jr., Frankfort, for respondent.
   STEWART, Chief Justice.

In the Bullitt Circuit Court in the condemnation case styled Commonwealth of Kentucky, Department of Highways v. Lucille Wood, a judgment in the amount of $5520 was returned against the Commonwealth (we shall so refer to the condemner) on July 24, 1962. A motion for a new trial was timely filed, was heard and was overruled in September, 1962. However, no order to that effect was entered until November 9, 1962. On November 28, 1962, the Commonwealth filed a notice of appeal and is taking, or has completed, the steps necessary to perfect that appeal to this Court.

Meantime, but the record does not disclose the exact date, the Bullitt Circuit Court caused execution to issue on the judgment and the execution was sent to the sheriff of Franklin County to be levied on property owned by the Commonwealth. When the Bullitt circuit judge, the Honorable William R. Gentry, refused to quash the execution when moved so to do, the Commonwealth filed this petition asking this Court to direct the Bullitt Circuit Court to withdraw, quash, and set aside the execution on the theory that it was erroneously obtained.

Since the Commonwealth had already deposited $2500, which was the amount of the Bullitt County Court judgment of date December 11, 1961, u.e execution was for only $3020.

In conformity with Rule 1.420(c) of the Court of Appeals, the Commonwealth having moved therefor, an ex parte temporary writ was granted which in effect stays any further action under the execution until the case is passed upon, as the verified petition indicated the Commonwealth might suffer immediate and irreparable injury before a hearing, if such provisional relief were withheld.

At the outset, the respondent raises the point that the writ must be denied for the reason that only a judicial entity is being proceeded against, that is, the Bullitt Circuit Court, whereas such an entity is incapable of any action except such as may be performed by and through its presiding judge, and, as is shown, that officer has not been made a party to this proceeding.

This position must be upheld and the writ therefore will not lie. This Court has held that an original proceeding, like the one under consideration, is in the nature of a personal action and the officer against whom the writ is sought must be sued by name. See James v. Judge of Jefferson Circuit Court, 265 Ky. 595, 97 S.W.2d 544.

Even though we must dismiss this proceeding under the circumstances, we believe, before doing so, we should answer the question which is at the core of this litigation, namely, whether the property of the Commonwealth may be levied upon by execution in order to satisfy a judgment debt secured against it. The request to direct that the execution be withdrawn, quashed and set aside is based upon the assumption that it should not have been issued against the Commonwealth. The precise issue has never been passed upon by this Court, and we are of the opinion that the question is of such importance generally that it should be settled.

It is argued by the respondent that the Commonwealth should be treated no differently from an ordinary debtor in respect to its judgment obligations, and that an execution, pursuant to the terms and conditions of KRS 426.030, may issue on a judgment entered against it, when ordered by the court, after the expiration of ten days from the rendition thereof. We are unable to agree with this contention.

It is the general doctrine that judgments against a state, in cases where it may be sued, should be considered to operate merely to liquidate and establish the debt of a claimant; and in the absence of an express provision otherwise, they cannot be enforced by the ordinary processes of law. See 81 C.J.S. States § 232, p. 1343. “Even though the rule as to immunity of a state is relaxed, the power of the courts ends when the judgment is rendered. Although the liability of the state has been judicially ascertained, the state is at liberty to determine for itself whether to pay the judgment or not, and execution cannot issue on a judgment against the state. Such statutes do not authorize a seizure of state property to satisfy judgments recovered, and only convey an implication that the legislature will recognize such judgments as final, and make provision for the satisfaction thereof.” See 49 Am.Jur., States, Territories, and Dependencies, sec. 104, pp. 319, 320.

This excerpt from 33 C.J.S. Executions § 35, p. 164, has this to say on the subject under consideration:

“It is considered general doctrine needing no statutory sanction that the land and property of the state or its agencies or political subdivisions is not subject to seizure under general execution in the absence of statute expressly granting such right, * * * and it has been said that, as a matter of public policy, general statutory provisions making property subject to execution are construed to apply only to the property of private persons and corporations, and not to that of public corporations or bodies politic.”

Our attention has been called to no statute, nor have we been able to find any, which authorizes property of the Commonwealth to be subjected to sale under execution. Furthermore, the purpose or capacity in which state property is held does not, so far as we have been able to ascertain, alter the rule that such property cannot be levied upon and sold, save and except as permitted by the Legislature.

The question then arises: How may a judgment debt against the Commonwealth be satisfied? It would seem that mandamus would lie against the Commissioner of Finance to cause the obligation to be audited and a warrant to be issued and, in turn, against the Treasurer to compel the payment of the warrant, unless the law under which the payment is to be made is unconstitutional. See 81 C.J.S. States § 232, p. 1343.

We deem it unnecessary, in the light of our holding, to resolve the question raised concerning the Commonwealth’s failure to execute a supersedeas bond. Also, the ex parte temporary writ is dissolved.

Wherefore, the writ is denied.


author: STANLEY, Commissioner.

text:
    WEBSTER COUNTY, Kentucky, Appellant, v. Damon A. VAUGHN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 7, 1962.
    As Modified on Denial of Rehearing March 15, 1963.

      Warren B. Miller, Dixon, Earle M. Nichols, Madisonville, for appellant.
    Damon A. Vaughn, Thomas L. Withers, Dixon, for appellee.
   STANLEY, Commissioner.

This is a companion of Webster County v. Nance, Ky., 362 S.W.2d 723. It is an action by Webster County to recover of Damon A. Vaughn, former county attorney, sums alleged to have been received by him in his official capacity in excess of $5,-000 a year for 1954 through 1957. The circuit court found that the appellee collected $12,151.48, $14,905.92, $11,791.85 and $14,210.49, respectively. Legitimate expenses would have to be deducted from these amounts to ascertain his net receipts. The major part of the fees Mr. Vaughn received came from Justice of the Peace R. T. Nance as costs exacted by him of traffic offenders. The circuit court found that Mr. Vaughn’s compensation had been fixed before the beginning of his term at $7,200 a year; that there had been a complete settlement and release of claims against him covering the year 1954, and that the county could not recover any of the illegal fees paid him by the magistrate. The result was that, eliminating these items of illegal collections, the county was not entitled to recover any sum because the bal-anee over expenses did not exceed $7,200 in any year.

As described in the opinion in his case, Justice Nance had collected a fee of $5.00 as costs for the county attorney from each of the many defendants and paid it to him. These sums aggregated $5,610, $8,620, $6,565 and $8,410 for the respective four years. The balance of total amounts received, as above stated, is made up of salary of $1,500 per year, relative small sums as fees from other magistrates, commissions on fines and forfeitures and on delinquent tax collections.

The statute, KRS 69.260(2), provides that when a fine of less than $25 is recovered in a magistrate’s court, the county attorney shall be allowed a fee of $5 to be taxed as costs. Another statute, KRS 455.040, provides that the magistrate shall give written notice to the county attorney of the time and place of a trial of a criminal case and that his presence is requested. KRS 64.-410(2) prescribes that no officer shall demand or receive any fee for services not actually rendered. It was admitted in this case that the county attorney was given no notice and was not present and did not take any part whatsoever in the prosecution of any of the cases before Justice Nance or perform any services in connection therewith. The trial court properly held-that Mr. Vaughn was not entitled to these fees, Funk v. Milliken, Ky., 317 S.W.2d 499, and that the payment to him was illegal. Upon the ground of illegality, for the reasons we have stated in the Nance case, the court was in error in holding that the county could not recover the fees. The county was entitled to recover fees of the county attorney. As in the Nance case, the action was confined to excessive compensation; but, as we have held in reversing that case (Webster County v. Nance, Ky., 362 S.W.2d 723), the county, if it so desires, may amend its complaint to include all illegal fees.

The complaint sought only to recover amounts in excess of $5,000, charged to have been the maximum compensation fixed by the fiscal court for the term beginning in January, 1954. Issues were raised as to whether an order of May 5, 1953, purporting to fix the maximum compensation of the county attorney, was timely made, and whether the maximum compensation had been, in fact, fixed at $7,200 rather than $5,000. This last issue was dependent upon whether a change had been wrongfully and illegally made in the order book of the fiscal court substituting $7,200 for $5,000.

The statute provides that the fiscal court shall fix the compensation of every county officer “not later than the first Monday in May in the year in which such officers are elected,” and that upon failure to do so the compensation shall be the same as that fixed for the preceding term. KRS 64.-530, 64.730. See Upton v. Whitley County, Ky., 256 S.W.2d 3. The fiscal court of Webster County met on May 5, 1953, which was the first Tuesday of the month. The question is the effect of having been one day too late according to the language of the statute.

It seems to us that it is too stringent an interpretation of the statute to invalidate the act of the fiscal court because it came one day later than the Act specifically provided. The purpose of the statute is to have salaries fixed before the election and the assumption of office on the first day of January following. There is no universal or inflexible rule by which directory provisions in statutes may in all circumstances be distinguished from those which are mandatory. Generally, the provision as to time is directory and not a limitation of authority. If there is a substantial compliance with the terms of the statute relating to time and mode so as to effectuate its purpose or accomplish the end and no harm results, the provision must be deemed directory and a slight variation, such as here existed, ought not to and does not invalidate the proceeding. McCreary v. Speer, 156 Ky. 783, 162 S.W. 99; Ewing v. Union Central Bank, 254 Ky. 623, 72 S.W.2d 4; Middleton’s Adm’x v. Middleton, 297 Ky. 109, 179 S.W.2d 227. The order cannot be invalidated on this account.

The order of the fiscal court of May 5, 1953, dealt with a number of matters, particularly with the salaries of the county officers for the terms which should begin on January 4, 1954. The order definitely fixed the salary of the county attorney, payable by the county as $1,500 and “that his compensation as such county attorney be limited to $7,200 per year from salary and fees.” The county has maintained in this suit that the limitation was actually fixed at $5,000 and that that figure was erased and $7,200 written in. The photostat before us sustains the testimony that an erasure had been made before the $7,200 figure was typed. It also shows other erasures and new figures which have no relation to the present suit. A handwriting expert gave vivid demonstrative testimony that such change was made. It appears that the minutes — rather roughly made — do not reveal that the matter of salaries of the county officers was brought up before the county court. But the signed order is clear and definite and must be regarded as controlling. There is no evidence as to when or by whom the erasure and substitution, if any, were made. For aught that appears there was mere error and correction by the typist. Mr. Vaughn did not testify, and his silence is pointed out as creating a presumption against him.

The subsequent procedures and actions of the fiscal court treated the maximum salary as having been set at $7,200. The trial court inspected the original order book and found from that examination and the inferences that the maximum was originally fixed at $7,200. We cannot say his finding is clearly erroneous. CR 52.01.

As stated, the trial conrt sustained the defense that the fiscal court had accepted the payment of $1,398.34 in full settlement of all claims to excess fees for the year 1954. .

The fiscal court, by order of December 4, 1956, referred to. an itemized statement of receipts and disbursements which the county attorney had submitted to it and recited that the court had accepted and approved the same. It ordered that in consideration of the payment of $1,398.34 to the treasurer, the county released any claim it “may have against said Vaughn on account of excess fees which were collected by him” during the year, and that the claim “is hereby compromised and settled and the said Vaughn released from all claims the county has or may have against him for excess fees received during said period.” The county attorney had received from Justice of the Peace Nance fees amounting to $5,610 in that year. It appears the receipts were regarded as legal and that the sum entered into the settlement. It was stipulated in the case that the claim “was then and there unliquidated and in dispute.”

The appellant argues the settlement is not binding upon the county because, as a matter of fact, the sum owing at the time was $516.20 more than stated in the settlement filed by the county attorney. The cases relied upon by the appellant involve merely the acceptance of statements of amounts owed by public officers. Among them are Commonwealth v. Nunnelley, 211 Ky. 409, 277 S.W. 506; Goodlet v. Anderson County, 267 Ky. 166, 101 S.W.2d 421.

The settlement of a controversy between knowledgeable parties as to an unliquidated claim ordinarily bars the recovery of the remainder of the claim which subsequent events show that one of the parties may have been liable for. Ordinarily the compromise and settlement would be conclusive and binding upon the county. Shipp v. Rodes, 219 Ky. 349, 293 S.W. 543; Roberts v. Fiscal Court of McLean County, 244 Ky. 596, 51 S.W.2d 897; Steele v. Taylor, 272 Ky. 11, 113 S.W.2d 423.

But we have here the inclusion in the account of fees illegally paid to the officer, and at least a gross misapprehension of the law which entered into the settlement. The county attorney was the legal advisor of the fiscal court and knew, or should have known, he had collected fees he was not entitled to under the law. The compromise suggests that the parties were not dealing at arm’s length. The statutes were clear that this much of the claim of the county attorney and agreed to by the fiscal court was illegal. It was written in 1846 that a fraud or mistake made by the officer of a regiment in a settlement with a paymaster could be inquired into on the trial of the paymaster for a supposed delinquency. Fox v. Miller, 46 Ky. 125, 7 B.Mon. 125. A compromise settlement by a sheriff with a county, based on a mutual mistake, whether of fact or law, has several times been opened up for correction. Titus v. Rochester German Ins. Co., 97 Ky. 567, 31 S.W. 127, 28 L.R.A. 478, 53 Am.St.Rep. 426; Cheek v. Commonwealth Life Ins. Co., 277 Ky. 677, 126 S.W.2d 1084; Alexander v. Owen County, 136 Ky. 420, 124 S.W. 386; Creson v. Carmody, 310 Ky. 861, 222 S.W.2d 935; Burchett v. Leslie, Ky., 311 S.W.2d 551.

In treating the effect of official compromises or settlements it is said in 43 Am. Jut., Public Officers, § 324, that “there is not the same conclusiveness which attaches to the settlement of accounts and financial matters between individuals,” and if officers by mistake or otherwise wrongfully retain public money in their hands, they may be proceeded against upon discovery of the facts at any time within the statutory period of limitations. It is further stated in that section that where an official settlement is beyond the lawful authority or capacity of the parties, it is to that extent void. In note 103 A.L.R. 1071 it is said: “If a compromise agreement or release of liability exceeds the lawful authority or capacity of the parties, it may be set aside.” In many of our cases of compromise and settlement with public officials the disputes related to the amounts collected or expenses or credits to which the officers were entitled. In this case the illegally collected fees could not be transformed into legal fees merely by the belief of the parties. A compromise may not be founded upon a baseless and inherently illegal and void consideration. 11 Am.Jur., Compromise and Settlement, §§ 7, 8.

We are of opinion the trial court was in error in holding the 1954 settlement binding on the county.

The judgment is reversed and case remanded for proceedings not inconsistent with the opinion.

Reversed.

PALMORE, J., not sitting.

      . It is fair to say that until the Punk case was decided in June, 1958, there had been no interpretation of the statutes that a county attorney was not entitled to receive the fees from justices of the peace unless lie rendered actual service in tbe cases. Tbe contrary was assumed until that time, not only in Webster but other counties as well.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. CITIZENS ICE & FUEL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 15, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hunley, Dept, of Highways, for appellant.
    Glen H. Stephens, W. L. Rose, Williams-burg, for appellee.
   PALMORE, Judge.

This is a highway condemnation case. The Commonwealth’s appeals in the two Mahan cases (tracts 78 and 78-B) having been dismissed on motion, our consideration here is limited to the Citizens Ice and Fuel Company case (tract 78-A).

Appropriately, appellee cites Whallen’s Ex’rs v. Moore, 1933, 248 Ky. 348, 58 S.W.2d 601, 602, for a correct statement of the principles applicable to the granting of a new trial. Omitting citations therein, the complete quotation is as follows:

“The trial court is vested with a large discretion when passing upon a motion for a new trial, and, unless that discretion is abused, this court will not interfere, and it is more reluctant to set aside a judgment granting, than one refusing, a new trial. * * * But, where the verdict is warranted by the evidence and no error appears in the record, an order granting a new trial on erroneous grounds will not be sustained.”

In this case the granting of a new trial did not rest upon error committed in the course of the first trial, but upon the alleged insufficiency of the evidence to support the smallness of compensation and damages awarded by the jury.

When there have been errors or defects in the course of a trial, there may be good reason to place special reliance on the discretion of the trial court in determining whether they had a substantial and prejudicial effect. But the question of whether “the verdict is warranted by the evidence” is not, in our opinion, a matter of discretion. It must be weighed by the trial court according to the same standards by which it would be weighed in this court. If the verdict would be sustained on appeal it cannot be set aside in the trial court. We look, therefore, to the sufficiency of the evidence to warrant the first verdict in this case.

Two valuation witnesses for the state appraised the right-of-way strip taken at $432 and $540, respectively. Four witnesses for the ice company valued it at $2000 to $3000, $4000, $5000, and $2500, respectively. The jury awarded $900. (At the second trial the verdict on this item was $1200.) Although the state’s appraisers did not reside or do business in Corbin, there is no serious doubt that they qualified as expert witnesses. Whether their testimony was entitled to more or less weight than that of their adversary witnesses was strictly for the jury to say. As to the bases of their estimates, though but two isolated instances of other sales in the area of Corbin were cited specifically, the transcript shows (particularly in the testimony of the witness Kinman) that these two comparisons were sifted out as the best examples from a review of several sales of various types of property, and that adjustments were made to compensate for dissimilarities. As suggested in Stewart v. Commonwealth, Ky.l960, 337 S.W.2d 880, exact comparability of properties is a rare circumstance at best. As a matter of fact, if the witness is qualified as an expert on real estate valuation and values, we do not think it must always be an absolute sine qua non to either the admissibility or sufficiency of his opinion that it be supported by comparable sales. It sometimes occurs that there simply are not any comparable sales to be found, and in this case the testimony of witnesses for the ice company reveals that their own opinions suffered from the same dearth of comparative support as did that of the state’s witnesses.

Unlike the lay witness, an expert valuation witness need not be (and frequently is not) acquainted first hand with real estate values in the vicinity of the property to which his testimony refers. A person skilled in the techniques of professional appraisal work has no trouble learning property values in any community to which he may be called. The admissibility and weight of his opinion depend on his background and experience and how thorough an investigation he has made. Once he has established his professional qualifications and testifies that he has made a sufficient study of the real estate market in the community to form an opinion as to the market value of the property in question, and has viewed the property, then we think his opinion will support a verdict unless it is patently extravagant or unless in the process of examination or cross-examination it is shown that in fact he has not made a sufficient canvass of the local market to justify an opinion, or that he has not seen the property.

Each of the two professional appraisers for the state testified that he had made a study or investigation of real estate values in the vicinity of the property under discussion, had examined it, and had an opinion as to its market value. Each had appraised property in Corbin on one or more previous occasions. Each had reviewed a list of sales prepared by other personnel of the Highway Department, and both were of the opinion that the two sales herein-before mentioned were sufficiently comparable as further and specific support for their estimates. Under these circumstances, it is our conclusion that their testimony had enough probative value to support the verdict of but $900 for the right-of-way strip.

The two witnesses for the state testified that there would be no damage to the remaining property except by reason of the increased elevation of the highway, varying from 2½ feet at the north end to 1½ feet at the south end of the ice plant lot. Each of them equated the resulting loss in market value in terms of what it would cost to fill in and contour the property up to grade level. The witness Workman estimated this cost at $1000, and the witness Kinman at $1200. Neither of them was cross-examined as to exactly how he computed this cost. The jury awarded $1500. (At the second trial the verdict on this item was $3700.)

One of the witnesses for the landowner was a general contractor, who estimated the cost of filling at $2500 for 1,000 cubic yards of dirt. It is to be noted, however, that these figures were made up in contemplation of leveling the entire area between the right-of-way and the ice plant building, whereas the witnesses for the state based their testimony on a partial fill, sufficient only to eliminate the abrupt incline to the new level of the roadway. Moreover, it is undisputed that a substantial portion of the area between the building and the road was already slightly lower than the level of the road before its reconstruction. When these differences are considered, the cleavage between the conflicting estimates does not appear to be great, and in the absence of cross-examination designed to probe the manner in which the two witnesses for the state arrived at their figures we do not think it can properly be assumed that they did not know what they were talking about. On the contrary, it is to be presumed that experienced state highway department appraisers working exclusively on problems of this very nature would be well qualified to provide this type of estimate. Therefore, it is our opinion that their testimony had sufficient probative value to sustain the verdict on this item as well.

Witnesses for the ice company gave estimates of damage to the remainder running as high as $50,000 or more, resulting, in their opinions, from two salient circumstances in addition to the cost-of-fill item ■discussed above. One of these was that it would be necessary to fill the area from the road to the building, which in turn would require a costly project in the form of elevating the loading platforms at the front end of the ice plant. The other was that the increased proximity of the right-of-way line, and especially the presence of proposed rampways entering down into the property from the road, would so reduce the operating room for trucks and trailers in front of the ice plant that its efficiency and value would be substantially impaired. In the opinion of the state’s witnesses neither of these two possibilities would result, and again we must say that the jurors were authorized by the evidence to adopt that viewpoint if they saw fit to do so, which apparently they did.

The theory of the highway department, as we understand the record, was that if the ice company preferred not to have the two ramps it could lay a drain pipe in the ditch and fill in the space between them, making in effect one continuous ramp from one end to the other in front of the ice plant building. Certainly if this were done there would be no necessity to raise the loading platforms, nor would the presence of the ramp or ramps limit the operating space between the road and the ice plant.

In granting a new trial the court considered the problem of maintaining the proposed ramps, and was of the opinion that the evidence in that respect was unsatisfactory. It was, in fact, non-existent. As a matter of law, the state would not be obliged to maintain them, but whatever possibilities of future trouble and expense may flow from that circumstance were up to the landowner to develop in the course of the trial. Its failure to do so did not justify consideration of the question by the trial court on its own initiative.

The remaining item in the verdict was $100 awarded for a temporary easement. The same amount was awarded at the second trial, and it is not in dispute.

The judgment is reversed with directions that the second verdict be set aside, the first verdict reinstated, and a new judgment entered accordingly.

      . This information was elicited on cross-examination by counsel for the landowner. See Stewart v. Commonwealth, Ky.1960, 337 S.W.2d 880, 885, as to admissibility of appraisals based on hearsay information pertaining to sale prices.


author: GRIFFIN, Justice.

text:
    TEXAS & N. O. RAILROAD CO., Petitioner, v. Tony Allen LEMKE et al., Respondents.
    No. A-9022.
    Supreme Court of Texas. Houston.
    Feb. 6, 1963.
    Rehearing Denied March 13, 1963.
    Baker, Botts, Shepherd & Coates, Houston (John F. Heard, Houston, with firm), for petitioner.
    Pollan & Nicholson, Rosenberg, Hill, Brown, Kronzer & Abraham, Houston, for respondents.
   GRIFFIN, Justice.

This is a suit by the legally authorized guardian of Tony Allen Lemke and Richard Roy Lemke against the Texas & New Orleans Railroad Company, as defendant, to recover damages in excess of $100,000.00 resulting from the death of plaintiffs’ parents when the automobile in which the parents were riding was struck by a thirteen-car passenger train pulled by a three diesel unit locomotive and traveling in a westerly direction at a road crossing about one and one-half miles west of Sugarland, Texas.

In a trial before a jury, all special issues covering primary negligence and two contributory negligence issues were answered in favor of the defendant railroad.

On the discovered peril issue, it was stipulated by the parties that plaintiffs and their parents were in a position of peril prior to the collision. The jury found that the engine crew discovered the perilous position of the Lemke automobile and after making the discovery, realized that the driver of the car in all reasonable probability would not be able to extricate herself and her car from such perilous position. On the crucial “time” issue the jury found that the engine crew did not actually discover and realize the perilous position of the Lemke car and its occupants before the collision within the time and distance that by the exercise of ordinary care and the use of all means at hand the collision between the train and the car could have been avoided.

The trial court rendered judgment for defendant on the jury verdict. The plaintiffs appealed to the Court of Civil Appeals. The errors alleged complained of the refusal of the trial court to admit in evidence, either generally or for the purpose of impeachment, the speed tape on appellee’s train, and the testimony of named witnesses. Plaintiffs claimed that such tape and testimony would have impeached the testimony of the ■defendant train employees that they did use all the means at their command during the time and distance interval between their •discovery and the collision to avoid the •collision.

The Court of Civil Appeals held the tape .admissible and reversed and remanded the cause. Lemke v. Texas & N. O. R. Co., Tex.Civ.App., 355 S.W.2d 748.

The defendant, as petitioner, here assigns .as error the holding of the Court of Civil Appeals that the speed tape and allied testimony were admissible in evidence and that a proper foundation had been laid as to the accuracy of the tape. We sustain this point .and reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The trial Judge, in refusing to admit the tape, said that the points- shown on the tape had not been correlated with any points ■on the ground, and that the point on the tape where the engineer had increased his •speed was not shown to be any definite point •on the ground, and that to admit the tape for the purpose of showing distancé would be “nothing but misleading and prejudicial in this case.”

No witness testified as to any point on •the tape representing any particular point on the groundl No' witness knew h'dw long .a time interval elapsed between acceleration ■or deceleration of speed and the change of’ •speed would be reflected by the. stylus. There were certain vertical lines one-half inch apart on the tape, which represented one mile or 5280 feet. This stylus and tape were operated by a device on a locomotive wheel, and the record or tracing on the tape was made by the revolutions of this wheel. In other words, a number of complete turns of this wheel were shown on the tape as one mile, but nothing on the tape showed where, on the ground, the mile started or ended. It was admitted by all parties that these vertical lines did not necessarily coincide with the marked mileposts on the ground.

The small scale of the tape was such that ½6th of an inch equalled 660 feet in distance and Vioth of an inch equalled 1056 feet in distance. The stylus mark or tracing shows to cover about 100 yards of distance. Plaintiffs made an enlarged copy, (about 7 to 1) which more clearly shows this fact.

There was no testimony as to the point on the ground in or near Houston, Texas, with which any of these vertical lines coincided. The same was true of the stopping place in San Antonio Texas, where it was testified the tape tracings ended.

There is testimony in the record that mileposts 24, 25 and 26 were in the vicinity of Sugarland, but there is no testimony as to the location of these mileposts either on the tape or on the ground, except the designation of certain mileposts by name and number. The engineer of the train involved in the collision was asked: “When.you go through Sugarland, as you come on the outskirts of Sugarland, you pass milepost 25 ?” He answered, “Yes.” All parties tried this case on the assumption that the accident happened .3 of a mile west of milepost 26, but no one ever put 'that spot, on the tape. It was .testified that these mileposts ■ represented distances from. Houston, but there was no point on the tape identified as the Houston starting point. There is a statement by one of the attorneys that the tape was installed on the engine in New Orleans, but no testimony to this effect. An examination of the tracing shows that it-was being made prior to Sugarland for many more than 26 vertical lines, or 26 miles, which would be prior to reaching- Houston. There is really no identification of Houston on the tape, but assuming the collision occurred 26.3 miles from Houston, there are three vertical lines in the vicinity of Sugarland and of this collision that would be 26.3 miles from three definite points where the tracing shows the train was going slowly and which we presume was in Houston. Further, the testimony shows the stylus does not operate at less than ten miles per hour, and the tape does not show distance traveled at less than ten miles per hour.

The same reasoning applies to the end of the tracing, which witnesses testified was in San Antonio. There was testimony that it was 211 miles from Houston to San Antonio (beginning and ending points not being located on the ground). If the collision occurred 26.3 miles from some point in Houston, it should be only 184.7 miles to the stopping point in San Antonio. Assuming it is 185 miles, which would be 185 vertical lines, we have counted the vertical lines from three different vertical lines in the Sugarland vicinity. The vertical line fartherest east as the train was entering Sugarland is 187 vertical lines, hence 187 miles from the end of the tape tracing. The vertical line which is 185 vertical lines or miles from the end of the tape tracing is at a point after the tape shows the train had sharply decelerated its speed.

The above analysis demonstrates the lack of any proof to correlate the tape markings with ground positions, or of its accuracy to show ground position.

Plaintiffs’ witness Shilstone, who was offered as an expert in reading the tape, testified that unless he took someone’s word for determining the distances on the tape it would be necessary that “there has to be a starting point that has to be agreed upon as being a fact.” He further testified that he had not gone back on the tape to determine where Houston was. In response to a question by the court, the witness testified that he did not make any calculation as to how far it was from the point the train started to increase its speed to the 26.3 milepost — the point of the collision. The witness further said that he had calculated only the distance shown on the tape between the beginning of the train’s accelerated speed and the point of deceleration. This had no relation to points on the ground, so far as this witness was concerned. He measured this distance as shown only by the tape tracings.

Plaintiffs say that they fixed the starting point of the accelerated speed on the ground at the last red light as the train was leaving Sugarland. This claim is made by virtue of the following question propounded to the engineer:

“And just before that (milepost 25) as you come through Sugarland and you pass that last red light at Sugarland and you kind of curve around, the fireman can look back and see the train, and that is the place where you start giving it (the engine) the gun?
“Yes, sir.
“And you go past the 26 milepost?
“Yes, sir.
“And this accident happened at 26.3 ?
“Yes, sir.”

By actual measurement, the last red light is 8114 feet prior to reaching the crossing. None of these objects referred to are shown on the tape or its enlargement. The tape shows that from the start of the accelerated speed to the start of the decelerated speed is 9027 feet. In other words, it-is claimed that the deceleration of speed started 913 feet past the crossing where the accident took place. The width of the stylus trace at the point of deceleration is approximately 283.85 feet, and the width of the stylus trace at the point of acceleration is approximately 170.3 feet. The total is thus 454.16-feet, margin of tolerance. There is no testimony as to the accuracy of this tape as a. measurement of distances shown in this-record. The engineer’s testimony is indefinite as to where he accelerated his speed. It is not definitely fixed as the red light, the curve or where.

Plaintiffs claim that the accuracy of the tape was shown when defendant had its witness Coogler refer to the tape to show the train speed. The tape was not offered in evidence by defendant and was shown to the witness Coogler for the purpose of testifying solely as to speed. Defendant made no attempt to show accuracy or approximate accuracy as to the distance measurements on the tape as correlated to points on the ground. The accuracy of the tape to show speed was not questioned. Neither was there any question as to the speed of the train at the time it started decelerating or accelerating its speed. The only questions were as to the point on the ground where these actions took place.

The trial Judge was careful in bringing out all the evidence showing accuracy of the tape as a measurement of distance and the correlation of the tape with locations on the ground. He ruled the tape inadmissible. The trial court committed no error in the refusal to admit the tape in evidence, either to show distance or impeachment •purposes.

Plaintiffs, who were seeking to have ■the tape admitted in evidence for the purpose of showing distance on the ground, had the burden of making the preliminary proof as to its accuracy and that it correctly portrayed the ground locations of the points of acceleration and deceleration. They failed to offer proof sufficient to satisfy the trial Judge. Under the facts as analyzed above, we cannot say that the trial Judge abused his discretion in not permitting the introduction of the tape in evidence.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

SMITH, J., dissenting.