author: J. P. MORGAN, Special Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Mike DeMARCO, Exceptions of Little Piney Oil Company et al., Appellants.
    No. 52791.
    Supreme Court of Missouri, Division 1.
    Jan. 8, 1968.

      Robert L. Hyder, Melvin Englehart, Jefferson City, for plaintiff-respondent.
    Weldon W. Moore, Rolla, for appellant Little Piney Oil Co., a Corporation.
    Eugene E. Northern, Rolla, for appellant W. L. Jaques and another.
   J. P. MORGAN, Special Judge.

Two landowners have joined in appealing from the result reached in this rather abortive condemnation action initiated by the State Highway Commission. We have jurisdiction as title to real estate is involved. Article V, Section 3, Constitution of Missouri.

Respondent’s motion to dismiss the appeal for failure of appellants to comply with Rule 83.05, V.A.M.R., is overruled and the case will be considered on its merits. The commission, as plaintiff herein, was involved in the establishment and construction of Interstate Highway 44, which in the immediate area of interest to the parties, replaced U. S. Highway 66 in Phelps County, Missouri. A brief outline of the steps taken by the commission in seeking to establish the right-of-way along defendants’ properties will suffice to make most of the questions raised readily apparent. On July 20, 1964, plaintiff filed a condemnation petition seeking to appropriate from Little Piney Oil Company, a corporation, approximately .19 acre of land and from W. L. Jaques and wife, .41 acre, more or less. On August 18, 1964, commissioners were duly appointed and their report filed September 10, 1964, reflected that Little Piney Oil Company was damaged in the sum of $15,025 and W. L. Jaques and wife were damaged in the amount of $4,575. Both landowners and the commission filed exceptions to the commissioners’ report. The awards were deposited with the clerk and subsequently drawn down by each of the defendants. It appears conceded that the commission took possession of the lands alleged to have been owned by defendants. Prior to any trial on the exceptions and on January 7, 1966, the commission filed separate motions requesting the petition be dismissed as to each of these defendants and asking an order that each be directed to refund their award to plaintiff. Each motion alleged that the commission had discovered on December 4, 1965, that the petition as to these defendants had been erroneously filed, because the land described as being that of Little Piney Oil Company, sought to be condemned, had already been acquired for highway purposes by a deed dated June 1, 1953, and that of Jaques and wife by a deed dated May 25, 1953. Attached to the motions as exhibits were the two deeds plaintiff contended included the same lands as described in the condemnation petition insofar as it pertained to these defendants. Little Piney Oil Company filed a response to this motion admitting that it had received the commissioners’ award of $15,025, but denied the land described in the petition, as to their portion of the lands involved, was the same land described in the deed attached to the motion as an exhibit, and further that plaintiff had failed to provide an outer roadway for access as had been reserved in the deed of 1953. In addition to this attack on the motion, after the hearing, Little Piney Oil Company was granted leave to amend its pleading to allege that through mistake and misunderstanding of all parties the land in question was included in the 1953 deed. Defendants Jaques and wife admitted receipt of the $4,575 and alleged, “* * * if said deed actually and in fact grants to the plaintiff the rights claimed by plaintiff, which these defendants deny that it does, that said deed was obtained by plaintiff through fraud and misrepresentation * * * ” An issue of title was created and the parties make no objection to the manner in which the issues were drawn. Murphy v. Barron, 286 Mo. 390, 228 S.W. 492(15).

The trial court heard the evidence on the conflicting claims and in December, 1966, found that the right-of-way easements in the lands of both defendants were vested in the plaintiff by the deeds of conveyance obtained in 1953, and that defendants had no legal claim to the monies paid and each was directed to pay the amount received into the registry of the court for the use and benefit of the State Highway Commission.

The evidence shows Little Piney Oil Company owns a tract of land abutting the south side of Interstate 44 about three miles east of Rolla on the west side of the intersection of 1-44 and Phelps County Route V. The frontage along 1-44 is approximately 302.24 feet with the depth varying from 135 feet on the east to 52 feet on the west. The tract is improved with a gasoline service station and may be reached by a 30 foot commercial entrance from a spur parallel to 1-44 extending from the interchange at the intersection of Route V and 1-44 approximately 1,800 feet to the east. W. L. Jaques and wife own a tract of land abutting the south side of the same spur and adjoining the Little Piney tract on the east. The Jaques’ frontage is approximately 142 feet with a depth of 175 feet on the east and 135 feet on the west. This tract is improved with a drive-in cafe and may be reached from the spur by a 50 foot double entrance across the common boundary between it and the Little Piney tract. At this location 1-44 has dual lanes of 24 feet each divided by a grassed median strip. At the intersection of Route V and 1-44 a crossover is provided for access to both the eastbound and westbound lanes of 1-44. The spur is a 20 foot bituminous surface roadway extending westerly from the interchange or crossover along the north side of the Jaques tract and ends at a metal barrier constructed across it approximately 125 feet east of the west boundary of Little Piney’s property. The contested area comprises a strip of land 40 feet wide extending along, parallel and adjacent to the north side of both tracts.

It is agreed Jaques and wife acquired the land in question in the spring of 1953 from Messrs. Woolrych and Strothkamp for the sum of $8,000 and at the time of the purchase were aware the commission was then engaged in land acquisition for converting Route 66 to a four lane limited access highway. Soon thereafter on May 25, 1953, in consideration of $2,600, they executed a deed to the state for the use of the commission conveying two separate and distinct tracts of land identified as Tracts 1 and 2. Nothing can be gained by setting out the extended description of Tract 1, but it is noted that the various station numbers are tied to and are identifiable with established section corners. State ex rel. Morton v. Allison, Mo., 365 S.W.2d 563. Tract 2 is described as: “A tract of land 40 feet in width and approximately 260 feet in length adjoining the right side of tract 1 above, extending 40 feet southerly from opposite station 1164+18 to opposite station 1166+78 containing 0.23 acres, more or less, of new right-of-way.” (The right side was established in the description of Tract 1 as the south side of the eastbound lane of 1-44.

A few days thereafter on June 1, 1953, the commission obtained a similar deed from adjoining owners, Edmund H. Woolrych and wife, which, as far as of interest here, included a similar description extending the 40 foot additional right-of-way along the north boundary of the instant parties’ land. Little Piney Oil Company is a successor owner by deed of August 1, 1956, and relies generally upon the evidence adduced by defendant Jaques.

Our review of this equity case is de novo and it is our province to weigh the evidence and reach our own conclusion as to its weight. State ex rel. State Highway Commission v. Schwabe, Mo., 335 S.W.2d 15. The commission, as movant, assumed the burden of establishing that all of the land sought to be condemned in this action had in fact been purchased by it in 1953. It called as a witness Mr. C. V. Mann, formerly County Surveyor, who testified that at the request of Mr. Jaques he surveyed the Jaques’ tract on July 18, 1953; that Mr. Jaques was present at the time and gave him the information from which he decided the north boundary line of the tract was 40 feet south of the south right-of-way line of Route 66, and further testified, “ * * * we all understood, and I understood, that there was still a — 40 feet here for the entry drive that didn’t belong to Mr. Jaques.”

Billy Rex Taylor, a graduate engineer and designer for the commission, testified that he had made the error which set the stage for this case; that he prepared the original design (Exhibit No. 4) for the construction of 1-44; that he made this plan from the original design plans of Route 66 and was not aware of the two deeds obtained in 1953 (Exhibits No. 1 and No. 2); that he then prepared a corrected or revised plan for 1-44 (Exhibit No. 3) showing the area described as Tract 2 in the 1953 deeds as right-of-way and agreed that this was the same area designated as “permanent easement” on Exhibit No. 7 (plan sheet of Route 66). Further inquiry was, “Can you tell the Court wherein the error was made in your first preparation of plans for 1-44, what was it you failed to show on it?” Answer: “It was a forty foot strip of land lying immediately south of the right-of-way line that we had originally shown on the plans. We found that there was a forty foot additional strip which should have been shown. It’s described as tract 2 in these two deeds * * * ”

John W. Elmore, Survey Party Chief for the commission, testified he was in charge when a new survey was made in 1966 after the error was discovered; that the south line of the 40 foot strip (Tract 2 in the 1953 deeds) was south of the south boundary line of the spur parallel to the eastbound lane of 1-44; and further, his response was “Yes” to the following inquiry: “Is it your testimony that the outer roadway was constructed within the land described ?”

For the defendants, Mr. Jaques testified he talked in 1953 to persons employed by the commission; that his primary concern was to find a business location with access as he knew Route 66 was to be made a limited access highway; that he saw the plans (Exhibit No. 7), and, after seeing the designation of an area as “permanent easement” adjoining his land, did at that time determine that it really meant “permanent entrance” to accommodate both east and westbound traffic; that he didn’t talk to a lawyer and only read that portion of the deed (Exhibit No. 2) pertaining to his reservation of access; that he had read some deeds in the past, but only had an 8th grade education; that between 1953 and the conversion of Route 66 to 1-44, he had erected signs on the strip of land in question and the local maintenance man refused to maintain the driveway because it was off the right-of-way.

The execution of the deed was not questioned and on the evidence as shown the landowners asked (1) they be allowed to keep the awards, (2) the deeds be declared void because the descriptions are indefinite and vague and (3) that the deeds be reformed to delete Tract No. 2 because its inclusion in the conveyance was the result of a mutual mistake. The first request is dependent upon the conclusions reached reference suggestions (2) and (3). We have already concluded as to (2) that the description was sufficient and approach suggestion (3) with the admonition that the burden is upon those seeking reformation of a deed to show by clear and convincing evidence that it did not express the true agreement of the parties by reason of their mutual mistake. Walters v. Tucker, Mo., 308 S.W.2d 673. We fail to find any evidence of a mistake on the part of the commission at the time the deeds were obtained, and we cannot justify relating the present mistake of failing to call the 1953 deeds to the attention of the designer of 1-44 back to the time of their execution several years earlier. Further, the record is not convincing that even a unilateral mistake was made by the grantors in 1953. Assuming, however, the deeds were the result of a mistake by defendants or their predecessors, relief would have to be denied because the mistake resulted “ * * * solely from the want of such care and diligence as are exercised by persons of reasonable prudence under the same circumstances.” 12 C.J.S. Cancellation of Instruments § 27b (3), p. 980; Douglass v. Douglass, Mo., 363 S.W.2d 566. The allegation of fraud has not been carried forward in their brief as there is no evidence whatever of any fact other than a “good faith error” by the commission.

The initial question was as declared to be in,the landowners’ brief: “That was the issue in this proceeding and the only issue, i. e., whether or not the Highway Commission had previously acquired title to the property.” In addition to evaluating the evidence as presented we have sought our own answer to this question. We have platted the lands sought to be condemned as described in the petition and found all of it to have been within the area shown by a plat of the lands conveyed by the instant parties or their predecessors in the 1953 deeds (Exhibits No. 1 and No. 2). The mechanics of this effort would be of no value whatever to others and the parties, if interested, may make the same discovery by simply overlaying a plat of one on the other.

There is the further question whether access rights have been taken which are compensable. The deeds of 1953 had an extended reservation of access which was practically verbatim with that set out at length in State ex rel. State Highway Commission v. Johnson, (Mo.1965), 392 S.W.2d 251, at 253, and there declared to mean, “ * * * there was a temporary right of access to the through lanes of U. S. Highway 66 until such time as an outer roadway was established, at which time the temporary access to the through lanes would cease, and a permanent access would attach to the new outer roadway.” Such access was provided as shown by an interrogatory directed to Jaques: Q: “Do the defendants have access to the outer roadway on the south side of Highway 1-44?” A: “Yes.” Additionally, Mr. Elmore testified the spur was within the primary right-of-way. State ex rel. State Highway Commission v. Brockfeld, Mo., 388 S.W.2d 862. Nor can Little Piney Oil Company recover damages because the spur terminates on its property and provides travel in only one direction. State ex rel. State Highway Commission v. Meier, Mo., 388 S.W.2d 855, 859; Handlan-Buck Co. v. State Highway Commission, Mo., 315 S.W.2d 219, 223.

None of the parties have raised any question as to the right of the commission to dismiss a condemnation petition at this stage of the proceedings, but in view of the long established rules limiting the abandonment of condemnation actions, we have thought it proper to raise the question ourselves. As stated in Nichols on Eminent Domain (2d Ed.), Vol. 2, par. 417, “In every form of procedure for appropriating land for the public use, there must be a point when the right of the condemning party to discontinue the proceeding is lost and the right of the owners of the land to the compensation becomes vested.” 30 C.J.S. Eminent Domain § 335. We held in State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025: “But if it does not take possession of any parcel of land condemned, then it has ten days to elect to abandon it after the final assessment has been made, either by subsequent commissioners or by a jury. Such was our holding in the case of State ex rel. Hilleman v. Fort, 180 Mo. 97, loc. cit. 113, 79 S.W. 167, 171, wherein we said: We conclude therefore that the true reason and meaning of the law is that the condemning party has a right to abandon the proceeding at any time within 10 days after the first assessment by the commissioners, or, if the court awards a new assessment, within 10 days after the subsequent assessments by subsequent commissioners or by a jury.’ ” Here, however, possession was taken prior to filing the motion to dismiss or abandon the proceedings. If the facts of this case are within the contemplation of the rule that the taking of possession vests title in the condemning authority, abandonment as such, comes too late. Here the commission concedes that the entire action as it pertained to these defendants was filed in error because of an oversight in their Planning Department, and they were in fact seeking to condemn lands they had previously purchased by deeds in 1953. The presence of this fact makes it obviously clear that titles to the lands described in the petition were not at any stage of this proceeding, nor could they have been, divested from the defendants. To reach such conclusion only requires the elementary thought that it was impossible to take something from the defendants that they in fact did not own. What basis is there for the argument of defendants that they should be allowed to retain the awards? Since they lost nothing, arguably, the only justification would be that a landowner having found the condemning authority in such an error may retain such award as a windfall to himself and as a penalty to the condemning authority. The statement itself precludes any thought of attempting to rationalize such a result. The fact an error was made does not within itself justify the unjust enrichment of a party thought to be the owner of lands previously acquired by the state. The conclusion reached here cannot qualify even as an exception to the restrictive rules on abandonment, for the rule itself contemplates the taking of private property for public use. Such a result was never possible in this case. Lack of precedents for so holding attests to the fact the State Highway Commission, as condemning authority for the state, has been most accurate in keeping abreast of its prior acquisitions.

The judgment of the trial court was correct and is hereby affirmed.

SEILER and STORCKMAN, JJ., concur.

HENLEY, P. J., not sitting.


source: Caselaw Access Project

author: FINCH, Presiding Judge.

license: Public Domain

text:
    Ola P. McCALLISTER, (Plaintiff) Appellant, v. H. Sam PRIEST, Kenneth Teasdale, Alphonse G. Eberle, Russell Dearmont and Raymond R. Tucker, as Members of the Board of Police Commissioners of the City of St. Louis, Missouri, (Defendants) Respondents.
    No. 52686.
    Supreme Court of Missouri, En Banc.
    Jan. 8, 1968.

      Orville Richardson, St. Louis, and Corinne R. Goodman, University City, for plaintiff-appellant.
    Thomas F. McGuire, City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, for defendants-respondents.
   FINCH, Presiding Judge.

This is a proceeding brought under the Administrative Procedure and Review Act, Chapter 536 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated) to review an order of the Board of Police Commissioners of the City of St. Louis (herein usually referred to as Board). This proceeding is a contested case before an agency within the terms of Chapter 536 and is reviewable under said act. Scism v. Long, Mo.App., 280 S.W.2d 481.

Appellant, a Major in the St. Louis Metropolitan Police Department, was suspended as North Area Commander by his commanding officer on February 6, 1964. A written charge of general inefficiency as North Area Commander in violation of Rule 15, Section 2 of the St. Louis Police Manual, amplified by seven more detailed specifications, was filed by the Chief of Police before the Board. Appellant pleaded not guilty thereto. After a hearing, the Board found appellant guilty of general inefficiency and dismissed him from the Police Force, effective December 14, 1964. Pursuant to Chapter 536, he filed a petition for review in the Circuit Court of the City of St. Louis. The Circuit Court on December 9, 1966, affirmed and appellant has appealed to this court. We have jurisdiction because appellant asserts various constitutional questions, including a claim that both Rule 15, Section 2 of the Police Manual and § 84.170(2), which authorizes such rules, are unconstitutional under the due process clauses of the Federal and State Constitutions. Rose v. State Board of Registration for Healing Arts, Mo., 397 S.W.2d 570.

One of the specifications detailing the charge against appellant was dismissed before the hearing. The other six specifications are lengthy and somewhat repetitious but may be summarized as follows: Despite instructions received, appellant failed to take effective measures to bring about more effective patrol and police activity in his area. He failed to establish and maintain an adequate and effective line inspection system, in spite of orders so to do, with the result that line inspections in his area were ineffective to detect improper performance of duty by personnel under his supervision. He made no effective suggestions or recommendations of changes which would improve performance, he expressed satisfaction with the performance of all personnel, and he failed to recommend changes in personnel who were inefficient. Thereby he demonstrated his unwillingness or inability to carry out the duties of his rank and command.

The hearing in this case was lengthy. Testimony was taken on 23 days and arguments heard on another day. The transcript consists of approximately 2200 typewritten pages and there are approximately 150 exhibits. The Police Board made 36 findings of fact. It would serve no useful purpose for us in this opinion to undertake to recite all of the evidence, and we do not propose to do so. We state testimony received only insofar as necessary to this decision.

The Bureau of Field Operations consists of approximately eighty per cent of the uniformed force of the Police Department. It actively patrols the entire city. It is commanded by a Lieutenant Colonel. The city is divided into the North and South geographic areas, each commanded by a Major. Appellant was the commanding officer of the North Area and-was directly accountable to the Chief of the Bureau of Field Operations. Under each Major were various Captains, Lieutenants, Sergeants and Patrolmen in a military type organization.

In November, 1962, the Chief of Police, pursuant to a decision by the Police Board, ordered a reorganization in which a Division of Field Inspections was established in the Bureau of Inspections. It was charged with making objective functional inspections of the work of the Bureau of Field Operations and making reports thereon directly to the Chief of Police. In the past, inspectors of the Bureau of Inspections had undertaken to correct deficiencies in work of members of the Bureau of Field Operations which they observed in making their inspections. Under the new system, such inspectors were instructed that they were to act as purely staff inspectors and were to take no corrective action. At the same time, the Chief of Police ordered the Bureau of Field Operations to institute a line inspection system to discover, correct and report on operational deficiencies in the Bureau. Appellant was ordered to do this in his North Area Command. Field Operations Area Commanders received periodic summaries which disclosed the results of inspections by staff inspectors, but these disclosed only the inspections made and deficiencies observed without giving names and places. Occasionally, to substantiate the validity of the method used by staff inspectors, Majors were given the names of particular officers involved but were instructed specifically that such information was not to be used for disciplinary purposes. Appellant was told that it was his responsibility as Field Operations Commander of the North Area to seek out deficiencies by their line inspection system (Captains of Lieutenants, Lieutenants of Sergeants, Sergeants of Patrolmen) and to see that necessary instruction and discipline were provided and proper reporting made.

Witnesses in support of the charges against appellant testified that he was skeptical of this new system. He felt that staff inspectors should correct deficiencies observed, or that the details of the inspections, including names of persons involved, should be furnished to the Area Commander.

In order to acquaint Bureau of Operations personnel with the new staff inspection system and to assist them in establishment and operation of a line inspection system, a “Coordinated Field Inspection Training Program” was instituted early in 1963 and continued until August of that year. Approximately one-half of the officers of the Bureau of Operations rode with inspectors during this period. Appellant rode in the training program for approximately one week. Reports of the Bureau of Field Operations officers riding on detached service were available to appellant. The deficiencies observed by such Field Operations personnel while riding on detached service approximated those reported by staff inspectors.

Chief Brostron and Lieutenant Colonel Shea (Chief of Field Operations and appellant’s immediate superior) testified that appellant did not establish an effective line inspection system. Inspections and deficiencies reported by the North Area Command were substantially fewer than those reported for the area by staff inspectors to the Chief of Police. When Shea discussed these matters with appellant, he reported that he and his officers were not finding all of the deficiencies reported by staff inspectors and that his personnel were all efficient and doing a good job. Shea and Brostron testified to frequent conferences with and orders to appellant on this subject, but without noticeable .change or improvement in 1963 or prior to his suspension on February 6, 1964. In late August, Shea suggested that appellant voluntarily step down to- Captain, and shortly thereafter Chief Brostron suggested to appellant that the job might be too big for him.

Examples of deficiencies reported included such things as changing location without notifying the dispatcher, officer not at location reported, not performing duty stated, substandard handling of assignments, etc. The witnesses testified that such instances caused the Department not to have control over and full use of the Police Force, and hence not to have the benefit of full utilization of the personnel in combating increasing crime. For example, a practice repeatedly found to be occurring by inspectors was the calling out of service for a “buildings check,” i.e., security investigation, but rather than trying doors, etc., the patrolman would remain in the car and flash his cruiser spotlight on the buildings as he drove by. Use of the light in this manner is not in itself wrong or against proper procedure while in cruising patrol. It is wrong when the duty announced as being performed is “buildings checks.” The result of this practice is loss of control of the patrolman, overloading patrolmen in adjacent patrol areas, and lessening of effective service coverage of the combined patrol areas.

The Board found, as a basis for its order of dismissal, that appellant failed to bring about and maintain an effective line inspection system, that operational deficiencies in his command continued without improvement, and that appellant, as a result, displayed an inability to effectively command the North Area.

The Police Department for the City of St. Louis is established by the provisions of Chapter 84. The Board consists of the Mayor and four persons appointed by the Governor of Missouri. § 84.020. Members of the Police Force are appointed by the Board. § 84.100. Qualifications of members of the Police Force are provided by § 84.120. That section then provides as follows: “The patrolmen and turnkeys hereafter appointed shall serve while they shall faithfully perform their duties and possess mental and physical ability and be subject to removal only for cause after hearing by the boards, who are hereby invested with the exclusive jurisdiction in the premises.”

The table of organization for the St. Louis Police Force, specifying various authorized ranks and the number of each, is set out in § 84.150. The time which a member of the department must spend in grade before promotion to a particular rank is provided in § 84.170. After providing the various ranks of which the officers of the police force shall consist, § 84.150 then concludes as follows: “They shall have commissions issued to them by the board of police commissioners, and those heretofore and those hereafter commissioned shall serve so long as they shall faithfully perform their duties and possess the necessary mental and physical ability, and be subject to removal only for cause after a hearing by the board, who are hereby invested with the exclusive jurisdiction in the premises.”

Appellant’s brief states, “Dismissal of Major McCallister from the Force was beyond the pleadings since he was charged only with inability to hold his job as North Area Commander.” This contention necessitates a consideration of the nature and extent of the charge and specifications.

Appellant was charged with general inefficiency in the performance of his duties as Major in charge of the North Area Command in the particulars set out in the various specifications. The charge and specifications relate solely to his performance in that capacity. They do not relate to his status as a member of the Police Force in some other capacity or allege deficiencies other than in his command position. This is made clear by a statement into the record by counsel for the Board at the hearing on the charges against appellant. Counsel stated: “Initially, I think it well to point out what this case does not involve. These charges do not amount to any specification of intentional wrongdoing or corruption in office relating to Major McCallister. This officer stands here today admitted by all to have had a long and honorable record of service to the Department and the people of the City of St. Louis.” Counsel for the Board further stated: “* * * It became clearly apparent that Major McCallister had insufficient grasp of the necessities required in his command. He had to be replaced.” In addition, the record discloses that Chief of Police Brostron, in announcing on February 7, 1964, the suspension of Major Mc-Callister and others, said: “Neither Chief Shea nor I will question the honesty and integrity of the suspended and disciplined officers. Their prior performance as police officers is not in question.”

This conclusion is supported by testimony of Lieutenant Colonel Shea, who testified about a conversation with appellant when he informed him of his suspension, as follows:

“Q What was the charges you told him?
“A General inefficiency.
“Q Now, you had no other charges that you made against him at that time, did you ?
“A No, sir, I did not.
“Q And you know of no other violation of any rule or regulation, any rule or any violation of duty except general inefficiency, is that right, Colonel?
“A Yes, sir.”

On this subject, Chief Brostron testified as follows:

“Q Now, coming back to the question for an answer, Chief Brostron, is it true that neither Chief Shea nor you are questioning the honesty and integrity of Major McCallister ?
“A That is correct. There was no question about his honesty and integrity.
“Q And his prior performance as a police officer is not in question, is it?
“A My answer to that would be his prior performances in lesser rank would not be questioned as far as I am personally concerned.
“Q I understand, you mean his prior performance while he was a Captain, for instance, is that true?
“A Yes, sir.”

It seems clear that § 84.120, which provides for appointment of persons to the Police Force, establishes a right in the appointee to continue as a member thereof and that such right may be taken from him involuntarily only for cause after a hearing by the Police Board. When a patrolman is promoted to officer rank pursuant to § 84.170(1), he then acquires an additional right under § 84.150 to retain such commission and position, which may be taken from him involuntarily only for cause after a hearing by the Police Board. The promotion to officer rank does not take away his right under § 84.120 to remain a member of the Police Force unless removed therefrom for cause.

It is entirely possible, of course, to seek in a single proceeding to take away an officer’s commission and to remove him from membership on the Police Force. We have concluded, however, that this was not done here. There is no allegation in the charge or specifications which attacks the qualification or right of appellant to remain as a member of the Police Force. The charge is limited to asserted deficiency in performance of the duties of command in his capacity as Major in charge of the North Area. This is clear from the language of the charge and specifications and from the statements of Chief Brostron and Lieutenant Colonel Shea and of counsel for the Department.

In view of the pleadings, we hold that the decision of the Police Board to dismiss appellant from the Police Force was not authorized or justified. The most that the Board could do upon a finding of guilty of the charge upon which appellant was tried would have been to remove him from his assignment as Major in charge of the North Area and reassign him to some other position on the Police Force and reduce him to such rank as the Board should decide upon, based upon the evidence received. This was not done since the Board ordered appellant discharged from the Force. Consequently, it is necessary for us to reverse and remand this case to the Board so as to afford it the opportunity to make a decision as to the discipline and reassignment to be ordered in conformity with this opinion. We announce this conclusion at the outset since it affects the question of which of appellant’s other assignments we must consider on this appeal.

Appellant attacks the sufficiency of the charge against him. He asserts that the offense of “general inefficiency” listed in Rule 15, Section 2 of the Police Manual (the charge on which appellant was tried) is indefinite and is void for vagueness. It does not, he says, establish an ascertainable standard of guilt and fails to give him fair warning in advance of conduct for which he could be removed. He asserts a lack of constitutional due process under the Federal and State Constitutions, claiming an absence of the basic ingredients of sufficient notice, an opportunity to be heard and a fair trial.

Due process of law, in the constitutional sense, is not involved in this case. The Legislature, in creating this Police Force and the various commissioned offices thereon, could have provided for tenure at will of the Police Board. The Legislature, in creating an office, may provide for such tenure as it sees fit to establish. Here, in the same section which authorized officers of various ranks, it provided for removal from one’s commission as a police officer for cause (§ 84.150). The question presented is one of whether the procedure followed conforms to the statutory requirements. State ex rel. Joos v. Guy, N.D., 125 N.W.2d 468, 472. See also State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457.

Appellant does not attack the sufficiency or constitutionality of § 84.150 or the fact that it does not define “for cause.” Appellant’s brief recognizes that removals for cause may be made, provided that one charged is given the basic ingredients of due process, i.e., notice, an opportunity to be heard and a fair trial.

“For cause” means legal cause. It “ ‘must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.’ ” State ex rel. Rockwell, Commissioner v. State Board of Education et al., 213 Minn. 184, 6 N.W.2d 251, 260, 143 A.L.R. 503; State ex rel. Joos v. Guy, supra; Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5; 67 C.J.S. Officers § 60, p. 248; 62 C.J.S. Municipal Corporations § 508(a), p. 947 ; 43 Am.Jur., Public Officers, § 205, p. 47.

Actually, if the Police Board had not adopted Section 2 of Rule 15 and had provided merely that a charge should allege the details of the asserted cause for discipline or dismissal, and had prescribed the procedure to be followed (as Rule 15 does), a charge that appellant should be removed from his commission for cause on the basis that he had been generally inefficient in various specified particulars would have been sufficient if, in fact, the acts alleged would constitute cause for such action by the Police Board. It would give adequate notice of the conduct on which removal would be sought.

The adoption by the Police Board of Rule 15, Section 2, does not alter the fact that a commissioned officer of the Police Force may be removed from that commission only for cause. Section 84.170 (2), under which such rule was adopted, provides that rules and regulations adopted must not be inconsistent with the sections of Chapter 84. Rule 15, Section 2, merely consists of an enumeration by the Police Board of acts which the Board would consider to amount to cause. It did not constitute or provide grounds for removal in addition to the statutory ground of cause. The rule required that the specifications elaborate upon and give the facts upon which the charge is based (Rule 15, Section 11). If any charge listed in Section 2 of Rule 15, together with the specifications accompanying the same, should be found not to amount to cause for removal from the officer’s commission, it is apparent that this court would be obligated to so hold if the Board sought to remove an officer from his commission on that account.

Appellant complains of the use of the term “general inefficiency.” Inefficiency has been held to be a ground or cause for suspension or removal of public officers. “ ‘Inefficiency,’ as a ground for removal, is the quality of being incapable of doing, or indisposed to do, the things required of an officer, * * 67 C.J.S. Officers § 60(5), p. 253. See also 43 Am.Jur., Public Officers, § 197, p. 41. The specifications included in the charge itemized the details of the asserted inefficiency. They alleged acts relating to the administration of his office, were of a substantial nature, and do affect the public interest. The addition of the word “general” preceding “inefficiency” did not make the charge less adequate or understandable as notice to appellant of the grounds on which his actions as Major in charge of the North Area were alleged to be deficient and therefore a basis for removal from his command. The allegations were sufficient to tell appellant the cause for which his removal was sought.

We are of the opinion that there has been compliance with the due process requirement of adequate notice to appellant of the cause for which removal of his officer’s commission was sought.

A second assignment of appellant which we must consider is his contention that there was no substantial and competent evidence on the whole record that he failed to establish an effective line inspection system or that, if he did so fail, he was generally inefficient.

At the outset, we recognize the type of judicial review contemplated by § 536.140 of the Administrative Procedure Act. The action of the Police Board here being reviewed involves the exercise of discretion and “It is too well settled to require citation that neither the trial court nor this court may substitute its judgment on the evidence for that of the board. The inquiry by the circuit court and that of this court is limited to ascertaining whether the board could have reasonably made its findings and reached its result upon consideration of all the evidence before it and whether the board’s decision was clearly contrary to the overwhelming weight of the evidence.” Johnson v. Priest, Mo.App., 398 S.W.2d 33, 35. Furthermore, as stated at page 36 of said opinion, “It has repeatedly been stated that, in reviewing matters of this nature, the circuit court, and this court, should adhere to the rule of deference as to findings involving the credibility of witnesses appearing before the administrative board. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; State ex rel. Bond v. Simmons, Mo.App., 299 S.W.2d 540.” See also Willens v. Personnel Board of Kansas City, Mo.App., 277 S.W.2d 665.

Appellant offered considerable evidence to indicate satisfactory performance of his job as Major in charge of the North Area in other phases of his work' as well as the matter of establishing an effective line inspection system. The question for us to decide, however, is not what we would have concluded from all of the evidence. Rather, we must determine whether the finding that appellant was directed to but failed to establish an effective line inspection system in his command and that operational deficiencies in his command did not show improvement is supported by substantial and competent evidence on the whole record. Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626; Johnson v. Priest, supra. We hold that it is. Such failure would constitute general inefficiency and cause for action by the Police Board. The testimony indicated that crime was on the increase and the department was shorthanded. Effective use of personnel was essential to effective functioning of the command. Adequate inspection of operations and resulting discipline and instruction was necessary. The Board had made the policy decision that a separate system of staff inspection, plus a system of line inspection, should be utilized. The determination of policy was the prerogative of the Police Board. It was appellant’s duty to carry out that policy. He had no right to do otherwise on the basis that he disagreed with the policy established. He had the unmistakable duty to carry out that policy and the orders given in connection therewith. It would be an intolerable situation if an officer in such a command position could decline or fail to carry out the directed policy of the policy-making board and not be subject to removal for such cause. Even if the officer did the rest of his work in a satisfactory manner, his command position made it essential that he carry out the inspection program according to directions, and his failure to do so would make him inefficient as the commanding officer of the North Area. It would provide a basis for removing him from that position.

Appellant also asserts denial of due process in that he did not have a fair hearing for various reasons. The first contention in this respect is that the Rules of the Police Board, including Rule IS, Section 2, were ineffective for failure to file a certified copy thereof with the Secretary of State pursuant to § 536.020 of the Administrative Procedure Act. Paragraph 2 of that section provides that rules become effective ten days after filing.

This contention by appellant overlooks the definition of “Rule” set out in § 536.010. It provides that “Rule” as used in the act “does not include regulations concerning only the internal management of the agency and not directly affecting the legal rights or privileges of, or procedures available to the public.” The Manual of the Police Department contains regulations which concern the internal management of the department and § 536.020 is inapplicable. Filing of a copy of these Rules with the Secretary of State was not required as a condition to applicability of the Rules to appellant.

The second contention relating to asserted lack of a fair hearing concerns the admission and exclusion of evidence. One such complaint is that the Board improperly received hearsay evidence. It is true that the Board took the position that it was entitled to receive hearsay evidence and that the customary rules of evidence did not apply in that respect. On that basis, for example, Chief Brostron was permitted to testify as to conversations with Lieutenant Colonel Shea at which appellant was not present. This was contrary to what this court has ruled previously. For example, in State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209, the court said: “It stands adjudged that hearsay evidence and conclusions based upon hearsay do not qualify as ‘competent and substantial • evidence upon the whole record’ essential to the validity of a final decision, finding, rule or order of an administrative officer or body under § 22, Art. V of the Missouri constitution of 1945. The practically identical provision (Laws 1945, p. 1509, § 10(f) (3), Mo.R.S.A. § 1140.110(f) (3) of the Administrative Review Act, which implements said § 22 of the Constitution, calls for like reasoning and a like holding. * * * The fact that technical rules of evidence do not control has been considered to permit of leading questions and other informalities but not to abrogate the fundamental rules of evidence. Novicki v. Department of Finance, 373 Ill. 342, 26 N.E.2d 130, 131 [1-4].” However, reception of hearsay evidence does not dictate a reversal unless there is not sufficient competent evidence to sustain the decision. In State ex rel. City of St. Louis v. Public Service Commission of Missouri, 329 Mo. 918, 47 S.W.2d 102, this court held that it could not reverse an order of the Public Service Commission for receiving incompetent evidence, unless the order and decision was based thereon, and that the court could and would determine whether the finding of facts by the Commission was supported by competent substantial evidence. We do that in this case and hold that there is sufficient competent evidence to sustain the Board’s finding that appellant failed to establish an effective line inspection system, that operational deficiencies in the area did not show improvement, and that appellant was inefficient.

Appellant also complains of admission of other evidence, consisting largely of various reports and records from the files of the Police Department (staff inspection reports and line inspection reports, for example) and statistical summaries and charts based thereon. Much of the evidence objected to was admitted on the basis of the Uniform Business Records as Evidence Law, §§ 490.660-490.690. Considerable latitude is allowed in the admission of such records. State v. Weindorf, Mo., 361 S.W.2d 806. We have reviewed the assignments, the evidence received and the authorities cited. To detail each specific instance and to discuss each would greatly lengthen this opinion without, in our judgment, serving any useful purpose. We have con-eluded that appellant was not prejudiced by the admission of such evidence.

Much the same is true with respect to asserted error in exclusion of evidence and restrictions on cross-examination. In most instances appellant was permitted to interrogate the witness for the purpose of making an offer of proof and then to make a formal offer. These were sufficient to make it apparent what appellant sought to show and to permit its consideration, if competent. In other instances appellant sought to delve into details with respect to suspension of the South Area Commander and the two Lieutenants and six Sergeants who were suspended on February 6, 1964, along with appellant. He also sought to show that Lieutenant Colonel Shea had done nothing to improve supervision and was deficient himself. These were collateral issues to the question of whether appellant was guilty of the charge against him. Cross-examination by appellant was quite extensive and not unduly limited. In any event, after consideration of all of these assignments, we find no prejudicial error.

Another issue, related to the admission of evidence and raised in connection with whether appellant had a fair trial, involves the action of the Board in overruling a pre-trial motion for leave to interview certain members of the Police Force. He claims that such action denied to him the opportunity to prepare adequately for his defense.

On August 25, 1964, appellant filed a motion in which he recited that he was advised that the Department would offer in evidence various exhibits which would disclose the results of staff inspections in the North Area covering a period of time from January, 1963, to February 6, 1964. He further alleged that the findings of staff inspectors had not been revealed to the patrolmen inspected and that the latter had no opportunity to explain their conduct or deny the accuracy of the field inspector’s reports. He asked that he be permitted to interview the patrolmen and have them check their daily activity sheets and the radio tapes of their calls in order to answer questions put to them. It was requested that these patrolmen (the number involved is estimated by the Department at approximately 170) be given time off for this purpose. Appellant asked the right to orally interview such men and also offered to send out a joint letter and questionnaire with the Department relative to these matters. The Department responded that the records of the Field Inspection Division, as well as other Department records, had been made available to appellant and his counsel months previously and that these contained a full description of the deficiencies and the names of each officer involved. The Department offered to send a proposed questionnaire to each police officer and to furnish appellant with copies of all responses, but otherwise urged that the motion be overruled. Appellant responded by withdrawing his offer to send out a questionnaire. On September 8, 1964, the Board overruled appellant’s motion but indicated that it would be agreeable to the questionnaire procedure proposed by the Department. Appellant declined that offer.

We hold that the action of the Board on appellant’s motion for permission to interview was not prejudicial error. Appellant’s motion indicates that he sought to obtain evidence that on some occasions police officers, reported by staff inspectors as failing to conform to prescribed procedure, had an explanation or reason for doing what they did. This was a purely collateral issue, not properly triable in this proceeding. Staff inspectors were to report apparent irregularities or deviations from established procedure and rules. The staff inspectors were not to seek explanations or to correct persons observed. ' The staff reports were not to be on the basis of disciplinary action. Staff inspections were merely a check by the Chief of Police on efficiency of line activity. Field Operations officers, by means of line inspections, were obligated to detect deviations from rules and prescribed procedure. They were to instruct and discipline, if necessary, for such irregularities. Reasons and explanations for the irregular actions then became important, and would affect whether discipline was indicated. Nevertheless, line inspection reports still were to include all irregularities or deviations observed, even if explainable. Under such circumstances, it was unnecessary and improper for the Board in this proceeding to go into the merits of discrepancies reported in staff inspection reports. The interviews sought on this issue could not have had any probative value in determining whether appellant had established a line inspection system such as he had been directed to establish and operate. Furthermore, such evidence would have increased tremendously the length of a record which already was too long. We also observe that appellant himself testified that he never questioned the accuracy of the staff inspection reports, and further that the record discloses that Field Operations personnel, when serving on detached duty in the training program, observed and reported substantially the same percentage of deficiencies and irregularities as did staff personnel.

Counsel for the Department also point out that the motion was not filed until shortly before the case had been set for hearing on September 14, 1964, and that the time available was then much too short for the interviews sought and was not timely.

We overrule appellant’s contention that he was prejudiced by action of the Board in overruling the motion to interview officers which was filed August 25, 1964, and renewed during trial.

In view of the fact that we have reversed the order of the Board, other assignments, including one that two of the three members of the Board who heard this case were biased and prejudiced against him, need not be considered. A new Board has been appointed and will decide the case and fix the discipline to be imposed.

On remand, the Board may consider and decide the case on the record previously taken and it may, if it so elects, hear additional evidence. It should not consider and rely upon the hearsay conversations which we have held were inadmissible.

The Department should be given the opportunity, if it so elects, to file an additional charge which asserts cause for removing appellant from membership on the Police Force. If an additional charge is filed, the Board shall conduct a hearing thereon. Evidence previously taken may not be considered on any new charge, unless by stipulation, since there was no charge against appellant attacking his rights under § 84.120 when that evidence was heard.

The judgment of the Circuit Court and the order of the Police Board are reversed and the cause is remanded for further proceedings in conformity with this opinion.

All concur.

      . The South Area Commander and two Lieutenants and six Sergeants were suspended at the same time.

      . We do not discuss § 84.120 since the charge did not attack appellant’s performance as a member of the Police Force but it contains the same feature.


author: TITUS, Judge.'

text:
    STATE of Missouri ex rel. Rufus RHINE, Relator Appellant, v. M. E. MONTGOMERY, Magistrate Judge of Scott County, Missouri, Respondent.
    No. 8648.
    Springfield Court of Appeals. Missouri.
    Dec. 12, 1967.

      Claude Arnold, Dexter, for relator-appellant.
    Elvis B. Hinson, Morehouse, for respondent.
   TITUS, Judge.'

Relator appeals [Rule 97.06 and § 530.-080] from the judgment of the Circuit Court of Scott County, Missouri, quashing its preliminary writ of prohibition and refusing to make it absolute and permanent. Respondent is the judge of the Magistrate Court of Scott County where this cause had its commencement October 30, 1956, when B. E. Patterson sued relator to collect the balance allegedly due on a promissory note. Summons was served relator in Scott County but he did not plead or otherwise appear and default judgment ivas entered against him on November 20, 1956. Nigh to nine years later and pursuant to § 517.-790 et sequens, Patterson sued out a scire facias in the magistrate court on May 14, 1965, to revive the judgment. Appearing specially, relator moved for dismissal contending the 1956 judgment was void because of the court’s lack of jurisdiction over his person. The motion was overruled and the judgment was ostensibly revived. Relator thereafter filed his petition in the circuit court for writ of prohibition to prevent respondent from taking further action on the magistrate judgment or in that case. Respondent’s pleading, entitled “Motion to Quash and Answer,” was treated by all concerned as representing a motion directed to the petition and as a return to the preliminary order as prescribed by Rule 97.03 and § 530.050. We shall do likewise.

Upon hearing in the circuit court, no objection was made to the evidence (also admitted to be true by respondent) that when suit was filed, service had and judgment entered in 1956, Patterson was a New Madrid County, Missouri, resident, relator was a resident of Stoddard County, Missouri, and summons had been served on relator in Scott County while he was there in pursuit of employment.

If the magistrate court had no jurisdiction over the person of the relator, the 1956 judgment was void and, if void then, it remains so forever. Restatement of Judgments, § 14, pp. 77-81; 49 C.J.S. Judgments §§ 451-452, pp. 882-884. The judgment in scire facias was based upon the original judgment and would have no more force and effect than the judgment upon which it was founded. Thieman Bros. v. Bodine, 239 Mo.App. 875, 202 S.W.2d 912, 915(7). A void judgment is entitled to no consideration [Coombs v. Benz, 232 Mo.App. 1011, 114 S.W.2d 713, 717(8)] and any kind of a proceeding to cancel it is proper [McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 34(2)], including prohibition to prevent further action in a defaulted suit. State ex rel. Compagnie Generale Transatlantique v. Falkenhainer, 309 Mo. 224, 274 S.W. 758, 759(1). However, prohibition to prevent execution on or enforcement of a judgment valid on its face is a collateral attack and extrinsic evidence is generally inadmissible to collaterally dispute it. Nevertheless, if the facts as to jurisdiction (as here)' are undisputed, agreed upon or admitted into evidence without objection and reveal the court’s lack of jurisdiction over the person of the defendant, it is then established the judgment is void as if so shown by the record itself and under such circumstances it becomes the duty of the court to so declare as a matter of law in a collateral proceeding. Edwards v. Hrebec, Mo.App., 414 S.W.2d 361, 364(4); State ex rel. Uthoff v. Russell, Mo.App., 210 S.W.2d 1017, 1023; State ex rel. Compagnie Generale Transatlantique v. Falkenhainer, supra, 274 S.W. at 760(3); 30A Am.Jur. Judgments, § 859, p. 775 ; 49 C.J.S. Judgments § 410 at p. 816.

As pertinent to our problem, § 517.010 (Magistrate Court Procedure) specifies that “Every action * * * instituted by summons shall, except as provided by law, be brought: (1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; * * * ” We are not directed to nor have we found a reported case construing this law, but as this section and the general venue statute, § 508.010(1), are identical, the authorities construing the latter will control our determination of the jurisdiction of the Scott County Magistrate Court over the person of relator in this instance.

Proper venue is, o£ course, necessary before service- of process will confer jurisdiction, over the person of a defendant [State ex rel. Bowden v. Jensen, Mo. (banc), 359 S.W.2d 343, 345(2); State ex rel. Bartlett v. McQueen, (banc), 361 Mo. 1029, 238 S.W.2d 393, 395(1), and cases citedj and “unless a defendant is served with process, or summoned, in some manner authorized by statute law the court is without authority to proceed.” State ex rel. Minihan v. Aronson, 350. Mo. 309, 165 S.W.2d 404, 407(3).

There is no ambiguity in § 517.010 (1), supra, which permitted Patterson to sue relator only (a) in Stoddard County where relator resided, or (b) in New Madrid County where Patterson resided, provided relator could be found and served in New Madrid County. As neither Patterson nor relator were residents of Scott County where the suit was brought, and as relator did nothing to waive venue or the court’s lack of jurisdiction over his person, the judgment entered by the magistrate court was void. State ex rel. Carney v. Higgins, Mo., 352 S.W.2d 35, 38(2), 100 A.L.R.2d 687; Phillips v. Whittom, 354 Mo. 964, 968 syllabus 1, 192 S.W.2d 856, 857; cf., Ellmaker v. Goodyear Tire & Rubber Company, Mo.App., 372 S.W.2d 650 and Krueger v. Walters, 238 Mo.App. 340, 179 S.W.2d 615, 618(4).

Respondent filed no brief in this court. Such a practice is often condemned [Hunter v. Schwertfeger, Mo.App., 407 S.W.2d 606, 608(1)] but respondent incurs no penalty except forfeiture of the opportunity to advise what authorities and reasons, if any, might sustain the judgment of the trial court. The circuit court made no findings of fact and was not asked to do so. Consequently we have no indication from either respondent or the trial court why the judgment appealed from is contrary to our conclusion. Respondent suggested the magistrate court action and judgment was proper under § 517.080. This simply provides that “process shall be a summons” and designates to which sheriff or sheriffs it shall be directed. It contains no venue provisions and does not affect the plain wording of § 517.010(1), supra. Respondent also contended- in the circuit court the magistrate judgment was not subject to attack as it became absolute aftei three years under § 511.190 and Rule 74.14. “This statute [§ 511.190 and Rule 74.14] applies only to the special procedure of petition for review of a valid default judgment, provided in [§ 511.170 and Rule 74.12] based upon the grounds set out in [§ 511.200 and Rule 74.15] * * *. It is not applicable to a judgment void for lack of jurisdiction to enter it, because such a judgment is of no force and effect whatever and may be collaterally attacked.” Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499, 501(3).

The judgment of the Circuit Court of Scott County is reversed and remanded and that court is directed to issue its order, judgment and decree that its preliminary writ of prohibition heretofore issued be made permanent and absolute and that it command respondent herein as judge of the Magistrate Court of Scott County, Missouri, absolutely to desist and refrain from exercising, or attempting to exercise, any further jurisdiction with respect to the said cause aforesaid.

HOGAN, P. J., STONE, J., and COT-TEY, Special Judge, concur.

      . All references herein are to Supreme Court Rules of Civil Procedure, V.A.M.R., and to RSMo 1959, V.A.M.S.


author: PALMORE, Judge.

text:
    Peyton S. HAWES, as State Revenue Commissioner of the State of Georgia, etc., Appellant, v. CUMBERLAND CONTRACTING COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    As Modified on Denial of Rehearing Jan. 12, 1968.
    E. Gordon Bertram, Jr., Bertram & Bertram, Monticello, Arthur K. Bolton, Atty. Gen. of Georgia, Atlanta, Ga., William L. Harper, John A. Blackmon, Asst. Attys. Gen. of Georgia, Atlanta, Ga., for appellant.
    Bruce H. Phillips, Monticello, for appel-lee.
   PALMORE, Judge.

The Revenue Commissioner of Georgia (hereinafter called the Commissioner) appeals from a summary judgment dismissing his suit in the Wayne Circuit Court on a 1963 judgment obtained against the appellee company (hereinafter called Cumberland) in the Superior Court of Houston County, Georgia.

In the year 1953 Cumberland did substantial business in Georgia but has done no business there since. Nor has Cumberland at any time had a residence, place of business, or agent for service of process in Georgia. After the work had been completed, the Commissioner asserted a claim against Cumberland for unpaid sales and use taxes, but ensuing negotiations proved fruitless. In 1957 Georgia enacted a “long-arm” statute by which provision is made for securing in personam jurisdiction on anyone whose activities in that state have given rise to an unsatisfied tax liability. Pursuant to that statute the Commissioner secured the 1963 judgment on which this action is founded. Cumberland received by registered mail notice and a copy of the complaint in the Georgia action but did not appear or respond, and judgment was taken by default.

This suit was filed in the Wayne Circuit Court on August 26, 1964. The record does not disclose when summons was executed, but a motion to dismiss was served in behalf of Cumberland on November 5, 1964. On January 8,. 1965, the Commissioner served a motion for summary judgment. On January 28, 1965, by direction of the trial court, the Commissioner served and filed an amended complaint making certain additional allegations such as the fact that the judgment sued upon was still in full force and effect, had not been appealed or set aside, and had not been satisfied. By an order signed on the same day, January 28, 1965, the trial court overruled Cumberland’s motion for a dismissal and granted it 20 days in which to answer. (This order was endorsed by the clerk as “filed” on February 20, 1965). On February 22, 1965, the Commissioner served on Cumberland a motion for default judgment certifying that no further papers had been served on him in behalf of the defendant.

The motion for default judgment came on for hearing on February 25, 1965, at which time it was overruled and Cumberland was granted until March 13, 1965, to answer. An answer challenging the validity of the Georgia judgment on grounds of insufficient service and lack of jurisdiction was served on March 8, 1965. Ultimately the trial court overruled the Commissioner’s motion for a summary judgment and entered a summary judgment in favor of Cumberland on the basis of these defenses.

One of the grounds on which the Commissioner seeks a reversal is that the overruling of his motion for default judgment was an error.

CR 15.01 provides that a party “shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.”

The amended complaint was served on January 28, 1965. The Commissioner had the privilege of filing it without permission of the court, since no responsive pleading had been served. CR 15.01. Cumberland’s motion to dismiss was not a pleading. CR 7.01, 7.02; Clay’s Kentucky Practice, CR 7.01, Comment 6. Hence the fact that the order signed by the trial judge on January 28, 1965, in which the amendment was authorized and directed, was not entered until February 20, 1965, was of no consequence with respect to the amended complaint, and Cumberland was in default at the expiration of 10 days after January 28, 1965.

An order becomes effective only when it is entered by the clerk in the manner directed by CR 58. Powell v. Blevins, Ky., 365 S.W.2d 104, 105 (1963). Nevertheless, even if the order had been so entered on January 28, 1965, it allowed but 20 days for an answer, so Cumberland was in default anyway when the Commissioner moved on February 22, 1965, for a default judgment.

CR 6.02 provides than when an act is required to be done within a specified time the court may in its discretion (1) enlarge the time if so requested before it expires, or “(2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.” (Emphasis added.)

Reading CR 15.01 and CR 6.02 together, we construe them to mean that in the absence of waiver by the adverse party a litigant whose time to plead has expired cannot be allowed to do so except upon a motion and showing of excusable neglect. In this case the record does not indicate that any motion was made, nor is there any showing of excusable neglect. Under these circumstances it is our opinion that the overruling of the Commissioner’s motion for a default judgment was an abuse of discretion.

It is argued, however, that Cumberland was not in default, because its motion to dismiss the complaint upon the ground it did not state grounds for relief, which motion was served on November 5-, 1964, before the complaint was amended, enlarged the time in which a responsive pleading was required to be served until 10 days after notice of the court’s action in overruling the motion to dismiss. Cf. CR 12.01, 12.02. Our reaction is that when a complaint has been amended, a pending motion to dismiss for failure to state a claim upon which relief can be granted must be renewed in order to remain alive, because the amendment results in a new complaint. From the standpoint of orderly procedure, it would hardly make sense to dismiss a complaint without dismissing the amendment as well.

We are of the further opinion that Cumberland must lose dn the merits of the case. Its only argument is that the Georgia court did not have jurisdiction to render a judgment in personam against it. We view McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), and International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945), as dispositive authority to the contrary.

The judgment is reversed with directions that a judgment be entered granting the relief demanded by the complaint.

All concur.


author: WADDILL, Commissioner.

text:
    Grant BROWN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.
    As Modified on Denial of Rehearing Jan. 19, 1968.

      Lowell W. Lundy, Pineville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   WADDILL, Commissioner.

Appellant was convicted of a third offense violation of the local option law and sentenced to prison for one year. To reverse the conviction it is contended that the trial court erred (1) in not providing appellant with a copy of the indictment and (2) in instructing the jury.

On October 10, 1966, an indictment was returned charging appellant with the third offense violation of the local option law. KRS 242.230 ; 242.990. The indictment contains four paragraphs, the first of which sets out a violation on August 20, 1966, of possessing, for the purpose of sale, alcoholic beverages in violation of the local option law. The second and third paragraphs of the indictment contain allegations of appellant’s convictions of violations of the local option law on October 18, 1960 and October 13, 1965, respectively. The fourth paragraph of the indictment alleges a violation of the local option law on August 12, 1966.

On October 12, 1966, appellant appeared in court represented by employed counsel, waived arraignment and entered a plea of not guilty. When the case was called for trial on January 16, 1967, appellant’s counsel asked for a continuance on the ground that the copy of the indictment he had obtained from the office of the Commonwealth’s Attorney was different from the one upon which he was being prosecuted. The true indictment contains an allegation in paragraph four that appellant had unlawfully sold whiskey on August 12, 1966, while the copy which appellant had did not embrace this allegation.

Counsel for appellant does not claim that the Commonwealth’s Attorney was responsible for the fact he obtained an erroneous copy of the indictment, but he does argue that he was entitled to receive a true copy of the indictment under RCr 8.02, which formerly provided that the accused “shall be given a copy of the indictment or information before he is called upon to plead.”

The trial court overruled the motion and pointed out that the indictment had been returned on October 10, 1966, and that appellant was represented by counsel and that the indictment had been available for counsel’s examination and inspection.

It is clear from the language of former RCr 8.02 that an accused was entitled to have a true copy of an indictment for the purpose of being informed of the offense with which he is charged. In the instant case appellant was informed on October 12, 1966, that he was to be placed upon trial on January 16, 1967, for violating the local option law. Upon his arraignment on October 12, 1966, he waived the reading of the indictment. It is highly improbable that counsel would do this if he had not been informed of the charges against appellant prior to the arraignment. We are unwilling to permit counsel to rely on an unofficial and erroneous copy of an indictment when counsel had had several months to obtain a true copy from the court or its clerk. Under the circumstances of this case we find no denial of due process. Richardson v. United States, 8 Cir., 217 F.2d 696.

It is further contended that appellant was entitled to either have a directed verdict on the count embraced in paragraph four of the indictment or was entitled to have it submitted to the jury. RCr 6.18 specifically permits joinder of offenses and KRS 242.990(1) provides more severe penalties for successive convictions for violations of the local option law. Therefore a number of offenses as well as a number of prior convictions are properly chargeable in the indictment. Since the trial court ignored the count contained in paragraph four of the indictment when it submitted the case to the jury we are of the opinion that appellant could not have been prejudiced by such procedure. We conclude that the procedure employed was beneficial to appellant because, in effect, it constituted a dismissal of one of the alleged violations of the local option law.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    Hannah HARRISON et al., Petitioners, v. Gus E. BROWN, Jr., et al., Respondents.
    No. B-395.
    Supreme Court of Texas.
    Nov. 8, 1967.
    Mills, Shirley, McMicken & Eckel, Galveston, Bell & Gwin, Bay City, for petitioners.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Chester M. Fulton and R. Mayo Davidson, Houston, Entzminger & Uher, Bay City, for respondents.
   PER CURIAM.

This is a suit for declaratory judgment and the construction of the will of Hannah Thompson, petitioners’ grandmother. The opinion of the court of civil appeals is reported in 416 S.W.2d 613. The testatrix by these words devised some land to her son, John E. Thompson, for his lifetime with the remainder to his five children:

“ * * * unto my said son John E. Thompson during his life, and after his death in fee to his children, Marguerite Thompson, Pauline Britton, wife of Albert B. Britton, Audrey Thompson, Hannah . Thompson and Thelma Thompson, and to such other children of his body which may be born to him, share and share alike, but should any of said children die without issue, then the share of such child or children so dying without issue is hereby devised in fee to the survivor or survivors of such child or children of my said son, John E. Thompson. Now, should all the children now born to my said son John E. Thompson, or which may hereafter be born to him, die without issue, then the fee herein devised to said children is hereby devised to my said son John E. Thompson. * * * ” (Emphasis added)

The life tenant died and all of his five children were living at that time. Pauline, one of the life tenant’s children, thereafter died without issue. The court of civil appeals correctly construed the words of the will to mean that upon the death of the life tenant, the testatrix intended the fee to vest indefeasibly in the life tenant’s living children. Flores v. De Garza, 44 S.W.2d 909 (Tex.Com.App.1932, judg. adopted) ; 5 Bowe-Parker, Page on Wills, §§ 44:15, 44:16, 44:17 (1962); Restatement, Property, § 269 (1940). The other four re-maindermen urge that Pauline received a determinable fee which reverted to them upon her death without issue even though she died after the life tenant’s death. Testatrix’ will, as evidenced by the portion underlined, shows an intent that the re-mainderman’s death without issue had to occur before the death of the life tenant for the gift over to operate. Petitioners rely upon two cases which hold that a direct devise without a preceding life estate was defeasible upon the death of the devisee without issue at any time. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937); St. Paul’s Sanitarium v. Freeman, 102 Tex. 376, 117 S.W. 425 (1909). Those cases are strictly analogous to the present case in which the gift to the remainderman was preceded by a life estate. However, testatrix’ will in this case shows an intent contrary to that which petitioners urge; therefore it is unnecessary to examine the soundness of the rule of construction applied in the two cases relied upon by the petitioners. The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: HAMILTON, Justice.

text:
    CERTAIN-TEED PRODUCTS CORPORATION, Petitioner, v. Allen L. BELL and wife, Gladys Bell, Respondents.
    No. B-144.
    Supreme Court of Texas.
    Jan. 3, 1968.
    Folley, Snodgrass, Calhoun & Kolius, V. G. Kolius, Amarillo, for petitioner.

      Monning & Monning, Robert R. Bradshaw, Amarillo, for respondents.
   HAMILTON, Justice.

This is a suit by Allen L. Bell and wife, Respondents, against Certain-Teed Products Corp., Petitioner, for damages on an implied warranty growing out of a contract to build a house on certain lots located in the City of Amarillo, Texas. Petitioner is the successor in interest to the builder and Respondent is the owner. The trial court entered judgment on a jury verdict for Respondents and the Court of Civil Appeals affirmed, conditioned upon a remittitur which was made. 411 S.W.2d 596. We affirm.

In their petition Respondents alleged that the builder contracted as follows:

“ * * * [T]o furnish all labor and material to construct and erect upon the following described land and premises * * * to wit: (Description) and in accordance with certain plans and specifications agreed upon by the parties, the following improvements:
“I.E.H. Home — Model known as Cherry Hill, with 8' 0" ceilings, Peremiter type foundation, completed to finish stage.”

all of which, Respondents asserted, “fully appears from the written contract between the parties, a copy of which is attached hereto and marked Exhibit ‘A’ and made a part hereof.” A mechanic’s lien contract and deed of trust, setting forth the above information, were attached to the petition. They further alleged that the house was not constructed in a good and workmanlike manner in some thirteen respects, some of which were sustained, and the jury awarded damages resulting therefrom.

Petitioner asserts that the cause of action is barred by limitations. Suit was filed more than two years but less than four years after the cause of action accrued. This presents the question of whether this cause of action is governed by Article 5526 or Article 5527 , Vernon’s Ann.Civ.Stat.

Our first problem is to determine whether this suit is brought on a written contract or on an oral contract. Petitioner contends that because there were no written plans and specifications attached to the written contract between the parties the contract sued on was necessarily partly oral and partly written and should, therefore, be construed as an oral contract for purposes of determining limitation. We think the Court of Civil Appeals has properly decided this question against the contention of Petitioner. Petitioner agreed in writing to construct on the property of Respondents a home — model known as Cherry Hill. Petitioner did construct such a home, and the Respondents accepted the completed home as such. Respondents’ suit is not based on the failure to do something that Petitioner orally promised to do, but upon the failure to do in a good and workmanlike manner that which the Petitioner agreed in writing to do and did do. The judgment of the trial court as modified by the Court of Civil Appeals is confined to damages resulting from such failure.

Having determined that this suit is based on a written contract our next question is, what statute of limitation governs suits to enforce implied warranties growing out of written contracts. It seems to be well settled that a cause of action for breach of an implied warranty in an oral contract is governed by the two-year statute of limitation. Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908 (1907). Some Courts of Civil Appeals, however, as will be pointed out later, have apparently treated this case as involving a written contract, whereas the opinion of this court treated the contract as oral.

We have concluded that a warranty which the law implies from the existence of a written contract is as much a part of the writing as the express terms of the contract, and the action to enforce such a warranty is governed by the statute pertaining to written contracts. In reaching this conclusion, as did the Court of Civil Appeals, we rely on some general principles announced in International Printing Pressmen etc. v. Smith, 145 Tex. 399, 198 S.W.2d 729, 736 (1946), wherein this court said:

“ ‘[I]t is not indispensable that the written instrument relied upon contain an express promise to do the things for the nonperformance of which the action is brought. It is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which, by fair implication, the obligation or liability arises.’ ”

and, in Texas Pacific Coal & Oil Co. v. Stuard, 7 S.W.2d 878 (Tex.Civ.App.1928, writ ref.), wherein the court said:

“ ‘It is the settled law of this state that, upon acceptance of the lease involved in this case, it became appellant’s duty upon the discovery of oil and gas in paying quantities, to develop the premises diligently for the purpose of producing such oil and gas if same could be developed profitably to appellant. * *
“ ‘This obligation was in the minds of the parties and became a part of the written contract. The law is a part of every contract. The obligation to develop was therefore a written obligation, although not definitely expressed. * *
“ ‘ * * * We believe the implication to develop after drilling the exploratory well is a part of the written contract and is governed by the four-year statute of limitations. * * *

Our position is also supported in other jurisdictions. We quote a general statement from 1 A.L.R.3d 914, 917 (1965).

“Thus in an action of breach of an implied warranty in the performance of a written contract, it has been held that the warranty is implied into the writing, and that the statute governing written contracts, applies.”

This statement is supported by Bancroft v. San Francisco Tool Co., 5 Cal.Unreported Cases 686, 47 P. 684 (1896); Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co., 111 F.2d 875 (7th Cir. 1940).

Petitioner, in support of its position that suits on implied warranties, whether they are in oral or written contracts are governed by the two-year statute of limitation, cites Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908 (1907); Summers v. Bransford-Hinds Bldg. Co., 383 S.W.2d 947 (Tex.Civ.App.1964 writ ref’d n. r. e.); Puretex Lemon Juice, Inc. v. S. Riekes & Sons of Dallas, Inc., 351 S.W.2d 119 (Tex.Civ.App.1964 writ ref’d n. r. e.); Cooper-Bessamer Corp. v. Shindler, 132 S.W.2d 450 (Tex.Civ.App.1939 n. w. h.); Bishop-Babcock-Becker Co. of Texas v. Jennings, 245 S.W. 104 (Tex.Civ.App.1922 n. w. h.); and Kirwan v. Alamo Iron Works, 155 S.W. 986 (Tex.Civ.App.1913 n. w. h.). Smith v. Fairbanks, etc., as pointed out above deals with an oral contract and the application of the two-year statute and does not support Petitioner’s position. Neither does the Kirwan case since that case did not involve an implied warranty, but involved an express warranty in a written contract, and the four-year statute was applied. The opinion does indicate by dictum that an implied warranty in a written contract would be governed by the two-year statute of limitation but incorrectly cites the Fairbanks case in support of such dictum. The Bishop case involved an action on a breach of an implied warranty in a written contract in which the two-year statute was applied. The court in that case relied on Fairbanks and Kirwan. In the Cooper-Bessamer case the court applied the two-year statute of limitation citing the Fairbanks and Bishop cases as authority. In the Puretex case the court applied the two-year statute citing the Fairbanks case, but the case apparently involves an oral contract. In the Summers case the Court of Civil Appeals did not have before it the question involved herein, as it was only concerned with when the statute began to run. It was assumed by the parties that the two-year statute applied.

We conclude, therefore, that the cases above relied on by Petitioner are not controlling authority for the proposition that an action founded on an implied warranty arising out of a written contract is controlled by the two-year statute of limitations. See 19 Baylor L.Rev. 500 (1967) analyzing these cases.

We affirm the judgment of the Court of Civil Appeals.

      . Art. 5526: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * Actions for debt where the indebtedness is not evidenced by a contract in writing.”

      . Art. 5527: “There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: 1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing.”


text:
    UNIVERSAL LIFE AND ACCIDENT INSURANCE COMPANY, Petitioner, v. Geneva FIELDS, d/b/a Fields Funeral Home, Respondent.
    No. B-533.
    Supreme Court of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 24, 1968.
    Dibrell, Dibrell & Greer, G. William Rider, Galveston, for petitioner.
    Herschel B. Cashin, LaMarque, for respondent.
   PER CURIAM.

Plaintiff Universal Insurance Company filed this suit in the County Court of Galveston County to rescind an insurance policy in the amount of $500 issued to Emma Taylor. The defendant Fields was as-signee of the policy proceeds. Although the insured was deceased at the time of Universal’s suit, there was no cross-action for payment of the policy filed by either the beneficiary or Fields.

The trial court overruled defendant’s plea to the jurisdiction and instructed a verdict for Universal, based on uncontroverted evidence that Mrs. Taylor had misrepresented herself to have been free from diabetes at the time the policy was issued. The Court of Civil Appeals at Houston reversed, holding that the county court had no jurisdiction because the potential liability of the insurer exceeded the $1000 jurisdictional limit of the county court. 418 S.W.2d 708.

As stated, there was no cross-action filed, and therefore no pleadings seeking recovery of more than the jurisdictional limit of the county court. Defendant Fields’ plea to the jurisdiction alleged only that the insurer “might be held liable” for the statutory penalty and attorney’s fees under art. 3.62, Texas Insurance Code, V.A.T.S., in addition to the $500 face amount of the policy, and that reasonable attorney’s fees would exceed $500.

In holding that the amount in controversy for jurisdictional purposes included these unspecified amounts of “potential liability,” the decision of the Court of Civil Appeals is in conflict with Pecos & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S.W. 1103 (1915), as well as other cases holding that the amount in controversy is determined by the factual allegations of the plaintiff’s petition. The plaintiff’s pleadings sought recision of a $500 insurance policy, and this action was within the jurisdiction of a county court.

The Court of Civil Appeals relied on the following language in Great American Reserve Life Insurance Company v. Britton, 406 S.W.2d 901 (Tex.Sup.1966) :

“However, when the insurer files suit to cancel the policy before suit for the policy proceeds is filed, we hold that the entire liability of the insurer, both on the policy and under the statute, is put in issue, and the right of the insurer to require demand as a prerequisite to liability for attorney fees is waived.” 406 S.W.2d at 907.

The Britton case does not support the proposition that the entire potential liability of the insurer is the amount m controversy for jurisdictional purposes in a suit to cancel the policy. Britton did not involve a jurisdictional question, and the issue to which the foregoing language was directed was merely whether the insured was required to make a formal demand for attorney’s fees before filing a cross action for the value of the policy and the statutory liability. The holding should not be construed as affecting the established rules for determining the amount in controversy for jurisdictional purposes.

Because the decision of the Court of Civil Appeals conflicts with the Rayzor opinion by this Court, the judgment of the Court of Civil Appeals is reversed without granting the application for writ of error. Rule 483, Texas Rules of Civil Procedure. The cause is remanded to the Court of Civil Appeals for further proceedings consistent with this opinion.


text:
    Otis GREEN, Petitioner, v. W. E. GRACE MANUFACTURING COMPANY, Respondent.
    No. B-350.
    Supreme Court of Texas.
    Jan. 3, 1968.

      Hight, Bailey & Hight, Claire E. Bailey, Dallas, Maloney & Black, Thomas Black, Austin, for petitioner.
    Locke, Purnell, Boren, Laney & Neely, Larry M. Lesh, Louis Wilson, Dallas, for respondent.
   HAMILTON, Justice.

Petitioner, Otis Green, brought this action for damages for personal injuries sustained by him while acting in the scope of employment against the W. E. Grace Manufacturing Company, his employer. When the cause was originally filed in the District Court, Petitioner applied for a jury and paid the jury fee. Respondent was served with citation on the day of filing but inexplicably failed to answer on appearance date. Thereafter, Petitioner having waived the jury and the court having heard evidence of damages, default judgment was entered against Respondent for $7000.00 with interest and costs.

Four months after the default judgment was rendered, Respondent appealed by writ of error to the Court of Civil Appeals at Dallas and asserted two points of error. The first challenged the sufficiency of Plaintiff’s petition to support a default judgment and was overruled. The Court of Civil Appeals opinion has correctly disposed of this point. The second point complained that its right to trial by jury was abridged when Petitioner waived the jury in open court prior to trial. The Court of Civil Appeals sustained the second point and remanded the cause for trial on the issue of damages. 417 S.W.2d 71.

The following questions, therefore, are presented for determination. When one party demands a jury and timely pays the jury fee, is the right to a jury trial thus secured to the adverse party under Texas Rules of Civil Procedure, rule 220?

“When any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested. If so permitted, the court in its discretion may by an order permit him to withdraw also his jury fee deposit. * * * (Emphasis added).”

If not, does the adverse party by his mere absence and consequent failure to object to the withdrawal of the case from the jury docket, prevent such withdrawal? Whatever rights Respondent, Grace Manufacturing Company, had to a jury trial are conferred by Tex.Const. Art. I, § IS, and Art. V, § 10, Vernon’s Ann.St., and regulated by Tex.R.Civ.P. 220, and the cases construing same. While the right to a jury trial is by constitutional mandate to remain inviolate, the Legislature is also directed to pass such laws as maintain its efficiency. Tex.Const. Art. I, § IS. Such a statute, Tex.Civ.Stat. Art. 3072 (1879), the predecessor of Rule 220, provided:

“When one party has applied for a jury trial * * *, he shall not be permitted to withdraw such application without the consent of the parties adversely interested.” (Emphasis added).

The decisions construing this statute, the source of old Rule 220, fall basically into two classifications: first, those cases in which the party who affirmatively asserted his right to a jury and paid the jury fee, but who was absent at the time of trial and against whom a default or nihil dicit judgment was entered without submission to a jury of the issues; and second, those cases in which the defaulting party had requested nothing but to whose benefit the affirmative assertion of the adverse party inured.

In the first class it has been uniformly held that mere absence from the courtroom cannot be construed as a waiver and that neither the judge nor the opposite party have the authority to dispense with a jury without the assent of the party originally demanding it. Jerrell v. Jerrell, 409 S.W.2d 855 (Tex.Civ.App.1966, no writ); White Motor Co. v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1963, no writ); Barker v. Kidd, 357 S.W.2d 490 (Tex.Civ.App.1962, no writ); Panhandle & S. F. Ry. Co. v. Lawless, 94 S.W.2d 213 (Tex.Civ.App.1936, no writ); Finnell v. Byrne, 7 S.W.2d 139 (Tex.Civ.App.1928, no writ); Lacroix v. Evans, 1 White & W.Civ.Cas.Ct.App. 411 (Tex.Ct.App.1883). This result obtains not only because the defaulting party made an affirmative assertion of his rights, Tex.Const. Art. V, § 10, supra, but also from the language of the Rule itself which speaks only to the ability of the demanding party to withdraw the case and which indicates no method for the non-moving party to secure the withdrawal. In this regard the language of the current Rule has not changed since 1879.

The second class of early cases were decided on a strict interpretation of Tex.Civ. Stat. Art. 3072 (1879); Eastern Tex. Traction Co. v. Karner, 242 S.W. 252 (Tex.Civ.App.1922, no writ); Jones v. Hamby, 29 S.W. 75 (Tex.Civ.App.1895, no writ). In Jones v. Hamby, supra, the court after quoting Art. 3072 (requiring the consent of the adverse party to his withdrawal) said “As the plaintiff had demanded a jury, paid the jury fee, and the case had been properly placed on the jury docket, the defendants thereby, under the terms of the foregoing article, became entitled, as a matter of right, to a trial by jury.” The statute itself defined and delineated the right. Likewise, in Highsmith v. Tyler State Bank & Trust Co., 194 S.W.2d 142 (Tex.Civ.App.1946, writ ref’d) the language of Rule 220 was construed to limit the class of beneficiaries of the jury request and fee payment to those parties who were adversely interested to the demanding party.

It is clear then that the inviolate right to a jury trial is regulated by those Rules which specify its availability. In 1947 Rule 220 was changed from requiring consent of the adverse party to the withdrawal to requiring the interposition of an objection to the removal. The effect of this change is that the non-demanding party is no longer assured a jury trial by virtue of the request and payment by his adversary. The Rule now requires that some affirmative action be taken by all parties to insure themselves a jury trial. Thus, until an objection is registered to the withdrawal of a case from the jury docket, the non-demanding party has no right to have the case remain on that docket. It is the objection itself that establishes the right. The bases for such a prerequisite are the expedition of trials and the avoidance of the necessity of presenting the case to a jury with foregone conclusions.

We hold that a party, who does not timely demand a jury and pay the fee must object to the withdrawal of the case from the jury under Rule 220. The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

      . The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. * * *

      . In the trial of all causes in the District Courts the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.


author: MORRISON, Judge.

text:
    Imogene W. BEESON, Appellant, v. The STATE of Texas, Appellee. June M. WHEELER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 40747, 40748.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 31, 1968.
    Will Gray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Robert Scott, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense in each case is shoplifting; the punishment in each case, a fine of $100.00 and six months in jail. These cases are consolidated in the interest of brevity.

The facts show that both appellants, while shopping together in a department store, were observed by a security officer removing certain merchandise from the store’s counters, placing such merchandise in their respective purses, and leaving the store without paying for the merchandise. Immediately after their exit, they were accosted by the security officer and at his request, they returned to the store where they voluntarily opened their purses, revealing the purloined contents. Separate informations charging shoplifting were presented, and appellants were tried together.

Appellants’ sole and common ground of error is that “the trial court erred in consolidating both causes and trying both causes at the same time and before the same jury where neither appellant agreed to such consolidation and joint trial.”

Appellants’ trial was had on October 26, 1966, after the adoption of the new Code of Criminal Procedure, and appellants’ ground of error is therefore controlled by Article 36.09, Vernon’s Ann.C.C.P. No motion for severance was made, and there is no showing of prejudice to either appellant.

The judgments are affirmed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Richard W. VAUGHN.
    No. 40868.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Rehearing Denied Jan. 31, 1968.
    Dennis White, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stinson and Kerry FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Illinois.

At the hearing the State offered the executive warrant of the Governor of Texas, regular upon its face, authorizing the arrest and return of appellant to the State of Illinois upon demand of the Governor of that State to answer a charge of burglary pending against him.

Under many decisions of this court, a prima facie case authorizing the remand of the relator to custody for extradition was made out by the introduction in evidence, at the habeas corpus hearing, of the executive warrant of the Governor of Texas, regular on its face. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579, and the cases there cited.

There is no evidence in this record which would in any manner show that appellant’s arrest for extradition under the executive warrant was not in compliance with Art. 51.13 Vernon’s Ann.C.C.P.

The judgment remanding appellant for extradition is affirmed.