text:
    Margaret A. TALBERT, Individually and as Administratrix of the Estate of E. H. Talbert, Deceased, et al., Appellants, v. Maria Francisca HERRERA, Appellee.
    No. 13876.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1962.
    Chas. T. Haltom, Richard Pena, San Antonio, for appellants.
    Ronald Smallwood, Karnes City, for ap-pellee.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Bexar County, 37th Judicial District, on December 3, 1953, by Maria Francisca Herrera, a feme sole, and Santiago Herrera, against E. H. Talbert, Charles T. Haltom, and Maria E. Stickelbault, a feme sole, seeking to recover title and possession of seventeen acres of land, more or less, out of the Domingo Losoya tract, lying and being situated in Bexar County, Texas; and being fully described in the pleadings.

Plaintiff Maria Francisca Herrera’s “Second Amended Original Petition,” upon which the trial was based, contained all of the usual allegations of a trespass to try title action, and in addition, the following allegations, to-wit:

“On June 6, 1950, Owen W. Kilday, Sheriff of Bexar County, Texas, executed and delivered a Sheriff’s Deed to E. H. Talbert, as Grantee, purporting to convey the above described land to said Grantee by virtue of an Order of Sale issued to said Sheriff in Cause No. F-57612 in the 57th District Court of Bexar County, Texas, styled ‘Maria E. Stickelbault, et al. v. Maria Francisca Herrera,’ and which Order of Sale was issued in said cause by virtue of a judgment rendered in said cause on April 24, 1950. Said deed is recorded in Vol. 2851 on Page 13 of the Deed Records of Bexar County, Texas, to which reference is here made for the purpose of cancellation. Said Sheriff’s Deed is void and invalid and casts a cloud upon the title of the Plaintiff, and the same should be cancelled and the cloud cast thereby removed, for the following reasons :
“(a) Said judgment in said Cause No. F-57612 is void and invalid for the reason that one Santiago Herrera was not a party to said suit, and said suit, being a partition suit, could not be prosecuted to a valid final judgment in the absence of said Santiago Herrera being a party to said suit and bound thereby, he being the record owner of a one-half undivided interest in said land prior to the filing of said suit and at all times thereafter to and including the date of the filing of this suit.
“(b) Said judgment in said Cause No. F-57612 is further void and invalid for the reason that it is not a final judgment, and therefore cannot support nor lend validity to an Order of Sale issued thereunder.”

In a trial before the court without a jury the trial court decreed that Maria Francisca Herrera recover from the substituted defendants, Margaret A. Talbert, Individually and as Administratrix of the Estate of E. H. Talbert, Deceased, Eugene W. Tal-bert, Jack H. Talbert and Mrs. Louise Tal-bert Winkler, a one-half undivided interest in the seventeen acres, together with the sum of $500.00 as damages, and refused all other relief asked by the parties. In rendering the judgment, the trial court necessarily held that the sale of the seventeen acres by the Sheriff, as well as the judgment in Cause No. F-57612 in the 57th District Court, was void and of no effect. The substituted defendants have prosecuted this appeal.

There is but one question in this case, and that is, whether the judgment in Cause No. F-57612 is absolutely void for want of the necessary and indispensable party, viz., Santiago Herrera. The trial judge made findings of fact and conclusions of law, and as no statement of facts was filed herein, the facts must be accepted as found by the trial court.

From these findings, it is shown that by a judgment rendered on December 15, 1949, in the 57th District Court in Cause No. F-45028, it was decreed that the seventeen acres involved herein was owned as follows: Maria Francisca Herrera and Santiago Herrera a one-half undivided interest, Maria E. Stickelbault a %ths undivided interest, and Charles T. Haltom a ⅛⅛ undivided interest. The finality of this judgment is not questioned in any way, and the ownership of the seventeen acres was settled as above stated.

The trial court’s findings of fact Nos. 7 to 14 are as follows:

“7. On April 23, 1950, a judgment was rendered in cause No. F-57,612, in the 57th District Court of Bexar County, Texas, styled Maria E. Stickelbault, et al. v. Maria Francisca Herrera, being a partition suit to partition the land involved in this suit. Maria Francisca Herrera, the plaintiff in this suit, was the only person named as defendant in the plaintiffs’ petition in said cause No. F-57,612, and she was the only person cited in said cause as a defendant. At the time of the rendition of said judgment said Santiago Herrera, referred to in the previous findings, was the record owner of an undivided interest in said land, both by virtue of the deed from Joseph Stickelbault to Maria Francisca Herrera and Santiago Herrera, and the final judgment in said cause No. F-45,028. Said Maria Francisca Herrera and Santiago Herrera jointly filed an original answer in said partition suit. Said answer did not seek any affirmative relief, nor constitute a cross-action or counter-claim against the plaintiffs. Santiago Herrera did not file an intervention petition in said partition suit.

“8. An order of sale issued in said cause No. F-57,612, directing the sheriff of Bex-ar County, Texas, to sell said land, pursuant to the terms of the judgment therein, and to pay over the proceeds of said sale to the plaintiffs and ‘defendants’, as their interests were established by the partition judgment (which adjudged Santiago Herrera to be the owner of a ⅝⅛ undivided interest in the land). On June 6, 1950, Owen W. Kilday, the sheriff of Bexar County, Texas, sold said land to E. H. Talbert, and on said date executed and delivered to him a sheriff’s deed, purporting to convey said land to said Talbert, such sheriff’s deed being recorded in Book Volume 128, pages 13-15, of the Deed Records of Bexar County, Texas. The purchase price paid by said E. H. Talbert at said sheriff’s sale was $613.64. Said sheriff paid over to Maria E. Stickelbault and Charles T. Haltom one-half of such purchase price, $306.82, and deposited the remaining $306.82 in the registry of the court.

“9. After said sheriff’s sale, E. H. Tal-bert was placed in exclusive possession of the land by the sheriff of Bexar County,, Texas, and said Talbert, until the time of his death, and the other defendants herein, after his death, remained in exclusive possession of said land and are still in exclusive possession thereof, to the exclusion of plaintiff.

“10. After said sheriff’s sale this suit was instituted by Maria Francisca Herrera and Santiago Herrera, as plaintiffs, against E. H. Talbert, as defendant, to cancel said sheriff’s deed to E. H. Talbert, to adjudge the judgment and sale in said cause No. F-57,612 null and void, to recover the title and possession of said land, and to recover damages from the defendant, E. H. Talbert.

“11. Said defendant, E. H. Talbert, died intestate in Bexar County, Texas, on November 4, 1958. Administration proceedings are pending upon his estate, being cause No. 100,919 in the County Court of Bexar County, Texas. Margaret A. Tal-bert, the wife of said decedent, is the duly appointed Administratrix of said estate. The defendants, Eugene W. Talbert, Jack H. Talbert, and Mrs. Louise Winkler,, (whose husband is the defendant, C. W. Winkler) are the only heirs of E. H. Tal-bert, and they, together with said Margaret-A. Talbert, are the only persons inheriting-from said E. H. Talbert. A suggestion of the death of E. H. Talbert was then filed' herein. The plaintiff, Maria Francisca Herrera, was granted scire facias and leave-to file an amended petition making the wife and heirs of E. H. Talbert parties defendants to this suit. Thereafter, the plaintiff,. Maria Francisca Herrera, having acquired-, all of the interest of Santiago Herrera in the property involved, filed her second amended original petition against all of the defendants, aforesaid, and said defendants, were cited and made their appearances herein.

“12. After the filing of this suit, and on' March 29, 1955, Hart McCormick, the District Clerk of Bexar County, Texas, issued-a treasury warrant payable to said Maria Francisca Herrera and Santiago Herrera. for the sum of $306.82, in said cause No. F-57,612, being the amount of money remaining on hand with said district clerk as the proceeds of the sheriff's sale above referred to, and which treasury warrant was endorsed and cashed by said Maria Francisca Herrera and Santiago Herrera.

“13. The plaintiffs herein, (and Maria Francisca Herrera alone, as plaintiff, after Santiago Herrera deeded his interest to her) have tendered and at all times stood ready and willing to refund and repay said sum of $306.82 or such other sums as the court might adjudge, to the defendants, and have offered and stood ready and willing to do all equity which the court might require, as shown by their pleadings herein.

“14. The plaintiff, Maria Francisca Herrera, adjudged by the judgment herein to be the owner of one-half undivided interest in the land involved, and awarded a recovery of such one-half undivided interest, has suffered damages, as a result of having been wrongfully excluded from possession of the land by the defendants, in the sum of $500.00, after giving defendants credit for the sum of $306.82 received by Maria Francisca Herrera and Santiago Herrera from the district clerk, as aforesaid, and after giving the defendants credit for the valuable improvements made by them on the land involved.”

Based upon these findings the trial court concluded as a matter of law, as follows:

“3. Santiago Herrera was a necessary and indispensable party to cause No. F-57,612 in the 57th District Court of Bexar County, Texas (the partition suit), he then being the record owner of an undivided interest in the land involved.
“4. Said Santiago Herrera was not made a party and never became a party to said cause No. F-57,612.
“5. The judgment in cause No. F— 57,612 in the 57th District Court of Bexar County, Texas, as well as the sheriff’s sale and sheriff’s deed to E. H. Talbert thereunder, are void.”

The trial court erred in finding that Santiago Herrera was not a party to Cause No. F-57612, and that therefore the judgment and sheriff's deed were void. Santiago Herrera joined Maria Francisca Herrera, a named defendant, in filing an answer in Cause No. F-57612. He was a necessary and indispensable party to this suit. He was awarded the same interest in the seventeen acres as had already been awarded to him in Cause No. F-45028. He and Maria Francisca Herrera accepted their share of the proceeds of the sheriff’s sale. It is true that they did this after they had filed the suit at bar, and in an amended pleading filed thereafter tendered back such proceeds. However, Santiago Herrera, having made his appearance in the case by filing an answer, and having had his interest which had been previously adjudged set aside to him, and having accepted his share of the proceeds derived from the sale of the land, will not now be heard to say that he was not a party to the suit. By filing an answer he made himself a party to the suit. 6 Tex.Jur.2d p. 12, Appearance, § 9. It is contended that he was not named as a defendant in plaintiff’s petition. He was, a necessary and indispensable party to the-suit, and under the provisions of Rules Nos. 67 and 90, Texas Rules of Civil Procedure, we may presume that this defect in the pleadings was either corrected or waived by the parties. When Santiago Herrera accepted and retained his share of the proceeds of the sheriff’s sale, he estopped himself to contend that he was not a party to the suit. Marshall v. Lockhead, Tex.Civ.App., 245 S.W.2d 307.

The judgment is reversed and the causo remanded.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Mrs. Agnes McINTIRE et vir, Appellants, v. Felix James SAWICKI et ux., Appellees.
    No. 3665.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 26, 1962.
    Rehearing Denied Feb. 23, 1962.
    Bernard Kay and Robert L. Jones, Houston, for appellants.
    DeLange, Hudspeth & Pitman, Houston, for appellees.
   WALTER, Justice.

Mrs. Agnes Mclntire, joined by her husband, J. O. Mclntire, filed suit against Felix James Sawicki and wife Dan Sawicki to foreclose a judgment lien against a house and lot in the City of Houston.

In a non jury trial, judgment was rendered for defendants. The Mclntires have-appealed contending the court erred (1) in holding that the Sawickis were bona fide purchasers, (2) in holding the abstract of judgment was insufficient to fix a lien against said property, (3) in failing to find the acknowledgment defective in the deed' from Monger to Sawicki, (4) in failing to-hold certain requests for admissions confessed because of a defective affidavit to the reply, (5) in finding that the $750.00 paid by Richardson to Mclntire was part payment of said judgment, and (6) in finding that the property in controversy constituted the homestead of Frank Monger and wife.

Before this case was filed, the Mclntires. filed suit against Frank Munger and John H. Richardson, seeking to recover against Munger on a promissory note and against Richardson as transferee of certain stock from Munger without having complied with the Bulk Sales Act. Richardson filed a plea, of privilege which was sustained. Thereafter, on November 23, 1951, judgment was rendered for the Mclntires against Frank Munger for $6,997.66.

On April 2, 1952, the Mclntires collected $750.00 from Richardson which amount was to be applied on the judgment. On May 29, 1952, an abstract of judgment was issued ■on the Mclntire judgment against Frank Munger for $6,997.66, which revealed no ■credit on the judgment. The abstract was indexed under the name of “Munger, Frank”, as the defendant in judgment and Mrs. Agnes Mclntire and J. O. Mclntire •as plaintiffs. On May 10, 1956, Frank Monger and wife conveyed the property to the Sawickis. Said property had theretofore been conveyed to Frank A. Monger and wife Annie Monger. The Mclntires’ judgment was against Frank Munger. As shown by his birth certificate Frank Mung-■er’s correct name is Frank Augustus Monger. He was married under the name of Monger, his children are known as Monger, they are enrolled in school under the ■name of Monger and their birth certificates are in the name of Monger. Mrs. Monger testified that she had never used the name Munger. However, it is conceded that the judgment debtor and owner of the property in controversy are one and the ■same man. The name appearing in the abstract of judgment, however, was not ■the name of the owner of the property.

Among other things, an abstract of judgment must show the amount of the judgment and the balance due thereon and the name of the defendant in such judgment. Art. 5447, Vernon’s Annotated Civil Statutes. We hold the abstract of judgment did not create a lien against the property in controversy (1) because the judgment was against “Frank Munger” and the record title to the property was in the name of Frank A. Monger and wife, Annie Monger, and (2) the judgment failed to show the $750.00 credit at the time it was filed for record, as required by statute.

In his findings of fact, the court concluded the property in controversy was the homestead of Frank Monger and wife. This finding is supported by evidence of probative value. This is another reason the abstract of judgment did not create a lien against the property.

The Mclntires filed a request for admissions under rule 169, Texas Rules of Civil Procedure. Sawicki’s attorney filed a reply to such request wherein he admitted eight of the requested matters and denied ten and stated he was unable to admit or deny one of the matters requested. The Mclntires filed a motion to have all of such requests deemed admitted against the Sa-wickis because the affidavit to such reply was limited, “to the best of the knowledge and belief of affiant.” After the motion was filed, the court permitted Mrs. Sawicki to make and file an additional affidavit wherein she made a proper affidavit in so far as all of the replies to plaintiffs’ request for admissions are concerned except Nos. 12, 13, 14 and 15. A reply to a request for admissions made on information and belief, or to the best of the knowledge and belief of the affiant, is not sufficient under Rule 169, T.R.C.P. See Durrett v. Boger, Tex.Civ.App., 234 S.W.2d 898 (No Writ history.) We hold that Sawickis’ replies Nos. 12, 13, 14 and 15 to the request for admissions were not properly verified. These replies were made in answer to requests for admissions seeking to establish the fact that Mr. Sawicki was acquainted with Frank Monger prior to January 1953; that Sawicki was acquainted with Frank Monger and continued to be well acquainted with him until 1956; that Sawicki knew that Frank Monger sometimes used the name Frank Munger and that Sawicki knew that Frank Monger was also known as Frank Munger. However, in the court’s findings of fact, he concluded that Sawicki and his wife knew prior to May 10, 1956, (the date of their purchase of the property in controversy), that Frank A. Monger was also sometimes known as Frank Mung-er. We hold the appellants have failed to discharge their burden of showing from the record as a whole that the court’s failure to deem the matters admitted amounted to such a denial of appellants’ rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434, T.R.C.P.

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    James E. PARKER et al. v. John W. McKINNON, Jr. et al.
    No. 7094.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1962.
    Rehearing Denied Feb. 19, 1962.
    Rogers, Eggers, Sherrill & Pace, Wichita Falls, for appellants.
    Douglass, Thompson & Douglass, Pampa, for appellees.
   DENTON, Chief Justice.

This suit was brought by appellants against appellees in the form of an action in trespass-to-try-title to an undivided one-half mineral interest in a section of land ia Gray County, Texas. The trial was before the court without a jury. Judgment was rendered that appellants take nothing and that appellees be awarded title to the mineral interest in controversy. All parties claim under a common source of title. Appellants claim title to the minerals through a correction deed from John W. McKinnon and wife, Lillian A. McKinnon, through their predecessors in title, dated December 18, 1911. Appellees claim title through a prior deed from the same John W. McKin-non dated March IS, 1907.

On March 15, 1907 J. W. McKin-non, stipulated to be the one and same person as John W. McKinnon, executed a warranty deed to J. W. Davidson purporting to convey the following described land: “Section 1, Certificate 2/216, Pat. 342, Vol. 49, G. G. & S. F. Ry. Co. Survey, Abstract 510, containing 640 acres more or less.” The last sentence in this deed read as follows:

“The Grantor hereby retains, forever, a half interest in all oil, gas, mineral or liquid substance of commercial value if found in the above described land, and no statute of limitation shall ever run against his right to this.”

On December 18, 1911 John W. McKin-non joined by his wife, Lillian A. McKin-non, executed a quit claim deed to the said J. W. Davidson. This deed read as follows :

“ — Quit-Claim Deed—
“This Indenture Witnesseth, that the grantors, John W. McKinnon and Lillian A. McKinnon, hig wife, of the City of Chaicago, in the County of Cook and State of Illinois for the consideration of One Dollar ($1.00) and other good and valuable considerations, Convey and Quit-Claim to J. W. Davidson of the County of Gray and State of Texas all interest in the following described Real Estate, to-wit:
“All that certain Section No. One (1), Certificate No. 2/216, Patent 342, Volume 39, G. C. & S. F. Ry. Co. Survey, in Gray County, Texas, Abstract No. 510, containing six hundred and forty (640) acres more or less, situated in said County of Gray and State of Texas.
“This deed is given for the purpose of correcting an error in a former deed, executed by the Grantor herein to the same Grantee, dated March 15th, 1907, and recorded in Volume 12, Pages 56-57-58 of the Deed Records of Gray County, Texas, wherein the State and County were omitted from the legal description of the property conveyed, releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State of Texas.
“Dated, this Eighteenth day of December A.D.1911.
“John W. McKinnon
“Lillian A. McKinnon”

It will be noted that in addition to inserting the county and state, the second deed corrected the patent volume number from 49 to 39 and corrected the survey designation from “G. G. & S. F. Ry. Co.” to “G. C. & S. F. Ry. Co.” and added “in Gray County, Texas” immediately after the corrected survey designation. The mineral reservation by the grantor did not appear in the correction deed.

The question to be determined here is whether the correction deed of December 18, 1911 conveyed the undivided one-half mineral interest which had been retained by McKinnon in the prior deed. It is appellants’ position that the correction deed did not refer to the prior deed in a sufficient manner to define or limit the grant set out in the prior deed. They urge that the correction deed supersedes the prior deed, which they contend is at least voidable because of the insufficient description, thus granting all interest including the undivided minerals held by McKinnon. The ap-pellees contend that the correction deed was executed only for the purpose of correcting the description in the prior deed, and that the two deeds are so related they are to be considered together.

There are no allegations of fraud, accident or mistake, and reformation of the correction deed is not sought. We are therefore to look to the provisions of the instruments themselves to determine the intentions of the parties thereto. Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617. In Harris v. Windsor, 134 Tex. 324, 294 S.W.2d 798, Chief Justice Hickman used the following language:

“We have long since relaxed the strictness of the ancient rules for the construction of deeds, and have established the rule for the construction of deeds as for the construction of all contracts,- — that the intention of the parties, when it can be ascertained from a consideration of all parts of the instrument, will be given effect when possible. That intention, when ascertained, prevails over arbitrary rules. Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360; Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442.”

By its own terms, the December 18, 1911 deed was executed “for the purpose of correcting an error in a former deed” which was identified as the prior deed between the same parties. Although the description in the earlier deed was defective in some respects other than the omission of the state and county, these errors (misspelling of the survey designation and the incorrect volume number of the patent) were also corrected in the subsequent deed. Neither party contends, and we so agree, that the correction deed is ambiguous. It clearly states the purpose for which it was executed. In our opinion the language clearly indicates the correction deed was simply intended to correct the description of the land conveyed by the prior deed. The omission of the mineral reservation in the correction deed, when considered with the language of the deed itself, does not lead to the conclusion that the correction deed was intended to change the parties’ rights or the estate conveyed. Humble Oil & Refining Co. v. Mullican, 144 Tex. 609, 192 S.W.2d 770; Borden v. Hall, 255 S.W.2d 920 (no writ history); Thorndale Mercantile Co. v. Continental Gin Co. (Civ.App.) 217 S.W. 1059 (error refused); Sanborn v. Crowdus Bros. Co., 100 Tex. 605, 102 S.W. 719. These cases cited above, in effect, are applying the doctrine of relation back which our courts have held is applicable to a deed which corrects an erroneous description. The correction deed is looked to in aid of the description given in the prior deed, and as between the parties thereto the second deed relates back and becomes effective as of the date of the first deed. Polk v. Carey (Civ.App.) 247 S.W. 568 (error dismissed); Thorndale Mercantile Co. v. Continental Gin Co., supra; Doty v. Barnard, 92 Tex. 104, 47 S.W. 712.

When these two instruments are considered together it is the clear intention of the parties, and we so hold, that McKinnon the grantor effectively reserved an undivided one-half mineral interest in the section of land conveyed.

We therefore conclude the trial court correctly held the mineral interest in controversy was reserved by the two deeds in question. Judgment of the trial court is affirmed.


author: RICHARDS, Justice.

text:
    Chester R. MORRIS, Appellant, v. Q. C. TAYLOR, Appellee.
    No. 10933.
    Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1962.
    Rehearing Denied Feb. 21, 1962.

      Chester R. Morris, pro se.
    Taylor & Tyler, Austin, for appellee.
   RICHARDS, Justice.

This is another suit in the seemingly endless litigation initiated in Morris v. Nowotny et al., Tex.Civ.App., 323 S.W.2d 301, error ref., N.R.E., cert. den. 361 U.S. 889, 80 S.Ct. 164, 4 L.Ed.2d 124.

Suit was brought by Chester R. Morris, appellant, against Q. C. Taylor, appellee, for the recovery of damages for malicious prosecution as a result of alleged false testimony given by appellee as attorney for Anthony P. Rousos, one of the defendants in University of Texas et al. v. Morris, Tex., 344 S.W.2d 426, at the hearing on application for temporary injunction filed by Rousos to restrain appellant from proceeding further in the suit filed by appellant against Rousos in the United States District Court of New Mexico until final adjudication of the consolidated suit then pending in the 53rd District Court of Travis County, Texas, in which appellant was plaintiff and the University of Texas and others, including Rousos, were defendants.

Both appellant and appellee filed motions for summary judgment under the provisions of Rule 166-A, Texas Rules of Civil Procedure. Both motions for summary judgment were submitted upon the pleadings and affidavits of the respective parties supporting their respective motions. The Court having taken judicial notice of its records in the consolidated cause in which the temporary injunction was granted against appellant and in favor of Rousos, who was represented by appellee as his attorney of record, sustained appellee’s motion and rendered judgment that appellant take nothing by his suit, from which adverse judgment this appeal has been perfected. Appellant’s motion for summary judgment was denied.

Appellant, who is not a lawyer, has appeared pro se in this suit. In his petition appellant sues appellee for $2,000.00 damages for malicious prosecution alleging that appellee made false sworn allegations in the prosecution for temporary injunction which he filed on behalf of his client Rousos in the consolidated cause above referred to, which false allegations were made maliciously and without probable cause in that appellee falsely alleged that a multiplicity of suits had been instituted by appellant in various courts, both State and Federal in the State of Texas and in the Federal Court in the State of New Mexico. It is clear from the sworn testimony of appellee as a witness on behalf of his client Rousos at the hearing on the application for temporary injunction, which testimony is attached to appellee’s affidavit, that no false statements were made by appellee. It is further apparent that when appellee so testified on behalf of his client Rousos he was acting in good faith in asserting his client’s defenses in the litigation to which his client was a party, and even if appellee’s testimony was erroneous, which it is not, there is no proof in the record that such testimony was given through malice or in bad faith.

If appellant’s petition stated a cause of action for damages based upon the alleged false or perjured testimony which the Trial Court held that it did not and with which conclusion we are in agreement, it is fundamental that in the absence of a statute to the contrary, an unsuccessful litigant who has lost his case because of perjured testimony cannot maintain a civil action for damages against the person who commits the perjury. Morgan v. Graham, U.S.C.A. 10, 228 F.2d 625, 627, 54 A.L.R.2d 1290; 70 C.J.S., Perjury § 93. There is no statutory provision in Texas to the contrary. In addition, appellee’s testimony was privileged. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912.

Again, even if appellant’s petition stated a cause of action against appellee for damages for malicious prosecution, which it did not as held by the Trial Court with which conclusion this Court concurs, it is essential that in order to recover in an action for malicious prosecution the following essential elements or allegations must be both pleaded and proved: (1) the commencement of a civil judicial proceeding, (2) its legal causation by the defendant against the plaintiff who was the defendant in the original proceedings, (3) its bona fide termination in favor of the plaintiff, (4) the absence of probable cause for such proceeding, (5) the presence of malice, and (6) damages conforming to legal standards resulting to plaintiff. Mosley v. Harkins, Tex.Civ.App., 147 S.W.2d 309, 310, no writ history; 54 C.J.S. Malicious Prosecution §4.

There is no allegation or proof that any civil or other proceeding was instituted against appellant by appellee as plaintiff in any court, State or Federal. There is no allegation or proof that appellee caused the commencement of any civil proceeding in any court against appellant unless the filing of the application for temporary injunction against appellant by appellee as attorney for Rousos who was a defendant in the consolidated cause in which appellant was plaintiff could be deemed the commencement of a civil judicial proceeding by appellee against appellant. Moreover, the termination of the proceedings for temporary injunction filed by appellee as attorney for Rousos was not in favor of but adverse to appellant (344 S.W.2d 426).

In a summary judgment proceeding the burden is upon the movant to prove clearly his right to summary judgment as a matter of law. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85. All doubt as to the existence of a genuine issue as to a material fact must be resolved against the movant and the Court accepts as true all evidence of the opposing party which tends to support his contention. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931.

After having carefully considered the entire record, the pleadings and the various affidavits filed by each of the parties in support of their respective motions for summary judgment, it is our opinion that there was no genuine issue of material fact and no cause of action being properly alleged under the pleadings in favor of appellant for damages for either malicious prosecution caused by appellee or which resulted from alleged false testimony given by ap-pellee in a judicial proceeding, the Trial Court properly granted appellee’s motion for summary judgment against appellant resulting in a judgment that appellant take nothing by his suit against appellee. The action of the Trial Court in denying appellant’s motion for summary judgment against appellee was correct as a matter of law.

All of appellant’s points of error are overruled arid the judgment of the Trial Court is affirmed.

Affirmed.

      . Morris v. Johnson, Tex.Civ.App., 336 S.W.2d 817 error ref., N.R.E.; University of Texas et al. v. Morris (Tex.Sup.), 344 S.W.2d 426, reversing Tex.Civ.App., 337 S.W.2d 169; Morris v. Johnson, Tex.Civ.App., 348 S.W.2d 228, error ref., N.R.E.; Morris v. University of Texas et al., Tex.Civ.App., 348 S.W.2d 644; judgment of Court of Civil Appeals reversed and appeal dismissed by the Supreme Court of Texas in opinion rendered January 10, 1962; 352 S.W.2d 947; Morris v. Hargrove, Tex.Civ.App., 351 S.W.2d 666, error ref., N.R.E.; Morris v. Rousos, Tex.Civ.App., 354 S.W.2d 591; and Morris v. Hoerster and Middleton, Tex.Civ.App., 348 S.W.2d 642, error ref., N.R.E. all eases having been decided adversely to Morris except the case last cited.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. Robert YOUNG, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Lawrence L. Pedley, Legal Section, Dept, of Highways, Frankfort, for appellant.
    J. Smith Barlow, Jr., Bardstown, for ap-pellee.
   MOREMEN, Judge.

This is an appeal from the judgment of the Nelson Circuit Court which affirmed the action of the Board of Claims in awarding to appellee, Robert Young, the sum of $7,559.05 as damages for injuries received as the result of negligence on the part of appellant, Department of Highways, Commonwealth of Kentucky.

Several years prior to the accident the Department of Highways had assumed responsibility for maintenance of a road designated as Ky. 733. In June 19S8, a portion of this highway was in the process of being resurfaced with asphalt by the firm of Geoghagen & Mathis. Their contract was for surfacing alone — shoulder or other incidential work was not required. It was stipulated by the parties that: “The State of Kentucky and the Department of Highways of the State of Kentucky had full charge of its construction and maintenance at the time of the accident and all times since 1953.”

On June 23, 1958, appellant was driving his car in the daytime on the correct side of the road along this portion of the highway (which was open to traffic) when suddenly the road under him caved in, his car was propelled to his right down an embankment, which was about twenty-five feet in height, and came to rest about fifty feet from where the edge of the road had caved in. He testified:

“I remember of it turning over twice and when I came to I was laying in the mud and water on my face when I started raising up and my right leg was paralyzed and I pulled on up and laid on the car seat. It had throwed the seat out of the car and I laid on the car seat for a little bit and seemed like I was getting worse all the time and I was scared to death and I crawled back out on the road and I still didn’t know just what happened, what caused me to turn over, and when I crawled up there,
I crawled up right by the side of this hole where it caved in and I could see where my car had pulled, or the left front wheel had skidded on the road diagonal like, I’d say a foot or foot and a half, when the bank caved in on the right hand side.”

Also:

“It looked like it had washed out under — you know, just dipped in under the road surface and the blacktop was. over this washed out under it and it looked like the blacktop was out over it. and the way it caved in, it caved in-, straight down and the hole was about,. I’d say, 4(4 feet deep in this fill.”

It was difficult to observe the condition of the fill from the road at the point it caved in because tall weeds that grew to the-very edge of the blacktop concealed it. However, two months before the accident an employee of the Department of Highways had discovered the condition and' recommended to the maintenance supervisor of the Department that it be remedied. Again just a few days before the accident the same employee reminded the supervisor that the slide should be repaired.

Appellant cites from 40 C.J.S. Highways § 256, p. 301, the following language:.

“Those in control of roads under repair are not charged with an insurer’s liability, and where they have exercised reasonable care to safeguard the traveling public so far as circumstances require or permit, they are absolved from liability for damages sustained,”

and relies upon similar language in Commonwealth v. Dever, 284 Ky. 150, 143 S.W.2d 1065; Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406; Jackson’s Adm’r v. Rose, 239 Ky. 754, 40 S.W.2d 343; and argues that since the Department of Highways was engaged at the time of the accident in supervising and repairing the road and fill, these acts in themselves fulfilled the Department’s duty to exercise ordinary care.

We assume no court has ever held that those in control of roads are insurers of the safety of the traveling public but, as pointed out in the same paragraph from C.J.S. cited above, those charged with 'the maintenance of highways are under a duty to safeguard the traveling public while the highway is being repaired and anyone making repairs is under duty to observe proper precautions by the erection of suitable barriers or warning devices. It is certain from proof in this case that appellee had no knowledge of the defect in the highway and was not warned of the danger and the Department of Highways did have such knowledge. This was not proper care.

Appellant next states that it is within common knowledge that a new blacktopped project is dangerous until it has been fully completed and asks the court to take judicial notice of that fact. It states that a road is raised from the shoulder by application of new blacktopping, that the pressure of heavy machinery causes a slide to develop and the new edges are often crumpled until shoulders have been built up, and adds that if appellee had exercised a proper degree of care he would have driven his car further from the edge of the road. We believe the driver on a newly resurfaced road has the right to assume that he may drive in safety on all of the blacktopped portion unless he has been warned by appropriate devices to stay off that portion of the road. Here again we call attention to the fact that the ground had slid out from underneath the blacktop. This was known to the Department of Highways and still appellee was not warned of the condition. We believe the point requires no further discussion.

Appellant next complains that in paragraph Nos. 1, 2, 3 and 4 of the complaint, appellee alleged that the Department of Highways was negligent in connection with Ky. Highway No. 733, and in paragraph No. 5 he alleged the accident happened on Ky. Highway No. 766, and as the evidence showed that the accident happened on Ky. Highway No. 733, appellee had therefore never proved the cause of action which had been pleaded. This Sth designation was obviously a typographical error and a harmless one. See Clay CR 61.01 and. comments.

Finally, it is insisted that the judgment be reversed for this reason: Appellee filed his complaint with the Board of Claims asking damages for loss of earnings since the accident in the sum of $2900.00. The Board awarded the sum of $4,309.20 on this account, the amount proved, but appellee did not amend his complaint to conform with the proof and therefore the judgment was not supported by the pleadings. CR 15.02 grants to a court the broadest discretion in permitting pleadings to be amended to conform to the evidence. It also provides when issues not raised by the pleading are tried by express or implied consent of the parties, they should be treated in all respects as if they had been raised in the pleading. At the trial before the Board appellant did not object to the introduction of evidence as to the full amount of damage appellee suffered as a result of the loss of earnings. So far as the record shows no objection was made before the Board concerning this phase of the case, so we are compelled to the conclusion that the parties treated this aspect of the damages as if the entire amount had been pled. In Marlowe Construction Co. v. Jacobs, Ky., 302 S.W.2d 612, where special damages were not properly pled, we said:

“Defendant contends that two items of damage, each for $150, were improperly allowed by the jury. With respect to the first, involving the cost of removing rock, this item of damage was not pleaded. However, evidence with respect thereto was introduced without objection by the defendant on the ground that it had not been pleaded. We believe this matter of damage was tried under the provisions of CR 15.02, and was properly submitted to the jury.”

In appellant’s “Statement of Appeal and Exceptions to Judgment of the Kentucky Board of Claims,” the Depart-ment had only this criticism:

“A. That the finding of fact in the judgment of the Kentucky Board of Claims is not supported by the evidence in this action.
“B. That the finding of fact in said judgment does not support the award granted by the Kentucky Board of Claims.”

The circuit court pointed out in his judgment: “The appellants have not filed any brief with this court, nor any statement of points and authorities, nor have their counsel made any appearance in this proceeding. Notwithstanding this, the court has carefully reviewed this entire record.” Therefore, appellant for the first time has raised this question in the appellate court which is too late. Tassone v. Goodin-Barney Coal Co., 209 Ky. 84, 272 S.W. 12.

Judgment affirmed.


author: STEWART, Chief Justice.

text:
    MARY HELEN COAL CORPORATION, Appellant, v. Ebbie GARRETT et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    James Sampson, William A. Rice, Sampson & Rice, Harlan, for appellant.
    Doyle B. Inman, Harlan, for appellees.
   STEWART, Chief Justice.

This is an appeal by the Mary Helen Coal Corporation (herein referred to as “the coal corporation”) from a judgment of the Harlan Circuit Court affirming an award of the Workmen’s Compensation Board which allowed Ebbie Garrett, appel-lee herein, benefits for total permanent disability as a result of silicosis. The question raised 'is whether appellee gave the coal corporation timely notice of his disability under KRS 342.316(2) as amended in 1956, effective August 1, 1956. That statute requires:

“ * * * that notice of disability shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur.”

There appears herein not too much dispute as to the vital facts in this case. A •summary of the evidence shows appellee began to suffer a shortness of breath in June, 1957. However, he continued his •employment in the mine of the coal corporation until June 27, 1958, at which time he quit, claiming he was compelled to do so •because he was permanently and totally •disabled. He went to a specialist in chest ■diseases on August 26, 1958, who diagnosed him as being disabled by silicosis to the •extent that he could not do any type of ■exertional work.

He gave notice to the coal corporation of his condition on September 2, 1958, which was shortly after he received the report of the specialist. The coal corporation refused to honor his claim and he filed his application for compensation on January 27, 1959. At a hearing before the Workmen’s Compensation Board he was awarded compensation based upon permanent total disability. This judgment, upon a review by the circuit court, was affirmed. This appeal is prosecuted from that ruling.

The coal corporation’s sole contention is that, under the statute above quoted, appel-lee should have given notice of his condition in June, 1957, or “as soon as practicable” thereafter and that his 15-month delay in giving notification is fatal to his claim.

The recent cases of Peabody Coal Co. v. Powell, Ky., 351 S.W.2d 172; Peabody Coal Co. v. Harp, Ky., 351 S.W.2d 170; Peabody Coal Co. v. Guthrie, Ky., 351 S.W.2d 168; and Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167; are determinative of this case. In all these we held that before notice is required the employee must have a disability from an occupational disease which impairs his capacity to perform his work and also the employee must know, or should know by the exercise of reasonable care and diligence, that he is suffering from the disease. That is to say, he must not only have knowledge in respect to his having the occupational disease, but his condition must cause him to be disabled to the extent that it affects his ability to work.

According to the record appellee became disabled for work because of his occupational disease in June, 1958. He was examined by a doctor on August 26, 1958, and very shortly thereafter informed appellant of his disability. We conclude ap-pellee’s notice to the coal corporation of his disability was timely.

Wherefore, the judgment is affirmed.


author: BIRD, Judge.

text:
    Charles E. McDONOGH, suing by his Next Friend and Father, Charles B. McDonogh, et al., Appellants, v. Robert P. SCHNEIDER, Sr., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.

      Herbert C. Howard, James H. Frazee, Louisville, for appellants.
    Thomas L. Ray, Louisville, for appellees.
   BIRD, Judge.

Charles E. McDonogh drove his father's car south on Third Street in the City of Louisville, Kentucky. Robert P. Schneider, Jr., drove his car north on the same street at the same time. The two cars collided as McDonogh undertook to turn left at an intersection into the University of Louisville.

The McDonoghs, father and son, sued the Schneiders, father and son, for damages and charged that young Schneider was guilty of negligence in the operation of his car and thereby caused the collision and resulting damages. The Schneiders, father and son, answered, denied the charges of negligence and charged that the negligent driving of young McDonogh caused the collision and resulting damages. The younger Schneider filed a counterclaim against the McDonoghs, father and son, seeking to recover damages to his automobile.

The case went to trial before a jury on March 15, 1959. After the McDonoghs had closed in chief and after Robert P. Schneider, Jr., had been examined on the defendants’ side, the court on his own motion dismissed the jury and continued the case.

The Schneiders, father and son, then filed a motion for summary judgment under Chapter 56 of the Rules of Civil Procedure and with that motion they filed a transcript of the testimony taken on the trial by jury,

The trial court sustained the motion in part and dismissed the McDonoghs’ actions against the Schneiders.

The counterclaim of young Schneider was then tried and submitted to a jury who found for Schneider in the sum of $676.71. Judgment was entered in conformity with the verdict. The McDonoghs appeal from both judgments.

On appeal it is contended that KRS 29.306 requires a de novo trial when the jury has been discharged without making' a verdict and that the trial court erred in disposing of the case by summary judgment. On this point we need only to say that KRS 29.306 is not in conflict with the operation of rules pertaining to summary judgment in Chapter 56 of the Rules of Civil Procedure,

Appellant does not show or undertake to show a “genuine issue as to any material fact,” which might render the summary judgment erroneous and our examination of the record discloses none. Under these conditions we must conclude that the trial judge’s disposition of the case by summary judgment was proper.

Appellants say generally that the issues should have been submitted to the jury under instructions approved in Walton v. Grant, 302 Ky. 194, 194 S.W.2d 366. The holding in that case and the instruction upon which appellants rely has been specifically condemned in Rankin v. Green, Ky., 346 S.W.2d 477.

Nothing is said about the judgment on the counterclaim. We assume therefore that appellants are not complaining about it.

Finding no error in either of the judgments they are affirmed.


author: CLAY, Commissioner.

text:
    Elwood DEWEESE, Appellant, v. William L. JONES, Warden Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    Elwood Deweese, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   CLAY, Commissioner.

Appellant’s petition for a writ of habeas corpus was dismissed by the circuit court on the ground that it failed to state facts upon which relief could be granted.

The petition itself states only that the petitioner is illegally restrained in the state penitentiary under a commitment issued by the Warren Circuit Court sentencing him to life imprisonment for the crime of armed robbery, which is in violation of his constitutional rights under the Fourteenth Amendment to the Constitution of the United States. The latter legal conclusion is insufficient to show petitioner’s detention is illegal, or the judgment of conviction was void, or the court lacked jurisdiction. See Commonwealth v. Gresham, 196 Ky. 27, 244 S.W. 66.

If we consider appellant’s brief filed in the circuit court as part of the petition, we find the statement that he entered a plea of guilty upon the promise of an officer of the Commonwealth that he would receive a 10 year sentence. This alleged fact is not shown by the record of the original proceeding. Even if it were true, it would not authorize release from confinement in a habeas corpus proceeding. Owen v. Commonwealth, Ky., 280 S.W.2d 524.

The judgment is affirmed.


text:
    Diamond HOLT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    Joseph A. Montgomery, H. K. Spear, Somerset, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Diamond Holt, was convicted in the Casey Circuit Court of the crime of forgery and sentenced to confinement in the penitentiary for a period of two years.

Appellant, who was nineteen years of age at the time of the offense, lived with his grandmother, Emma L. Foley, age 72, in a residence located on the Casey-Russell County line. She had reared him from early childhood.

On August 20, 1961, appellant entered a service station in Liberty where he purchased three dollars and fifty cents’ worth of gasoline for his car and presented in payment a check in the amount of $12.00 on which the name, Emma L. Foley, appeared as maker. The check was drawn on the First National Bank, Russell Springs, Kentucky. Holt endorsed the check in the presence of the service station operator who deducted the amount for gasoline and gave him the balance in cash. The check was returned marked “No Account.” The cashier of the bank testified Mrs. Foley had money from her husband’s estate deposited in the bank under the names of her daughters and that to draw upon the amount on deposit, she must sign the name of either daughter followed by her own signature. The check was marked “No Account” because the account was actually in the daughters’ names, and not in the mother’s.

When produced as a witness, Mrs. Foley testified that she had authorized her grandson on many occasions to sign her name and particularly when he needed gasoline for the tractor or the car, but she weakened her testimony considerably by failing to testify in a forthright manner as to whether she herself had signed this check. However, on August 31, 1961, appellant signed a confession which reads in part:

“That at about the hour of 10:00 O’Clock on the morning of Sunday, August 20, 1961, I endorsed a check in amount of $12.00 and delivered the same to Wayne Cochran and Claud Murphy, Marathon dealers, Liberty, Kentucky, for gasoline, and cash. Shortly before I delivered this check to them I had forged it against Emma L. Foley, my grandmother, who knew nothing about it and who had no funds in the First National Bank, Russell Springs, Kentucky, the bank that the check was addressed to. I dated the check for August 18, 1961, writing said check in full and then forging and signing my grandmother’s name to it. When I wrote the check I was on above Cochran’s and Murphy’s station at Sanders Lumber Mill.
“My aunts paid off five cold checks for me day before yesterday that I had given Leslie Roy, A. Thomas, John Ragle, all amounting to $71.00. but I — ”.

The last sentence of the above quotation had been stricken out by a line through the entire sentence. However, when a person examines the writing he is able easily to read the words purportedly stricken out except the final word which is not clear. These final words “but I — ” (this final word being illegible) were written by pen, the rest of the sentence was by typewriter. The official who took the sworn confession stated that the line was drawn through the sentence after Holt had said that part was not true. At the trial of the case all the confession was read to the jury with the exception of that part through which a line had been drawn. However, over objection of appellant’s counsel, the jury was permitted to examine the original confession and to read it. Thus the jury was able to read that part which purportedly had been deleted. Appellant contends that the introduction of this document was prejudicial error because the easily read words had a tendency to connect him with the commission of other similar crimes, that is, the issuance of cold checks.

Generally evidence that accused has committed other crimes than that for which he is being tried is not admissible except when necessary to establish identity, guilty knowledge, intent, or motive for the crime or when the other offenses are so interwoven with the one under trial that they cannot be separated. Ellison v. Commonwealth, 311 Ky. 757, 225 S.W.2d 470. Such evidence may sometimes be introduced to show a pattern or a system in the commission of a crime. Lee v. Commonwealth, Ky., 242 S.W.2d 984. In Thomas v. Commonwealth, 194 Ky. 491, 239 S.W. 776, in a prosecution for uttering a forged check and where evidence was admitted showing that about a month before the accused had presented a forged check in a similar fashion, the court held that such evidence was incompetent, saying:

“Here the other offenses were not only separate and distinct, but were far removed in point of time from the offense charged. There was nothing novel, unusual, or distinctive in the method or means employed to commit the crime charged and the other crimes proved. On the contrary, all the crimes were committed in the usual way, and no such connection between the other crimes and the crime charged was shown as to justify the inference that he who committed the former must have committed the latter. It follows that the evidence complained of was improperly admitted. Boyd v. United States, 142 U.S. 450, 12 Sup.Ct. 292, 35 L.Ed. 1077; Effier v. State, 4 Boyce (Del.) 62, 85 Atl. 731.”

Appellant, Holt, had not signed a confession that “My aunts paid off five cold checks for me day before yesterday that I had given Leslie Roy, A. Thomas, John Ragle, all amounting to $71, but I — .” These words were supposed to have been deleted after the typewritten statement was read to him. So, we have these damaging words submitted to the jury, without anyone vouching under oath to their verity or subject to cross-examination. In the cases cited above, the commonwealth introduced witnesses at the trial who gave testimony that other crimes had been committed and the reception of the evidence was safeguarded by the restrictions of legal procedure. Here, no one attempted to prove that appellant had given “cold checks” to Leslie Roy, A. Thomas and John Ragle. Those men are not identified — nor is the occasion, nor the nature of the transactions, if in fact they occurred. Still the bald conclusion— sponsored by no one — was inspected by the jury.

We have concluded because of the injection into the trial of the possibility that appellant committed other crimes and the probability that the jury may have been influenced by it that the submission of the written confession in its existing form and condition was prejudicial error. On another trial the confession of this particular crime may be read to the jury but it should only be inspected by the jury after the deleterious words have been obliterated.

Judgment reversed.


author: CULLEN, Commissioner.

text:
    The FIRST NATIONAL BANK OF MAYFIELD, Executor under the Will of Ed Gardner, Petitioner, v. J. Gordon LISANBY, Special Judge of the Graves Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Feb. 9, 1962.
    James W. Stites, S. Russell Smith, Edwin H. Perry, Louisville, Malcolm R. Boaz, Mayfield, Thomas S. Waller, Paducah, Milton C. Anderson, Wickliffe, for petitioner.
    Charles I. Dawson, Edwin F. Schaeffer, Jr., Louisville, L. M. Tipton Reed, Mayfield, David R. Reed, Paducah, for amici curiae.
    J. Gordon Lisanby, pro se.
   CULLEN, Commissioner.

The First National Bank of Mayfield, Executor Under the Will of Ed Gardner, Deceased, has petitioned this Court for an order of mandamus directing J. Gordon Lisanby, Special Judge of the Graves Circuit Court, to “correct” the judgment entered by him in purported compliance with the mandate of this Court in First National Bank of Mayfield v. Gardner, Ky., 348 S.W.2d 839. The petitioner maintains that the judgment is erroneous and deficient in various respects and is not in conformity with the mandate.

The proceeding in the circuit court out of which arose the appeals involved in First National Bank of Mayfield v. Gardner, supra, was an appeal by Bunk Gardner, Sr., from orders of the county court admitting to probate a will and codicil of Ed Gardner, deceased. On October 23, 1959, the circuit court entered an interlocutory order holding invalid a “release” which Bunk Gardner, Sr., had executed and which the proponents of the will had asserted as a bar to the right of Bunk Gardner, Sr., to contest the will and codicil. On December 18, 1959, judgment was entered holding the will invalid but the codicil valid. Appeals were taken to this Court from so much of the judgment of December 18 as held the will invalid, and from the order of October 23. (The latter order was, of course, reviewable on the appeal from the final judgment, and it was treated by this Court as embraced in the final judgment for the purpose of disposition of the appeals.)

The mandate of this Court was:

“It is therefore considered that said judgment be reversed, with directions that the appeal from the order of the county court probating the will be dismissed ; * * * ”

The judgment entered by Special Judge Lisanby upon the mandate was:

“(1) The judgment of the Graves Circuit Court dated December 18, 1959 is now reversed;
“(2) The appeal from the order of the County Court probating the will is dismissed.”

Clearly, the judgment is in full conformity with the mandate.

The petitioner desires that the judgment be expanded to state its operative effect in relation to various matters. We do not consider this normally to be an appropriate function of a judgment.

The petition is denied.


author: SPERRY, Commissioner.

text:
    Sam E. SPRINKLE, Claimant-Respondent, v. DAVIS-NOLAND-MERRILL GRAIN COMPANY, employer, United States Fidelity and Guaranty Company, insurers, Appellants.

      No. 23467.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    Michael J. Bogutski, Kansas City, for appellants.
    Stephen J. Millett, Kansas City, for respondent.
   SPERRY, Commissioner.

This appeal is from a judgment of the Circuit Court affirming an award of the Industrial Commission in the amount of $2800, in favor of Sam E. Sprinkle, employee, who will be referred to as plaintiff, against Davis-Noland-Merrill Grain Company, a corporation, employer. Both the employer and its insurer, U. S. Fidelity & Guaranty Company, appealed. We will refer to employer as defendant.

Defendant is exclusively engaged in the business of agriculture and, in 1957, had a total of more than 40 agricultural employees not covered by the Workmen’s Compensation Act.

It owns and operates a 33000 acre ranch in Kansas, where Mr. Liggenstoffer is manager at a salary of $250 per month, plus other emoluments. This is, primarily, a cattle operation with 1500 acres of farm land involved. From four to six laborers are regularly employed, and are supervised by the manager, who works with them in various operations.

It owns two other ranches in Kansas, totaling some 16400 acres, which were operated as one unit. Mr. Howard had supervision of that operation and received $300 per month salary, plus other emoluments. He had several ranch hands under his supervision.

In Carroll county, Missouri, it owns and operates 3300 acres of Missouri river bottom land. Mr. Parsons is manager, at a salary of $400 per month. He is also furnished a house, lights, milk, and the equivalent of two meat hogs per year. Several farm laborers are regularly employed in this operation. Mr. Parsons oversees and directs activities but, in addition, he also works beside them in the performances of various farm operations.

All of the above mentioned managers received a bonus in 1956 by reason of the previous year being a profitable one.

Defendant maintains an office in Kansas City, Missouri, where it employed seven people at the time the accident occurred. In 1956, and in January, February and March, of 1957, they had an additional employee in the office.

Plaintiff’s testimony was to the effect that he had been a bulldozer operator for 29 years; that he had worked for various contractors who owned bulldozers and hired operators for them; that he worked as such an operator for people engaged in building farm ponds, levees, and terraces, as well as for construction firms, on roads and in quarries; that he had never worked as a farm laborer; that he was a dues paying member of the hoisting engineers labor union; that he had, prior to May, 1957, sustained a serious injury which made it difficult, if not impossible, for him to operate a bulldozer in heavy construction work or for long hours; that operating bulldozers and combines was all that he could do; that, for two years immediately prior to May, 1957, he had worked for Mr. Sowers, a contractor who owned more than one dozer and other machinery, as a bulldozer operator, building farm ponds, and in rock quarries, etc; that he received the “going wage” of $2 per hour; that the hours were too long, the work too much, and that he terminated such employment; that occasionally he operated a combine in custom work, those being the only two pieces of machinery that he could operate; that a week or so after terminating with Sowers, defendant’s manager of the Carroll county farm asked him if he would work there as a bulldozer operator; that he agreed to work as a bulldozer operator, nothing else, at $1.50 per hour, for a short time but not for too long hours; that he could not stand too much strain and tension; that he went to work on May 1, 1957, and was so employed thereafter for 10 hours per day when weather permitted; that, on May 29, he was removing brush and trees, and level-ling land that had overflowed, preparing it for agricultural uses; that, while so engaged, a willow tree struck him on his head and body, seriously injuring him. Since no question is presented as to the nature of his injuries, it is not necessary to further comment thereon.

Mr. Kleitz, a dirt moving contractor, testified for plaintiff. He stated that he owned five Caterpillar tractor-dozers and other motorized equipment; that he used them in farm and road work; that he paid operators $3.50 per hour; that he employed only skilled labor, no farm labor, because the equipment is too expensive; that a D7 machine costs $27000 (plaintiff was operating a D6) : that farmers, generally, do not own bulldozers; that a farm laborer and a bulldozer operator are two different people, doing different kinds of work.

Witness Jackson stated that he was business representative for Operating Engineers Union, Local 101, with members in Carroll and neighboring counties; that contractors in that area employ the union’s members; that such contractors do bulldozer work on farms in that community; that few farmers own bulldozers but contract their work to others engaged in the business of operating bulldozers; that, because of plaintiff’s physical condition prior to this injury, he would not be employable by contractors at the union scale of wages; that plaintiff’s union dues are paid up, that he is in good standing and, so far as witness knows, has never been suspended for nonpayment of dues; that he would have been suspended had he not kept his dues current.

There was testimony for defendant to the effect that plaintiff was employed to operate a bulldozer and, later, a combine; that he was regarded as a farm hand; that, if he worked 10 hours a day, earning $15.00, he would be paid more than was paid to fa'.m and ranch hands. There was also testimony to the effect that its three “farm managers” were, in fact, farm laborers; that, while they laid out and supervised the work of the men under their respective control and kept and made reports on their respective operations, they also performed ordinary farm ranch labor, assisting the hands.

The evidence tended to establish that the managers hired such labor as was needed from time to time, directed the activities of the men employed under them, received higher wages or salaries than did those working under their supervision, had charge of sending to market the produce of the farm and ranches, kept accounts and records thereon, forwarded to defendant such reports as were required by it and, in addition to other emoluments, they received bonuses for their services.

The commission found that Mr. Liggenstoffer, Mr. Howard, and Mr. Parsons were not farm laborers b.it were farm managers and were covered by the Workmen’s Compensation Act; that they were employed in a managerial capacity; that such ordinary farm labor as they did was “merely incidental or ancillary to their principal managerial duties”; that the term “farm labor”, as used in the compensation law, must be given its usual, customary meaning, citing Dost v. Pevely Dairy Company (Mo.), 273 S.W.2d 242, 244. The Court there pointed out that the term “agricultural labor” is broader than the term “farm labor”, and that only farm labor is excluded from the operation of the act; that other agricultural labor is under its coverage.

In Blew v. Conner (Mo.), 328 S.W.2d 626, 629 (Oct. 1959) the court held that the “farm manager” in that case was a "farm laborer”. However, one man only was regularly employed on the farm to perform farm labor. The other five employees engaged in erecting a barn, (being assisted by the one regular farm employee) were carpenters, not farm laborers. The facts in that case are so dissimilar to those here that the ruling, in that respect, is not controlling here.

The commission could, under the evidence, have found the facts to be as it did in this regard. These men were not farm laborers although they were employed in agriculture. The commission properly found them to be subject to the operation of the Missouri Workmen’s Compensation Act. With the seven regular employees in its office and the three farm managers, it had 10 employees regularly employed. The commission also found that plaintiff was within the coverage of the act. If so, then defendant was a major employer under the provisions of section 287.050 RSMo 1959, V.A.M.S. which defines a major employer as “an employer who has more then ten employees regularly employed”.

The commission also found that plaintiff was a bulldozer operator, not a farm laborer, and was within the coverage afforded by the act. It could have reasonably reached that conclusion and made that finding based on the evidence in the whole record. Blew v. Conner (Mo.), 328 S.W.2d 626, 629.

It found, (and it is virtually conceded by defendant) that, at the time the accident occurred, it had seven regular employees in its office in Kansas City, Missouri, engaged in its business and covered by the act. That finding is fully supported by the record.

There was substantial evidence to the effect that defendant, at the time plaintiff sustained his injuries, had more than 10 employees who were subject to the coverage provided by the Workmen’s Compensation Act. In arriving at that figure we are not counting any of the numerous other agriculture employees, who were farm laborers. It is not necessary to determine whether or not Virgie Reed, who was regularly employed by the month as a cook for the ranch hands on one of the Kansas ranches, was covered by the act, as was determined by the commission.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: CROSS, Judge.

text:
    Mary B. JONES, Claimant, Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Appellant.
    No. 23539.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.

      Thomas F. Eagleton, Atty. Gen., Gilbert D. Stephenson, Asst. Atty. Gen., for appellant.
    Robert Devoy, Brookfield, for respondent.
   CROSS, Judge.

Prior to December 11, 1959, respondent Mary B. Jones (hereinafter called Claimant), received aid to dependent children as provided by Section 208.040, V.A.M.S., and as administered by the State Department of Public Health and Welfare, on the basis that her husband was physically and mentally incapacitated. On the named date she was removed from the roll of aid recipients by a decision of the department based on its findings that her husband, Dewey Jones, was not physically or mentally incapacitated from performing gainful work — a procedure permitted by Section 208.040 V.A.M.S. Claimant appealed from that decision to the director of thé department under the provision of Section 208.080 V.A.M.S. After a hearing the director determined that claimant’s husband was not mentally or physically incapacitated for work and that, therefore, she was ineligible to receive dependent aid benefits for her children.

Upon appeal to the circuit court by claimant, that court found that the director’s decision was not based on substantial evidence and was, therefore, arbitrary and unreasonable, and ordered that the decision be set aside and that the case be remanded to the director for re-determination. From that judgment the department has appealed.

It is suggested by the Attorney General, appearing on behalf of appellant, that exclusive jurisdiction of this appeal is in the Supreme Court under Article V, Section 3 of the 1945 Missouri Constitution, V.A.M.S., because the director is a state officer and is a party to this proceeding. The suggestion has no merit. White v. State Social Security Commission, 345 Mo. 1046, 137 S.W.2d 569.

This proceeding affects three children born to claimant’s marriage with Dewey Jones. They are five, ten and twelve years of age and live at home with their parents. Other facts and circumstances shown by the evidence are substantially as follows:

Dewey Jones is 61 years old. Prior to 1955 he lived an active life and had been variously employed as a school teacher, a bridge carpenter, plumber’s helper and farm worker. In 1955 he had an operation for removal of a malignant tumor on his jaw. He received twelve X-ray treatments for the tumor before the operation and four additional such treatments afterward. At the date of the hearing he was a patient at the Ellis Fischel Hospital at Columbia.

Claimant testified that since the tumor operation her husband has been abnormal in that he had become nervous, took dizzy spells and couldn’t think for himself — that he is “more like one of her children” and depends on her for everything. Mr. Jones testified that since the operation he suffered headaches, dizziness, back pains, defective hearing, defective vision, prostate trouble and loss of memory; that he has attempted to work but was physically and mentally unable to do so. Irvin Thomas, a carpenter, testified on claimant’s behalf that he had hired Mr. Jones as a helper but that Jones was unable to perform the duties assigned him; that although he made an honest effort to work he could not do it. Ethel Neff, a neighbor, testified on behalf of claimant that she had on occasions hired Mr. Jones as a helper. She stated that for the past year he is so forgetful you can’t depend on him; that “he couldn’t understand what was to be done or anything about it”, and that he couldn’t get up on a ladder because it made him dizzy.

Dr. John R. Dixon, a medical doctor, testified on behalf of claimant that in his opinion Dewey Jones was not able to carry out gainful employment. Based on a general physical examination, Dr. Dixon diagnosed that Jones was suffering from Horner’s syndrome (left side), pre-senile mental change with memory defects, osteoarthritis of the lumbar spine and chronic prostatitis. Dr. Dixon stated: “As you recall, I mentioned he had twelve deep therapy treatments on that left parotid area in the summer of 19SS, followed by four more. I can’t quite conceive of that much irradiation being given. * * * there are other structures in that vicinity besides the paro-tid gland, mainly nerve tissues of the brain, and I can’t help but feel that certain changes instant to that irradiation has contributed a great deal to his mental condition as it exists today”.

Two witnesses testified on behalf of the department — an osteopathic doctor and a welfare case-worker. The former, Dr. Ryals, examined Mr. Jones three months before the hearing at the request of the county welfare office. The extent of that examination was not stated except that “I felt it was adequate to satisfy the needs that were called upon at that time”. Dr. Ryals testified that Jones was capable of performing work. He stated, “If I had known this was coming up I can assure you I would have requested every type of examination, * * * and I might make myself clear now, that it was just my humble opinion at the time I examined this gentleman that on that specific day he was able to do his job as stated in the application”. The welfare case-worker, Jesse Wheeler, testified that Mr. Jones “seems to accept what is said to him and he understands it”.

Our first duty, as prescribed by the statutes governing appeals of this nature, is to determine “whether or not a fair hearing has been granted the applicant”. Section 208.110, V.A.M.S.; Section 208.100, V.A. M.S. (Section 208.110 provides that appeals from the circuit court shall be in the same manner as provided by Section 208.100 for appeals from the director to the circuit court). Section 208.100 further provides: “If the court shall decide for any reason that a fair hearing and determination of the applicant’s eligibility and rights under this law was not granted the individual by said director, or that his decision was arbitrary and unreasonable, the court in such event shall remand the proceedings for redeter-mination of the issues by said director”.

Appellant recognizes our incumbent duty to determine whether claimant had a fair hearing by joining in that issue. It is urged in appellant’s brief that claimant was afforded a fair hearing because the record shows her presence at the hearing, with counsel, and that she was given full opportunity to testify, introduce evidence and cross-examine witnesses. Even so, it does not necessarily follow that she was accorded other additional rights inherent in the basic concept of due process.

“Fair hearing” is defined in 35 C. J.S., page 598, as “One in which authority is fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law”. An administrative proceeding will not be considered a “fair hearing” if it lacks the rudimentary elements of “fair play” embraced within the requirements of due process. Ritch v. Director of Vehicles & Traffic, D.C.Mun.App., 124 A.2d 301. It cannot be said that there has been a “fair hearing” if practices are indulged in or the hearing is conducted in a manner leading to the conclusion that a denial of justice may have resulted. United States ex rel. Dean, etc. v. Reynolds, D.C.Ind., 2 F.Supp. 290. A “fair hearing”, as used in a statute providing that an unemployment compensation claimant shall be afforded an opportunity for a fair hearing is synonymous zmth “a fair mid impartial trial” and requires a reasonable and substantial compliance with the principle of due process of law. King v. Brown, La.App., 115 So.2d 405. The cardinal test of the presence or absence of due process in an administrative proceeding is defined by 16A C.J.S. Constitutional Law § 628, p. 851, as “the presence or absence of rudiments of fair play long known to the law”.

Therefore, it is our view that an administrative proceeding such as the one now before us should be conducted as much in accordance with fundamental principles of justice and fairness as are judicial trials. That requirement is not satisfied unless the administrative proceeding is conducted by ¾ impartial officer, * * * free of bias, hostility, and prejudgment”. 16A C.J.S. Constitutional Law § 628, p. 862. It follows that hostile conduct and comments on the part of the presiding officer indicating bias and prejudgment may constitute a denial of fundamental justice. As stated in United States ex rel. Dean, etc. v. Reynolds, supra, ■“The American idea of justice implies an unbiased presiding officer, whether he be called judge, referee, commissioner, master or inspector. This was necessary to constitute a fair hearing”. In our opinion those principles apply to the hearing from which this appeal arose.

The hearing on claimant’s application was conducted by an attorney for the department who was appointed as a referee for that purpose by the director of the department. The attorney-referee produced and examined the department’s witnesses, cross-examined claimant’s witnesses and heard and ruled upon all objections. Since the statute providing for his appointment makes no provision for a report or recommendation based on the hearing, he submitted none to the director. As provided by Section 208.080, the director made the decision in claimant’s appeal upon the record of the hearing.

A referee is a quasi-judicial officer. It is elementary that he must observe the strictest impartiality and show no favor to either of the parties by his conduct, demeanor or statements. We believe that such standard of judicial conduct was not observed in the course of claimant’s hearing. On the contrary, it is our opinion that the referee went beyond the scope of his lawful authority by expressing opinions on the merits of the controversy and by making comments on the evidence amounting to unsworn testimony unfavorable to the interest of claimant — all preserved in the record certified to the director. We are convinced that claimant’s rights were so prejudiced by those remarks that she was denied a fair hearing.

During the cross-examination of Dewey Jones by the referee, the following questions, answers, statements, objections and rulings occurred as shown by the record:

“{THE REFEREE) Q What is it, Mr. Jones, that prevents you from working now if you wanted to work? What is it that prevents you from working if you wanted to ?
“MR. DEVOY
“I object to that double-barreled question. You are assuming he don’t want to do it.
“{THE REFEREE)
“Q No, I am not. I am assuming he wants to work. He says he has been looking for work.
“(The Witness) State your question.
“(THE REFEREE)
“Q In other words, looking at your, Mr. Jones, you look to be a normal person to me. You look of normal weight for a man of your height. You must be what, six feet tall, is that right?
“A I am not quite six feet.
“(THE REFEREE)
“Q Well, as I said, to me you appear to be a normal person from my observation. What is it that prevents you from working if you wanted to work ?
“MR. DEVOY
“I object to the observation made by the Referee.
“(THE REFEREE)
“The objection is over-ruled”.

The foregoing excerpt of the record shows that the referee made two statements of fact (as distinguished from interrogation) as follows: (1) “In other words, looking at your, Mr. Jones, you look to be a normal.person to me. You look of normal weight for a man of your height”. (2) “Well, as I said, to me you appear to be a normal person from my observation”.

Manifold vices inhere in the quoted comments: (1) They are unsworn statements of purported fact. (2) They are voiced demonstrations of bias against claimant. (3) They are expressions of the referee’s opinion on the sole issue of fact and on the merits of the case. (4) They amount to an openly expressed pre-judgment of the controversy. (5) They tended to intimidate the witness Dewey Jones during his examination. (6) They tend to discredit or disparage the witness Dewey Jones and his evidence — as well as the evidence of all witnesses who testified to his incapacity for work. These deviations from official duty are not matters of form, but partake of vital substance. Each of the enumerated effects of the referee’s impropriety is an invasion of claimant’s right. Combined,, they have defeated her entitlement to a just determination.

We cannot assume that the referee’s remarks were harmless and without prejudicial effect, since they were present, in the record upon which the director made his decision. We presume that those comments were read by the director, together with all other matter properly shown at the hearing. Whether or not the director was-influenced in his decision by the referee’s-views of the case, we are unable to say— any more than we could say, with informed' certainty, whether like indiscretions on the part of a trial judge in a jury case had any effect on the jury’s verdict. It is sufficient to note that the prejudicial remarks and expressed views of the referee could have been a factor in the turn of the decision against claimant.

The traditional procedures which have developed in courts of common law are the indispensable safeguards of liberty and personal rights. These processes must be preserved inviolate by the courts of their origin. We are here mindful of the admonition directed to administrative agencies by the Supreme Court of the United States in Morgan et al. v. United States et al., 304 U.S. 1, 58 S.Ct. 773, 778, 82 L.Ed, 1129, in these words of Chief Justice Hughes: “The maintenance of proper standards on the part of administrative agencies in the performance of their quasi-judicial functions is of the highest importance and in no way cripples or embarrasses the exercise of their appropriate authority. On the contrary, it is in their manifest interest. For, as we said at the outset,, if these multiplying agencies deemed to be necessary in our complex society are to serve the purposes for which they are created and endowed with vast powers, they must accredit themselves by acting in accordance with the cherished judicial tradition embodying the basic concepts of fair play.”

In view of our finding that claimant was not granted a fair hearing, it is unnecessary for us to consider whether the director’s decision was arbitrary and unreasonable.

In accordance with our expressed views, we affirm the judgment of the circuit court setting aside the director’s decision and remanding the case to that official for re-determination.

All concur.


author: HUNTER; Presiding Judge.

text:
    STATE of Missouri ex rel. ANONYMOUS, next friend of Richard and Roger -, Minors, Relators, v. J. Donald MURPHY, Presiding Judge of the Jackson County Circuit Court, Kansas City, Missouri, Respondent.
    No. 23622.
    Kansas City Court of Appeals. Missouri.
    Feb. 8, 1962.
    William C. Partin, Kansas City, for relator.
   HUNTER; Presiding Judge.

This controversy comes to us on an application for a writ of mandamus. Richard and Roger -, minors, by their mother and next friend --, filed a petition in the Jackson County Circuit Court, seeking a declaratory judgment declaring that Sgt. -, defendant, a nonresident of Missouri and a member of the United States Armed Forces, stationed in Maryland, is the natural father of Richard and Roger.

Relators in their circuit court petition alleged that they are residents of Jackson County, Missouri; that their mother was never married to defendant, but that he had acknowledged relators as his natural children, had contributed to their support, and to the support of their mother during the period of gestation, but now denies that he is the father of relators and has refused to advise the military authorities of his parentage of these minor children by reason of which they are unable to receive certain benefits provided by law for dependents of members of the United States Armed Forces. They concede he is a nonresident of Missouri.

Service was had upon defendant in Maryland by registered mail. Defendant appeared specially in the circuit court action and moved to quash the service of process alleging that the nature of the action was not such as to authorize valid service on him by registered mail.

Respondent circuit judge sustained the motion to quash the service, quashed it, and refused to hear the case on its merits. Relators seek our writ of mandamus ordering respondent to set aside his order quashing service and to proceed to hear the declaratory judgment action. They contend they have no other adequate remedy to compel respondent to assume jurisdiction of the cause and to grant a trial on the merits for the reason that no appeal is allowed from an order sustaining a motion to quash service of process. We agree with this contention. See, Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793; Tobin Asphalt Products, Inc. v. Henwood, Mo.App., 199 S.W.2d 415; Evans v. Barham, Mo.Sup., 184 S.W.2d 424; Civil Rule 82.01, V.A.M.R.; Section 512.020 RSMo 1959, V.A.M.S.

Several preliminary matters need discussion for the light they may shed on our determination of the precise question presented to this court.

The Declaratory Judgments Act of this state, Section 527.010 RSMo 1959, V.A.M.S., provides: “The circuit courts * * * shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * * and such declarations shall have the force and effect of a final judgment or decree”.

It is well recognized that a Declaratory Judgment Act, such as ours, is applicable generally to determine the parentage of a child and the status of a child with relation to an alleged natural or adoptive parent. 26 C.J.S. Declaratory Judgments § 37, page 115; 2 Anderson, Actions for Declaratory Judgments, Section 643, page 1468; Borchard, Declaratory Judgments, 2 Ed., page 485. In Keiser v. Wiedmer, Mo.App., 263 S.W.2d 63, and Menees v. Cowgill, 359 Mo. 697, 223 S.W.2d 412, our appellate courts specifically have so held. Hence the circuit court has jurisdiction of the subject matter of this action by authority of the Declaratory-Judgments Act.

Civil Rule 54.08(a) provides: “Service by mail or by publication shall be allowed in all cases affecting a fund, .will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, * * (Emphasis ours.) Relators contend their declaratory judgment action to establish and declare that defendant is their natural father is ah action to establish a status within the jurisdiction of' the court, and ■that service by registered mail on a nonresident of this State is proper and sufficient to give jurisdiction to the court to declare their status as children of the nonresident defendant so served. . ■ > >...

Thus, the precise question presented for our determination is whether valid service has been obtained on a nonresident defendant in a declaratory judgment action brought by two minor children for the avowed purpose of establishing and declaring that the defendant is their natural father where the service in question is by registered mail.

Respondent’s position, as indicated in Relators’ Application for this writ and supplementing suggestions, is that the relief sought by relators in their declaratory judgment action is necessarily a personal judgment against defendant and since he is not a resident of the State of Missouri, and was not served in this state, such service is neither authorized nor valid.

It is fundamental that no court has the power to render a personal judgment against a person unless it obtains jurisdiction over his person. Admittedly, nothing has occurred in the declaratory judgment action that has resulted in the circuit court obtaining jurisdiction over the person of defendant.

The inevitable and controlling question is whether the declaratory action is one merely to declare a status that is within the jurisdiction of the circuit court or is an action which in its very nature is essentially one for a personal judgment.

If the action is merely to declare a status that is within the jurisdiction of the court, such as an action in rem where the thing to be affected is within the jurisdiction of the court and not one to affect as such any personal right of defendant, then we agree that the requisite jurisdiction for granting the relief asked is present and the service hy registered mail should not have been quashed. On the other hand if the action is brought to obtain á declaration that affects the personal rights of defendant and ■seeks a binding judgment against him having that effect, then the action is an in per-sonam action and service by registered mail ■on nonresident defendant is neither authorized by Civil Rule 54.08(a) nor valid, and was properly quashed by the circuit judge.

Whether a particular proceeding is in rem or in personam is determined by its nature and its purpose. 1 Am.Jur., Actions, Section 44, page 435. Each particular action must be examined carefully before deciding whether or not it is a personal action.

We believe it evident and we have concluded that the declaratory judgment action before us in this proceeding is not one seeking the declaration of a status that is within the jurisdiction of the court because relators and their mother reside within the court’s territorial jurisdiction, but rather is an action seeking a binding personal judgment against defendant. The judgment sought would declare relators to be the natural children of defendant. Such a judgment necessarily would also determine that defendant is the father of re-lators. As their natural father, defendant would be personally liable for their support. State ex rel. Kramer v. Carroll, Mo.App., 309 S.W.2d 654; 39 Am.Jur., Parent and Child, Section 35, pages 630, 632; In the Matter of Scarritt, 76 Mo. 565; Annotation 1 A.L.R.2d 910. They, absent a valid will to the contrary, would be entitled to a share of his estate upon his death. In addition to this effect on his civil rights and duties he could be faced with possible criminal charges for nonsupport. See, Section 559.350 RSMo 1959, V.A.M.S. The judgment obtained, if valid and binding on defendant, would be used to obtain a military dependency allowance, a portion of which would be taken from defendant’s military salary. Neither theoretically nor realistically can we say that the judgment sought in this particular declaratory judgment action is other than one in personam, and one directly affecting the personal rights of defendant.

We are supported in our conclusion by the well reasoned case of Hartford v. Superior Court, 47 Cal.2d 447, 304 P.2d 1. In that decision, the Supreme Court of California had the same basic question as that now before us. In ruling that the registered mail service obtained on the nonresident defendant was not valid, the California court noted that its declaratory judgment statute contemplated the obtaining of a final, binding judgment on the parties before the court, and that normally the judgment in such an action would be res judicata. As previously noted, our Missouri Declaratory Judgments Act specifically provides “such declarations shall have the force and effect of a final judgment or decree”. Our Missouri Supreme Court En Banc, in Land Clearance for Redevelopment Authority v. City of St. Louis, 270 S.W.2d 58, 62, in discussing this feature of the Missouri Declaratory Judgments Act, stated, “* .* * a declaratory judgment is neither an advisory opinion nor a decision of a moot question, because it must involve a real controversy in which the result would be res judicata between the parties”. (Emphasis ours.)

After mentioning this same feature of the California Declaratory Judgment Act the California court said, loe. cit. 5: “Plaintiff correctly concedes that if the purpose of the present action were to enforce a duty of support or some other personal obligation growing out of the parent-■child relationship, personal jurisdiction ■over defendant would be essential, (citations.) This requirement cannot be avoided by limiting the relief sought to a hinding adjudication of the parties’ status, ■since such an adjudication would prevent •relitigation of the basic issue on which defendant’s personal obligations to plaintiff must rest and to that extent would necessarily constitute a personal judgment .against him”.

Because personal jurisdiction over the defendant was essential to the action brought by relators in the circuit court, •the service upon defendant outside the state was unauthorized and ineffective. The trial judge properly quashed it and correctly refused to proceed to hear the case on its merits.

Relators in their petition for writ of mandamus have asked this court to issue its alternative writ of mandamus to the circuit judge to show cause why he should not set aside his order quashing service, assume jurisdiction of the cause and proceed to try it on the merits. An alternative writ of mandamus should never issue unless the petition for the writ states facts which, if true, would authorize the issuance of a peremptory writ. State ex rel. Coffman v. Crain, Mo.App., 308 S.W.2d 451(5); State ex rel. Tate v. Sevier, 334 Mo. 771, 776, 68 S.W.2d 50, 52(5).

Since we have determined that the facts stated in the petition for writ of mandamus, if true, do not entitle relators to the issuance of the writ, the petition for writ of mandamus is denied and dismissed.

It is so ordered.

All concur.