text:
    Sam D. HINKLE, Appellant, v. BOARD OF ZONING ADJUSTMENT AND APPEALS OF SHELBY COUNTY, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    Rehearing Denied June 16, 1967.
    Marion Rider, Frankfort, for appellant.
    William H. Hays, Shelbyville, Frank J. Dougherty, Jr., Dougherty, Gray & Haunz,' Louisville, and Ralph Mitchell, Saunders & Mitchell, Shelbyville, for appellees.
   STEINFELD, Judge.

Sam D. Hinkle resides on New Seven Mile Road (State Highway 1506) in Shelby County, Kentucky about four miles south of Shelbyville. Across that road from his residence is land known as the Hedden-Reed tract. From time to time during the last seven years concurrently and separately a stone quarrying business and blacktop plant have been operated there. By this litigation Hinkle is seeking to prevent Proctor Bros, from operating a blacktop plant on the quarry property and Hedden-Reed Company from bringing on to that property, stone for the purpose of selling it to its customers. The lower court refused the demand made by Hinkle and he has appealed.

Proctor Bros, and Hedden-Reed contend that the right to operate the blacktop plant and sell the stone exists because the property was used for those purposes in the past; that such uses have not been abandoned and a continuance of those uses is permitted under the zoning laws and regulations with respect to nonconforming uses. It is important to a decision in this case that the history of the use of this property be examined.

On January 6, 1960, the quarry was opened and operations started, and about the 14th day of April, 1960, a blacktop (sometimes called asphalt) plant was erected and the production of blacktop material was started. About the 7th day of April, 1961, the quarrying operations were discontinued but they were resumed on the 5th day of September, 1961. Meanwhile the blacktop plant was producing. We digress momentarily to point out that on September 19, 1961, the Shelby County Fiscal Court adopted a temporary zoning order for the unincorporated areas of that county to become effective as of January 1, 1962.

On November 20, 1961, the operation of the blacktop plant was discontinued. Therefore, when the zoning order went into effect there was no blacktop being produced but the quarry was in general operation. In April 1962, almost four months after the zoning order became effective, the operation of the blacktop plant was resumed. It was continued until April 20, 1963, when the plant was again closed. The general operation of the quarry was continued until the early fall of 1963. Later that year the Hedden-Reed Company began to purchase stone from other producers and to store same on the subject premises and sell it to its customers.

On December 3, 1963, the Shelby County Fiscal Court adopted a permanent zoning order which took effect immediately and is in existence today. The subject land was zoned and designated on the zoning map as “Agricultural — Subject to Special Use”. The permanent zoning order defines an agricultural district as follows: Article II, section 21, sub-section 2,

“Agriculture: the use of the land only > — minus agricultural structures — for the cultivation of crops or the raising of animals or preservation in its natural state.”

On March 24, 1966, Proctor Bros, filed with the zoning enforcement officer an application for a permit to construct and operate a blacktop plant. This application was denied by the officer, however, the application was brought before the Board of Zoning Adjustment and Appeals. On April 4, 1966, the Board conducted an extensive hearing at which Hinkle was present and on April 6, 1966, it authorized the operation of the blacktop plant by an order showing that it was adopted pursuant to section 23.2 of the zoning order. (No application was made to continue the operation of the quarry.)

Section 23.2 reads as follows:

“NONCONFORMING USES
Nonconforming uses may be continued subject to the following regulations:
A. Extensions: A nonconforming use shall not be extended or moved to occupy any portion of land or a structure which would otherwise conform with this order.
B. Discontinuance: Whenever a nonconforming use of any premises has been discontinued for a period of twelve months, no nonconforming use may be re-established on those premises.
C. Changes: A nonconforming use may be changed to another nonconforming use which is no less compatible with permitted uses, but it may not be changed to a less compatible use. The Board of Zoning Adjustment and Appeals shall rule on compatibility upon application by the Enforcement Officer for an interpretation. A nonconforming use may be changed to a conforming use.”

On the 27th day of April, 1966, Hinkle brought an action against the Board of Zoning Adjustment and Appeals of Shelby County, its members, Hedden-Reed Company, Proctor Bros, and the Zoning Enforcement Officer. After alleging various facts related in this opinion, and others pertinent to the issue, he charged that the order of April 6, 1966, was in excess of the powers of the Board and in violation of KRS 100.850 and KRS 100.872. His principal claim, and the one which he asserts in this court, is that the Board did not have the power to authorize the use of the premises for a blacktop plant, and that the property may not be used as a rock quarry because, he says, “this use had been abandoned for more than three years.” He also charges that the blacktop plant operation was not incidental to the quarry activity but was an additional use. There were other issues raised in the lower court but they have since been abandoned and we will direct our attention only to those two claims made herein.

Proctor Bros, contends that the proceedings were regular and that “The entire question on this appeal is whether or not the Board was acting within its powers and not abusing its discretion in permitting a companion use to the nonconforming use previously established.” Hedden-Reed Company points out that at the hearing in the court below “It was agreed by all parties and the court that the complaint was two separate and distinct actions ‘count one’ being an appeal from the decision of the Board of Adjustment and Appeals relating to the operation of the blacktop plant by Proctor Bros, and the ‘second count’ being a new action against Hedden-Reed Company to stop any and all activity on their premises which was non-agricultural by definition.” Hedden-Reed claims that it is not involved in the application for or the operation of the blacktop plant; that the complaint failed to state a cause of action against it; and that there is nothing in this record by which a court would be authorized to enter a judgment against Hed-den-Reed Company.

The trial court made findings of fact and reached conclusions of law, among which was:

“1. While it is true that the aforesaid premises are in a zone designated in the zoning order of Shelby County, Kentucky to be used for agricultural purposes only, the Board of Zoning Adjustment and Appeals found that said property was entitled to the benefit of the nonconforming use since they had been used as a rock quarry and materials had been extracted therefrom, received thereto, stored thereon and delivered therefrom continuously since prior to the effective date of the zoning order of Shelby County, Kentucky.”

Hinkle argues vigorously that there were no facts in the record to justify the order which the Board entered and he contends that the Board did not make a “finding of fact sufficient to support the conclusion reached.” He relies upon American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450 to support that contention, and Proctor cites American Beauty Homes to sustain its argument. It is not necessary for us to determine whether or not the American Beauty Homes case is applicable, or if a distinction exists between the situation here and that which existed in American.

There was sufficient evidence before the Board at the public hearing of April 4, 1966, to give it a basis for making a determination that there was no abandonment of the nonconforming use and that the subject property might be used for a blacktop plant subject to the conditions which the Board imposed. These findings were confirmed by the trial court. We are not authorized to disturb such findings which were based on sufficient evidence. Neagle v. State Highway Department, Ky., 371 S.W.2d 630 and Cabe et al. v. Toler et al., Ky., 411 S.W.2d 41. Decided January 27, 1967.

Appellant relies on Durning v. Summerfield, 314 Ky. 318, 235 S.W.2d 761; Feldman v. Hesch, Ky., 254 S.W.2d 914, and City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1 to support his contention that there was a change from one nonconforming use to another nonconforming use which is not authorized. In Durning there was no proof of a continued use. A carnival had used the land for several days from time to time, but never regularly or even annually. In Feldman we found that there was an attempt to extend a nonconforming use, and in Green the proposed use was substantially different from what had existed. Those authorities are not applicable to this case.

Counsel for appellant argues that the law favors the gradual elimination of nonconforming uses of property and cites Attorney General v. Johnson, Ky., 355 S.W.2d 305 and Franklin Planning and Zoning Commission v. Simpson County Lumber Co., Ky., 394 S.W.2d 593. Those cases, so hold but they do not support Hinkle. In Johnson the prior commercial use had been abandoned more than five years and in Simpson we held that a nonconforming use had not been enlarged.

The trial court, in the case at bar, found that there had “been no showing that the decision and order of the Board * * * was arbitrary, but on the contrary, it (had) been shown * * * that a full hearing was held, that all parties had an opportunity to state their positions * * * that these matters were fully considered by the Board and, therefore, the decision and order of the Board should be upheld.” Judgment was entered accordingly.

At the time the Fiscal Court of Shelby County adopted the temporary zoning order the quarry and the blacktop plant were in operation. On the effective date of the zoning ordinance, January 1, 1962, Hedden-Reed Company was operating the quarry although the blacktop plant was not in operation at that time. On December 3, 1963, although the only activities at the quarry were the storage and sale of stone, the quarry was never abandoned. We held in Silliman v. Falls City Stone Company, Ky., 305 S.W.2d 322 that asphalt plants (otherwise known as blacktop plants) are incidental to the operation of a quarry. It is not customary for such plants to be operated on a continual basis because the production is frequently seasonal and depends upon the proximity of the need. We see no difference between the situation at the Hedden-Reed property and that which existed in the Silliman case. The facts show that the blacktop plant was opened and closed several times. Such an operation was not new to the premises, nor is there any indication that it was ever abandoned. We do not consider it significant that the present plant was located in a different place in the quarry from the former plant. It is well known that in quarrying operations the activities are moved from place ■to place throughout the general area where the stone is located.

Appellant relies upon several cases which he contends sustain his position that the Board could not authorize the erection of the blacktop plant. He asserts that there has been a change of use which was the basis on which those cases were decided. Here there has been no change of the basic use of the property. It has always been .•a quarry and remains a quarry with the incidental uses that it has always had.

It is our opinion that the trial court was ■correct in upholding the order which authorized the operation of the blacktop plant.

The second count of the complaint •is an effort on the part of Hinkle to secure .an adjudication that the subject property should not be used for any purpose except .agricultural. The answer of Hedden-Reed put in issue the question of its right to use the property for the sale of stone. The trial court made no findings with regard to this issue. The judgment entered the 22nd day of June, 1966, adjudged nothing with regard to the Hedden-Reed Company. A supplemental judgment was entered on the 14th day of September, 1966, in which the trial court “dismissed as to all claims :asserted and questions presented as to all parties to this action.” Hinkle raised the issue that Hedden-Reed had no right to continue the storage and sale of stone on the subject property. The case was practiced as if Hedden-Reed had been a party to the proceedings before the Board. The case having been practiced in this manner, and in the light of the allegations of the complaint against Hedden-Reed the burden was on Hinkle to show that Hedden-Reed was engaging in a nonconforming use without right to do so. He did not meet that burden. The record before us is sufficient to indicate that the trial court correctly dismissed the action against the Hedden-Reed Company.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CULLEN, Commissione

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ross GAMBLE and Mable Gamble, his wife, Appellees.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Rehearing Denied June 16, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, M. T. Quinton, Jr., Reed D. Anderson, Madisonville, for appellant.
    Richard L. Frymire, Madisonville, for appellees.
   CULLEN, Commissione

A motion for an appeal previously Having been sustained, we have before us the appeal of the Commonwealth of Kentucky, Department of Highways, from a judgment for $2,000 rendered in favor of the appellees Ross Gamble and wife on a “reverse condemnation” claim.

Pursuant to a deed from the Gambles conveying “a temporary easement for the purpose of constructing an entrance road” the Department of Highways constructed a gravel-surfaced roadway on a 30-foot strip running across the Gambles’ farm. The roadway was so constructed as to reconnect two segments of a country road or passway which passed along two sides of the Gambles’ farm and which had been severed in the construction of a new, nonac-cess, state highway running across what formerly was a corner of the Gambles’ farm, acquired by the state from the Gambles by deed. The roadway constructed by the Department of Highways on the 30-foot strip was not constructed as a state highway or as a part of the state road system, and the department since its construction has not attempted to exercise any control or dominion over it. However, a few neighbors of the Gambles who had a prescriptive right to use the old road have treated and used the new roadway as being a new link in the old road.

About a year after construction of the roadway the Gambles instituted the instant “reverse condemnation” suit against the Department of Highways, on the theory that the department had taken property of the Gambles. Their complaint alleged that they had given a deed for construction of an “entrance road” but instead the department had built a “through roadway.”

We think it is clear that the construction of the road (and its continued existence as a physical structure) did not (and does not) constitute a taking because the construction is exactly what the deed (and the plans incorporated in the deed) called for. See Commonwealth, Department of Highways v. Davidson, Ky., 383 S.W.2d 346. So if any taking has occurred or is occurring it is by the use of the roadway. (This really is what the Gambles were claiming in their complaint allegation that the state built a “through roadway.”) But the state is not using the roadway, or purporting in any way to exercise any control or dominion over its use, or holding out to the public that it is available for use. The roadway is entirely within the jurisdiction of the Gambles, and it is solely a matter between the Gambles and their neighbors whether the neighbors shall use the road. (Since the old roadway, which ran on the Gambles’ land and which the neighbors admittedly had a prescriptive right to use, was severed as a result of the Gambles’ selling part of their land to the state for a valuable consideration, the neighbors might well argue that it was up to the Gambles to furnish a new link in the road.)

Since the state did not take anything by constructing the roadway as called for in the deed, and since the state subsequent to the construction has done nothing at all in the way of using or occupying any property of the Gambles, there is no basis for any reverse condemnation claim.

Although there was no pleading of such damages, the Gambles in their testimony sought to show damages from improper drainage. It is sufficient to say that there was no evidence that the construction work by the Department of Highways in any way departed from the plans incorporated in the deed, wherefor, under Commonwealth, Department of Highways v. Davidson, Ky., 383 S.W.2d 346, no claim can be prosecuted for the drainage damages.

The judgment is reversed with directions to enter judgment dismissing the complaint.

All concur.


author: MONTGOMERY, Judge.

text:
    James R. AMBURGEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 16, 1967.

      Claude Asbury, Catlettsburg, Burnis Martin, Prestonsburg, for appellant.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, W. B. Arthur, Commonwealth’s Atty., Ashland, for appellee.
   MONTGOMERY, Judge.

James R. Amburgey was convicted of seduction and sentenced to confinement for one year. On appeal he urges that the crime of seduction cannot be committed upon a divorcee; that the trial court erred in the admission of testimony and in the instructions given to the jury; and that reversible error was committed by failing to have the grand jury proceedings reported.

KRS 436.010(1) provides:

“Any person who, under promise of marriage, seduces and has carnal knowledge of any female under twenty-one years of age, shall be confined in the penitentiary for not less than one nor more than five years.”

Mary Ruth Howard, the prosecuting witness, was a divorcee at the time of her seduction. Appellant contends that KRS 436.010 applies only to a female who has never been married. The theory advanced is that once a woman has been married she can no longer be considered a chaste person, and that by reason of her marriage she has become so knowledgeable that she is immune to the wiles of a seducer.

Appellant’s argument is based on Jennings v. Commonwealth, 109 Va. 821, 63 S.E. 1080, 21 L.R.A., N.S., 265, 132 Am.St. Rep. 946, 17 Ann.Cas. 64. Jennings was approved in Evans v. Commonwealth, 183 Va. 775, 33 S.E.2d 636. The Virginia decision was based on the interpretation of a statute concerned with “any unmarried female of previous chaste character.” “Unmarried” was construed to mean “never having been married.”

A general statement of the rule appears in 47 Am.Jur., Seduction, Section 14, page 638, as follows:

“In accordance with the view that chastity does not necessarily connote virginity, it has been said that the spirit of the law penalizing seduction does not and cannot take into consideration the wisdom and experience of those whom it undertakes to protect from wrong. Accordingly, it has been held that the law creating criminal seduction safeguards the virtue of the chaste widow or divorced woman just as much as that of the woman who has never been a wife, although the contrary has been held in at least one case. It is interesting to note in this connection that ‘the Roman law made penal the seduction of widows as well as virgins.’ ”

Seduction statutes are generally construed to include all unmarried women, whether spinsters, widows, or divorcees. 79 C.J.S. Seduction § 33, page 987. See People v. Weinstock, Mag.Ct., 140 N.Y.S. 453; State v. Wallace, 79 Or. 129, 154 P. 430, L.R.A.1916D, 457; and State v. Eddy, 40 S.D. 390, 167 N.W. 392.

The rule here has long been that in order to sustain “a conviction under this charge it must appear that the seduced female was of chaste character at the time of the intercourse. However, the fact that she at one time left the path of virtue and became unchaste will not defeat a conviction if the evidence shows her to be a chaste woman for a reasonable time immediately before such intercourse.” Hoskins v. Commonwealth, 188 Ky. 80, 221 S.W. 230, and cases therein. See also Byrley v. Commonwealth, 264 Ky. 403, 94 S.W.2d 1008; and Holt v. Commonwealth, Ky., 259 S.W.2d 463. Under such rule certainly a divorcee is entitled to be protected by KRS 436.010.

The prosecutrix was permitted to testify concerning a telephone conversation with the appellant in which he “asked what it would take to drop the charges.” In Gossage v. Commonwealth, 256 Ky. 532, 76 S.W.2d 596, a conviction of seduction was affirmed. The admission into evidence of letters written by the seducer by which he offered cash in settlement of the prosecution was approved.

Appellant relies on Bennett v. Commonwealth, 234 Ky. 333, 28 S.W.2d 24. In Bennett, the testimony of a Commonwealth’s attorney to the effect that the defendant offered to plead guilty in return for assurance that he would not receive the death penalty was held to be inadmissible because of the confidential relationship of the officer. This was pointed out in Bond v. Commonwealth, 236 Ky. 472, 33 S.W.2d 320, wherein the owner of stolen property was permitted to testify that after indictment and before trial the defendant had inquired of him as to how much it would take to compromise the prosecution. Here, the prose-cutrix bore no confidential relationship to the appellant. The telephone conversation was properly admitted as a “substantial basis for an inference of guilt.” Taylor v. Commonwealth, Ky., 403 S.W.2d 713.

Complaint is made that the court failed to define the terms “seduction,” “divorcee,” “chaste,” and “virtuous.” The court gave four instructions. The first instruction was couched in the language of the statute. Generally this is sufficient to define seduction. Bush v. Commonwealth, 205 Ky. 14, 265 S.W. 468; Fogle v. Commonwealth, 210 Ky. 745, 276 S.W. 814; Nunley v. Commonwealth, 307 Ky. 274, 210 S.W.2d 962.

Appellant’s insistence that the court should have defined the four terms is based on the theory that because the prosecutrix had been divorced she should be considered unchaste. The fallacy of this contention has been demonstrated. The prosecutrix had had a couple of dates with another man. There is nothing in the record to reflect on the chastity of the prosecutrix. Chastity was not properly in issue and there was no need for the definitions sought. Scalf v. Commonwealth, 262 Ky. 469, 90 S.W.2d 729; Byrley v. Commonwealth, 264 Ky. 403, 94 S.W.2d 1008.

The appellant’s contention that error was committed by a failure to instruct on sexual intercourse from a mutual desire of the parties is without substance inasmuch as such an instruction was given. The third and fourth instructions were on reasonable doubt and defined “willfully” and “feloniously.”

The four instructions given were proper and were in the approved form. 3 Stanley’s Instructions to Juries, Sections 968 and 969; Bowles v. Commonwealth, 310 Ky. 591, 221 S.W.2d 459; Holt v. Commonwealth, Ky., 259 S.W.2d 463.

Finally, appellant argues that the indictment should have been quashed because he was not furnished a transcript of the testimony presented to the grand jury. There is no merit in this contention for several reasons. No such motion was made. True, a motion for a transcript was made but did it not ask that the indictment be quashed. Another motion was made on other grounds on which a dismissal of the indictment was sought.

RCr 5.16 does not require that the testimony of witnesses before a grand jury be taken and transcribed. In White v. Commonwealth, Ky., 394 S.W.2d 770, it was held that a defendant had no cause to complain of the overruling of his motion for a transcript of the stenographic notes of the testimony before the grand jury when no such notes were made.

As a part of appellant’s motion he also asked that the prosecutrix submit herself for cross-examination for the purpose of discovery. Apparently this was the purpose of appellant’s motion in seeking the transcript. If so, there is another reason why there was no error in overruling the motion. He was furnished with a detailed summary of her expected testimony of more than five pages in length. Especially was there no error on the trial on which he was convicted because the prosecutrix apparently had testified and had been subjected to cross-examination on a former trial. Under such circumstances appellant had full knowledge of her expected testimony and was not prejudiced.

Judgment affirmed.

All concur except HILL, J., not sitting.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Walter Kyle GLASSCOCK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.
    Rehearing Denied June 16, 1967.

      Robert Matthews, Atty. Gen., William G. Mullins, Frankfort, Dept, of Public Safety, for appellant.
    Allen K. Gailor, Louisville, for appellee.
   DAVIS, Commissioner.

The. Department of Public Safety appeals from a judgment setting aside the Department’s suspension of appellee’s operator’s license. To support its appeal the Department asserts (1) that the judgment setting aside the suspension was void because the court lacked jurisdiction, (2) the appellee’s proceedings were a void collateral attack upon another court’s judgment, and (3) the scope of judicial review was exceeded anyway.

By notice dated May 20, 1965, the Department informed appellee that his driving record reflected an accumulation of 12 “points” within a three-year period, and that by reason thereof appellee’s operator’s license was suspended for one year. The Department’s action was pursuant to the authority afforded it by KRS 186.570(d), as implemented by regulations duly promulgated by the Department and identified as PSfty-DI-5-1, PSfty-DI-9 and PSfty-DI-10.

Appellee’s attorney advised the Department by letter dated June 14, 1965, that appellee was “aggravated” by the Department’s ruling but did not inform the Department of any ground for his grievance. On June 16, 1965, appellee filed a petition in the Jefferson Quarterly Court seeking relief from the Department’s order suspending the operator’s license. KRS 186.580(2). It is appellant’s contention that the quarterly court acquired no jurisdiction because the appellee was untimely in prosecuting his appeal there. The basis of this contention is the language of KRS 186.580(2), which we quote:

“Any person aggrieved by any ruling of the department relating to the denial, revocation, suspension or cancellation of an operator’s license, or any other safety provision of KRS 186.400 to 186.640, other than orders of revocation or suspension when the facts render revocation or suspension mandatory, shall advise the department of his grievance, stating the grounds for it. In not less than fifteen, nor more than thirty days, the aggrieved party may petition the quarterly court of the county in which he resides, for relief. The quarterly court may grant adequate relief. A copy of the petition shall be filed with the department.”

It is observed that the statute directs that the appeal to the quarterly court be filed “(I)n not less than fifteen nor more than thirty days * * The difficulty is that the statute is vague in fixing the event from which the computation of time is to be made. Appellant insists that it means not less than fifteen nor more than thirty days after the licensee reports his grievance to the Department. The appellee contends that it means not less than fifteen nor more than thirty days after the Department’s order of suspension. We think the appellee’s position on this point is the proper one. To accept the view of appellant would put it within the means of the licensee to postpone transmitting the letter to the Department, at his own pleasure, and thereby fix the appeal time at any period he fancied. We are unable to so construe the statute. In this state of case, the appeal to the quarterly court was timely. In this connection, we feel that the failure of appellee to state his grounds for grievance may not be said to be fatal. Stating the grounds for grievance is merely a directive feature of the statute.

The Department suspended appellee’s license on the basis of his having accumulated twelve “points” within three years. This was in accord with KRS 186.570(d) and PSfty regulations numbered DI-5-1, DI-9, and DI-10. The points were amassed as the result of a speeding conviction (three points), a second speeding conviction (six points) and the payment of a fine by appellee on a charge of failure to yield the right of way (three points). A chief point relied upon by appellee (and apparently accepted by the courts below) is that the third violation, for which the fine was paid, was not as the result of a conviction by any court. Both litigants call attention to Sturgill v. Beard, Ky., 303 S.W.2d 908, in which this court sustained the validity of the “point system” as a basis for suspension of an operator’s license. In this regard, appellee points to the reference in that opinion to the “safeguards” against denial of due process. One of the “safeguards” mentioned in the Sturgill opinion is that the license may not be suspended except for “points” assessed pursuant to convictions of certain named moving traffic violations. See 303 S.W.2d at page 910.

Appellee was never “convicted” of the third violation. He was cited by a Louisville police officer, and availed himself of a convenience afforded by a Louisville ordinance by remitting the fine prescribed through the traffic bureau. In availing himself of the procedure, appellee subscribed a form whereby he entered a plea of “guilty” to the traffic citation, ■waived a hearing, and designated as attorney in fact a member of the traffic bureau with authority to enter appellee’s appearance and the guilty plea. Appellee contends that his use of this convenience and payment of a prescribed fine was not cquatable with a “conviction.” In support ■of that argument he calls attention to Duncan v. Brothers, Ky., 344 S.W.2d 398; KRS 372.140; Levin v. Carpenter, Mo., 332 S.W.2d 862, 79 A.L.R.2d 859; and Commonwealth v. Reynolds, Ky., 365 S.W.2d 853. Without so deciding, we may concede for purposes of this opinion, that there was no “conviction” of appellee incident to his payment of a fine at the traffic bureau. The question remains whether that is dispositive. We do not believe that a “conviction” is required as a condition precedent to the Department’s assessing “points.”

By its regulation PSfty-DI-4, effective July 6, 1957, the Department has specifically declared that use of the “convenience” fine-paying procedure, as was done here, is to be regarded as a “conviction” insofar as it relates to whether the operator may be considered a “reckless” one. The regulation is thus worded:

“(1) Any person who has availed himself of the privilege and option of waiving a hearing on a charge of violation of the traffic laws and paying the minimum fine at Police Headquarters, as is permitted in certain ordinances such as Section 18-12(g), General Ordinances of the City of Louisville or any other similar ordinances, shall be considered by the Department of Public Safety to have been convicted of that charge within the meaning of Regulations PSfty-DI-1, 2 and 3 to the same extent as if he had appeared in court in person and entered his plea of guilty, and such persons shall be assessed the number of points provided in Regulations PSfty-DI-2 for each such violation.” KARs, PSfty-D-4.

It will be observed that KRS 186.570, relating to discretionary suspension of an operator’s license, does not make the operator’s “conviction” a condition precedent to disciplinary action. On the contrary, the statute specifically provides that the license may be suspended “ * * * with or without [a] hearing, and with or without receiving a record of conviction of that person of a crime, whenever the department has reason to believe that: * * * (d) That person is an habitually, reckless or negligent driver of a motor vehicle or has committed a serious violation of the motor vehicle laws.” It is our view that the use of the term “conviction” in Sturgill v. Beard, supra, was dictum; in any event we are not persuaded that a “conviction” is required.

It is because of the broad discretion that is vested in the Department that the appeal procedure is prescribed in KRS 186.580. When the appeal procedure is followed the resulting litigation between the Department and the aggrieved operator is civil in nature. In such circumstances the principle enunciated in Race v. Chappell, 304 Ky. 788, 202 S.W.2d 626, 628, and recently reiterated in Johnson v. Tucker, Ky., 383 S.W.2d 325, 326, is applicable. The substance of that principle is: “On the theory that it is an admission against interest, a plea of guilty to a criminal charge is competent evidence in a civil case involving the same occurrence, but it is not conclusive and may be explained.” Ibid. 383 S.W.2d at page 326.

The record before us contains no part of the quarterly court proceedings except the judgment of that court; the record of the circuit court’s handling of the appeal contains the judgment of the circuit court. Each of the judgments recites that evidence was heard. The evidence is not in the record before us. We must assume, therefore, that the evidence heard was sufficient to sustain the judgments of the courts. Travelers Indemnity Co. v. Patrick, Ky., 386 S.W.2d 256.

What we have said disposes of appellant’s contentions that the proceeding constituted an indirect attack upon the police court judgment (fining appellee on the last charge), as well as the claim that the scope of judicial review was misconceived. The basic scope of the judicial review is concerned with the question of arbitrariness. American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450, 456.

The judgment is affirmed.


author: JOHN J. WINN, Special Commissioner.

text:
    Marie Lillian DUKES, Appellant, v. CITY OF LOUISVILLE, Louisville Gas & Electric Company, Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 16, 1967.
    Howard Lee Van Arsdale, Raymond C. Arny, Louisville, for appellant.

      L. Lyne Smith, Jr., O. Grant Bruton Louisville, for appellees.
   JOHN J. WINN, Special Commissioner.

The plaintiff, Marie Lillian Dukes, fell and was injured on the sidewalk on the north side of the street in front of the premises at No. 523 West Broadway, Louisville, Kentucky. The sidewalk there is concrete laid off in squares and is five (5) sections wide. Throughout the trial and on this appeal the sections or squares have been designated consecutively from 1 at the curb to 5 at the building. She brought suit against the City of Louisville, Louisville Gas and Electric Company, Incorporated, and Merchant and Stoll, Incorporated. At the conclusion of the evidence for plaintiff a motion was made by each of the defendants for a directed verdict and they were all sustained.

Merchant and Stoll was a concrete contractor which had made some repairs and replacements on the sidewalk. There was no evidence of any negligence to justify recovery against it and there is no appeal from the dismissal as to this corporate defendant.

Louisville Gas & Electric Company had recently replaced its gas line into the liq-our store at 523 West Broadway. In order to do so it had employed Merchant and Stoll to do the necessary concrete work and they had taken out sections 2 and 5 of the concrete sidewalk and then had replaced those sections after the Gas Company had put in new pipe from the street by tun-nelling under sections 1, 3 and 4. There was no testimony to the effect that this operation had in any way disturbed or changed the surface of sections 3 or 4 or caused any defect in the sidewalk at the point where plaintiff claimed she received her injury. As is apparent from the arguments on these motions in chambers, this was the ground upon which Louisville Gas and Electric was let out, and while an appeal has been taken against it no argument has been presented to show why its motion for a directed verdict should not have been sustained.

We finally come to the real point at issue and to which all the arguments have been addressed. The appellant insists strenuously that she was entitled to have the question of the city’s liability submitted to the jury. The decision of this point depends upon the sufficiency of the notice. The plaintiff through her attorney gave to the city the notice required by KRS 411.100, the pertinent portion of which was as follows :

“She was caused to sustain these injuries on the 26th of September, 1962, at or about the hour of 12:40 P.M. as she was walking East upon the sidewalk (concrete — five sections from property line to curb) in front of street number, 523 WEST BROADWAY STREET, LOUISVILLE, and the business firm of THE GRAYSTONE LIQUORS, North side of Broadway, and more particularly upon the second section, or second square of concrete sidewalk from the curb-line.
“The defect complained of was sunken, depressed, lower and slipped section of concrete sidewalk, second section and square from the curb-line, at the above named place, address and position, and at least ¾ inches to an inch lower than the adjacent and joining section immediately WEST of this section. This deep and depressed section below the level of the other section was of such depth that she was caused to slip, lose her balance from her right foot and fall to the sidewalk upon her left knee. Since the date of the above mentioned occurrence, the defects have been repaired and corrected, and also, other new sections have been added in the sidewalk. We are advised that some time ago, the Louisville Gas and Electric Company, and before she was injured made some repairs or installations of or to their facilities at this address, and location, as above named.”

Obviously this notice was sufficient on its face, and it was so held by the trial judge when it was first questioned before him at a time before important complications had been brought out. The vice in the notice is not that it is indefinite but that it is too specific, or, properly speaking, specific to the point of being erroneous. Had the notice referred to the “sidewalk in front of 523,” it could be argued validly that a variation of a few feet could not adversely affect the city’s opportunity to investigate and prepare for trial. City of Dawson Springs v. Reddish, Ky., 344 S.W.2d 826; City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517.

The notice here states categorically, not just once but twice, that the injury to plaintiff was caused by a defect in the pavement in section 2. In her discovery deposition she stated and reiterated under vigorous cross-examination that section 2 was the site of her injury, this despite warning given her by the cross-examiner to the effect that he had knowledge that section 2 had been renewed shortly before her fall.

The record discloses without room for doubt that sections 2 and 5 had been repaired when the gas pipe was replaced in July before the accident date of September 26, 1962, and that No. 2 was free of depression or other defect that could be responsible for plaintiff’s fall. Apparently there had been some irregularity in sections 3 and 4 because after the accident they were replaced by the Courier-Journal, the lessor of the liquor store.

Upon the trial the plaintiff completely changed her testimony as to where she had fallen. She testified just as positively then that she had fallen on No. 3 and not on No. 2 as she had testified to just the opposite in her deposition that she had fallen on No. 2 and not on No. 3.

Did the notice as to section 2 suffice within the meaning of the statute to put the city on notice as to the injury received on section 3 ? It has been uniformly held by the courts that the provision must be strictly complied with. The giving of notice is a condition precedent to bringing suit and is jurisdictional. City of Elsmere v. Brown, 297 Ky. 323, 180 S.W.2d 86; Treitz v. City of Louisville, 292 Ky. 654, 167 S.W.2d 860.

It has been stated that the reason for the requirement of notice is to provide an opportunity for the city to investigate all the circumstances and prepare its defense. Spangler’s Adm’r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414; Berry v. City of Louisville, Ky., 249 S.W.2d 118.

As has been forcefully argued here, one might conclude that as a practical matter in making an investigation a variance as between two adjacent sections of concrete ¡could not impose any serious difficulty. Cin the other hand it might be, as is urged on behalf of the city, that it discovered át the outset that the accident could not have happened as specifically stated in the notice because of the newness of section 2 and it was thereby lulled into the justifiable belief that there was no need for any further investigation. Under the peculiar circumstances of this case we are constrained to answer our question in the negative and to hold with the trial court that the notice was not in compliance with the statute.

The report of the argument in chambers! presented the positions and contentions of all the litigants during the heat of the trial and was most helpful to the writer in: his attempt to get a true picture of the issues involved. Therefore, the motion to apply CR 75.05 is overruled.

The judgment is affirmed.

All coricur except Judge STEINFELD not sitting.


author: WADDILL, Commissioner.

text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. NATURAL GAS SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    May 12, 1967.
    Robert Matthews, Atty. Gen., William S. Riley, Cyril E. Shadowen, Dept, of Revenue, Frankfort, for appellant.
    Robert L. Ackerson, Louisville, for ap-pellee.
   WADDILL, Commissioner.

The Department of Revenue, Commonwealth of Kentucky, has perfected an appeal under RCA 1.080 from a judgment ordering it to refund to appellee, Natural Gas Service, Inc., the sum of $2,344.16 which had been paid under protest. This amount represented taxes and penalties assessed against appellee under KRS 136.240(1) and KRS 136.250(3) upon gas sold by it be-, tween January 1, 1952, and May 30, 1959. (These statutes were repealed in 1960 and 1962 respectively). The question presented on appeal is whether the sale of this gas was “in interstate commerce” so as to make it tax-exempt by the provisions of KRS 136.240(2).

Insofar as pertinent to this case, KRS 136.240(1) imposed an excise tax on the sale of natural gas, but subsection (2) of this statute specifically exempted sales “in interstate commerce.” The parties stipulated that natural gas is delivered by Texas Gas Transmission Corporation to appellee near Locust, Kentucky, and from there it is transported by appellee in pipe lines into Indiana. In Kentucky the appellee has provided numerous taps on its line for sale of gas to individual Kentucky customers. Appellee virtually concedes the collection of a tax of this character is not prohibited by the Federal Constitution and relies solely on the statutory exemption cited above.

From the time appellee took possession of the gas near Locust, Kentucky, until it reached the individual meters located on the properties of its 149 Kentucky customers it, was under high pressure. The pressure of this gas was not reduced to a commercially usable rate until it passed through the customers’ meters at which time the sale was consummated. It is the tax upon this sale which is the subject of this action.

While an exact time at which interstate commerce ends has not been drawn (15 Am. Jur.2d, Commerce, Section 59), it is argued by appellee that at the time the statute in question was enacted the Supreme Court had held that interstate commerce of gas ended at some time or place after the gas had been reduced in pressure. East Ohio Gas Co. v. Tax Commission, 283 U.S. 465, 51 S.Ct. 499, 75 L.Ed. 1171 (1931); cf. Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 62 S.Ct. 384, 86 L.Ed. 371 (1942). However, the Ohio case did not determine with finality the place at which interstate commerce ceased. Connecticut Light & Power Co. v. Federal Power Comm., 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945).

We believe, as contended by appellant, that when the gas was irrevocably committed to the pipe lines of the ultimate consumers it had ceased its interstate journey. The language in State of Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027 (1924) seems particularly applicable:

“ * * * The business of supplying, on demand, local consumers is a local business, even though the gas be brought from another state and drawn for distribution directly from interstate mains; and this is so whether the local distribution be made by the transporting company or by independent distributing companies. In such case the local interest is paramount, and the interference with interstate commerce, if any, indirect and of minor importance. * *

The provisions of KRS 136.240(2) exempt only those sales which are an integral part of interstate commerce. Since the sales to appellee’s domestic customers did not affect the progression of the gas being transported out of Kentucky they were not of such impact as to be a burden on that commerce and hence we conclude that they were not sales made in interstate commerce.

The judgment is reversed with directions to set it aside and to enter a new judgment on behalf of appellant.

All concur.


text:
    Edward NUNNELLEE, Appellant, v. Mary L. NUNNELLEE and Walter H. Spillman, Appellees.
    Court of Appeals of Kentucky.
    May 12, 1967.

      Farland Robbins, Mayfield, for appellant.
    Neely, Reed & Hubbard, L. M. Tipton Reed, Carroll Hubbard, Jr., Mayfield, George R. Effinger, Paducah, for appellees.
   THOMAS A. BALLANTINE, Jr., Special Commissioner.

Appellee, Mary Nunnellee, mother of appellant, Edward Nunnellee, recovered judgment against her son in the amount of $5000 for injuries sustained in an automobile accident and appellee, Walter Spill-man, was awarded $300 for damage to his automobile.

This accident occurred at the intersection of Sixth and College Streets in Mayfield. Mary Nunnellee was a passenger in appellant’s automobile which was being driven by his daughter, Jan, age 16. The Nunnel-lee car was going west on College Street and the Spillman car was going north on Sixth Street. The intersection is controlled by a traffic light.

The primary issue concerned which car had the right of way at the intersection, each driver stoutly maintaining that the other driver ran a red light. The jury resolved the dispute in favor of the driver of the Spillman car.

Mary Nunnellee, in a pretrial deposition, stated:

“Q. Did you personally look or possibly look at all — observe the traffic signal as you approached the intersection?
“A. Yes, I saw it was green.
“Q. When did you first notice it was green ?
“A. Just as we approached it, just natural to look and see what color.
“Q. You said it was green?
“A. Yes, it was green.
“Q. Any of the other lights burning, either red or amber?
“A. I didn’t see them if they were.
“Q. It was not in process of changing, so far as you know?
“A. So far as I know.
“Q. Did you continue to watch the traffic signal as you approached the intersection ?
“A. I just saw it was green, was satisfied about it, we were not going very fast.”

She also gave testimony on the deposition which indicated that Jan was operating at a reasonable speed, not more than 25 miles per hour.

Appellant moved the court to dismiss the action by Mary Nunnellee against him based upon the testimony referred to above. The motion was passed to the trial and was renewed before the trial began. A ruling on the renewed motion was reserved.

Appellant moved for a directed verdict at the conclusion of plaintiff’s proof, and the motion was overruled. This ruling had the effect of overruling the two previous motions made by appellant. The motion was renewed at the conclusion of all the proof and was again overruled.

At the trial Mary Nunnellee testified:

“Q. And at that time for traffic headed west was that light red or green?
“A. The light we were approaching I thought was green.
******
“Q. On that occasion as the car in which you were riding approached the traffic light at the corner of Sixth Street and College Street was the light green for traffic coming from your direction or was the light red?
"A. Naturally I looked at the light and it was green.
******
“Q. Give us your best estimate of how far your car was from the traffic light when you looked up and saw it was green ?
■“A. I said there it was 20 feet.
******
“Q. You never did see the light any other color except green — is that correct?
“A. Correct.”

No amount of reasoning can produce any interpretation of the testimony quoted above except that Mary Nunnellee has absolved Jan of any negligence insofar as her claim is concerned.

The resulting situation is startlingly similar to that in Zipperle v. Welsh, Ky., 352 S.W.2d 556, in which the trial court granted a judgment n. o. v. after a verdict for the plaintiffs. In Zipperle the plaintiffs were passengers in the defendant’s automobile. An intersection accident occurred. Both plaintiffs testified that their driver had the green light. In affirming the judgment n. o. v. this court said that other testimony contradicting plaintiffs could not be relied on to explain away the fatal effect of the testimony of the plaintiffs.

It is now well settled in this jurisdiction that one may not deny today what he solemnly swore was true yesterday. Schoenbaechler v. Louisville Taxicab & Transfer Co., Ky., 328 S.W.2d 514. The trial court erred in not directing a verdict for appellant on the claim of Mary Nunnel-lee against him. Since appellant moved for judgment n. o. v. the trial court, on remanal, will enter judgment accordingly.

We turn next to the appeal as against Spillman. Appellant argues that the question of family purpose, upon which the alleged liability of Spillman was based, is one of. law and should not have been submitted to the jury. However, we do not find it necessary to consider this question further since the jury verdict, in part, reads:

“Jury finds that Jan Nunnellee was at fault and did run the red light thus causing said accident. * *

Without regard to any family purpose in the use of the Spillman car, the jury found that the collision was not caused by any negligence on the part of the operator of the Spillman car but was due solely to the negligence of Jan Nunnellee.

Appellant next complains that testimony was admitted showing he was covered by insurance. His motion for a mistrjial was overruled and no admonition was given that the jury could not consider this testimony as affecting the merits of the case. We have held it is proper to show, as here, that a witness represents an insurance company in order to disclose his possible bias. This is an exception to the rule making it reversible error to bring to the jury’s attention the possibility of a party being indemnified by insurance. Roland v. Beckham, Ky., 408 S.W.2d 628; Triplett v. Napier, Ky., 286 S.W.2d 87. In view of the fact the verdict for Spill— man was in the sum of $300 we are unwilling to conclude that the testimony about the insurance constituted prejudicial error in this case.

Other questions raised by appellant concerning the speed of the Spillman car and the City of Mayfield ordinance are not considered since it is obvious from the verdict that the jury found the sole cause of the accident to be Jan Nunnellee’s act of running the red light.

The judgment in favor of Spillman is affirmed and the judgment in favor of Mary Nunnellee is reversed with directions to enter judgment n. o. v. for Edward Nunnellee on her claim against him.

All concur.


author: POPE, Justice. SMITH, Justice. CALVERT, Chief Justice.

text:
    Ex parte Earl M. HOOKS, Relator.
    No. A-11688.
    Supreme Court of Texas.
    March 22, 1967.
    Rehearing Denied May 24, 1967.
    Everett Lord, Beaumont, for relator.
    Ernest Browne, Beaumont, for respondent.
   POPE, Justice.

This is an original habeas corpus proceeding. Relator, Earl M. Hooks, says that the district court was powerless after his children reached their eighteenth birthday to enforce by contempt a judgment for accrued child support that was rendered before they became eighteen. We hold that art. 4639a, Vernon’s Ann.Civ.St. empowered the district court to enforce its order by contempt.

Relator and Geraldine Hooks were divorced in 1946. They had two children, Margaret, born January 29, 1944, and Dina Ray, born June 25, 1945. Hooks did not comply with the court’s orders for child support and on March 31, 1961, after hearing, the court found him in contempt and ordered him to jail. Pie remained in jail until May, 1961. On that date the court rendered a judgment which released Hooks from jail but ordered:

“[Tjhat the defendant, Earl M. Hooks, be held in continuing contempt for the sum of the present arrears in the amount of Four Thousand and Seventy Dollars ($4,070.00) and for court costs in the amount of Six Dollars and Twenty-Five Cents ($6.25) and for attorney’s fees in the amount of One Hundred ($100.00) Dollars in the total amount of Four Thousand One Hundred Seventy-Six Dollars and Twenty-Five Cents ($4,176.-25) but that the defendant, Earl M. Hooks, be released from custody upon the payment of Sixty ($60.00) Dollars each month commencing on the 9th day of May, 1961, said payments to be continued until the youngest child of the marriage * * * shall reach the age of eighteen (18) years and then the defendant, Earl M. Hooks, to be held in continuing contempt until the arrears in the amount of Four Thousand and Seventy ($4,070.00) Dollars has been paid in full; and further that an additional Five Dollars ($5.00) per month commencing on the 9th day of May, 1961, be paid in addition to the Sixty ($60.00) Dollars child support payment until such time as the attorney’s fees and court costs have been paid.”

On May 9, 1961 Hooks was delinquent in his support payments and the extent of his arrearage was definitely fixed by the judgment. Ex parte Savelle, 398 S.W.2d 918 (Tex.1966). On that date Margaret was seventeen and Dina Ray was sixteen so all of the $4,070.00 arrearage accumulated before either of the children had reached the age of eighteen. The 1961 judgment definitely ordered Hooks to pay that sum when the youngest child of the marriage reached age eighteen. Unless he paid it “then,” he would be in contempt until it was paid in full.

Hooks, in compliance with the court’s 1961 judgment, made the monthly payments until the younger child reached eighteen years of age on June 25, 1963. He then refused to comply with the judgment that he pay the delinquent sum of $4,070.00. Hook’s former wife, Geraldine, instituted this contempt proceeding to enforce the 1961 judgment for arrearages in support. After notice, hearing and a trial the court on September 12, 1966, held Hooks in contempt for his non-compliance with the 1961 judgment and order. The parties stipulated that Hooks had failed to comply with the order to pay the arrearage of $4,07(100 and also that he was capable of paying the sum.

Hook’s sole contention is that the district court was powerless to enforce its 1961 order after the youngest child reached the age of eighteen. Article 4639a, V.C.S., is the source of the judicial authority to make judgments concerning child support. The pertinent provisions of the statute are:

“ * * * The court may by judgment order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children, and such court shall have full power and authority to enforce said judgments by civil contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof, * *

The statute is in two parts. The first part empowers the court to order periodical payments until the child reaches eighteen. The enforcement provision immediately follows the grant of powers to order the support. The statute limits orders for support to the pre-eighteen period; the enforcement provision, however, contains no such limitation. Instead, the statute states that the court shall have “full power and authority to enforce said judgments. * * * ”

Hooks says that the district court lost all powers to enforce the pre-existing valid judgment for support at the instant the child reached eighteen. He emphasizes his position by reference to the 1961 order which ordered him “then” to be held in continuing contempt until the arrearages were paid. He concludes that this is an order for child support after the children reached eighteen. In our opinion Hooks has confused the power of the court to order support during the pre-eighteen period with the court’s power to enforce an order. The entire sum embodied in the 1961 order in question was determined as a fixed and certain amount that was delinquent during the time the children were less than eighteen.

Hook’s contention infers a legislative intent that an order to pay accrued support payments would be wholly undone by the delinquent parent who, as Hooks has done, successfully persuades a judge to postpone payment of delinquent support payments until the child reaches eighteen. It would mean that a contemnor who is in jail by an order entered before a child reaches eighteen, must be discharged when the child becomes eighteen despite his continued contumacious conduct. It would mean that a delinquent parent, as a practical matter, could always escape the final payment of child support. We should cautiously attribute such reasoning to the Legislature.

Article 4639a was enacted for the purpose of affording judicial power to a divorce court to decree and compel the payment of allowances for the support of dependent minor children after the entry of the divorce decree. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931). A contempt proceeding is the only means of enforcement of a valid support order. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957). There is no power to enforce a support judgment by execution, Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953 (1936), nor by garnishment, McDonald v. Mercantile National Bank, 162 S.W.2d 991 (Tex.Civ.App.1942, no writ). Since the only means for enforcement is by contempt proceedings, and since the Legislature expressly stated that the court has “full power and authority to enforce said judgments by civil contempt proceedings,” we conclude that it intended that this full power should not be shortened by narrowly construing its intent. The legislative purpose was to provide a means to enforce judgments for the support of children beneath the age of eighteen, not to wipe them out.

The relator, Earl M. Hooks, is remanded to the custody of the sheriff of Jefferson County, Texas.

CALVERT, C. J., and SMITH, GREEN-HILL and STEAKLEY, JJ., dissenting.

DISSENTING OPINION

SMITH, Justice.

I respectfully dissent. I would hold the judgment of contempt void because the so-called judgment of May 9, 1961, holding Hooks “in continuing contempt,” is not a contempt judgment, but is in reality an agreed judgment. The judgment of May 9, 1961, is only a recitation of an agreement between the parties. The agreement merely recognizes an indebtedness. The former Mrs. Hooks had recourse to the courts upon breach of the agreement to enforce the same, but at no time did she have the right to substitute contempt proceedings for the legal remedy open to her. Hooks lived up to the agreement by making monthly payments until June 25, 1963, the date the youngest child of the marriage of Hooks and Geraldine became eighteen years of age. Thereafter, on January 22, 1964, Geraldine instituted a new contempt proceeding against Hooks when her only remedy was to institute a suit in a court of competent jurisdiction to enforce the agreement to pay the debt of $4,070.00. The contempt judgment of September 12, 1966, held Hooks in contempt solely because he failed to carry out the so-called judgment of May 9, 1961. The May 9th, 1961, judgment was incorporated into and made a part of the new judgment.

Hooks contends here that the contempt judgment is too vague, indefinite, and uncertain to be enforceable; therefore, it is void. When the history of this case is traced from its inception, it should be recognized that a sounder reason exists than that advanced by Hooks as to why he not be held in contempt. In effect, Hooks is being denied due process of law, in that, he is now confronted with a proceeding for contempt at a time after an agreement was reached between the parties.

The record shows that Hooks and Geraldine were divorced in 1946. The divorce decree awarded the custody of their two children, Margaret, born in 1944, and Dina Ray, born June 25, 1945, to Geraldine and ordered Hooks to make child support payments to the mother for the benefit of the two children. On March 31, 1961, Hooks having failed to comply with the Court’s order, and after a hearing, was found to be in contempt. Hooks was ordered to jail and remained there until he was released in accordance with the May 9th, 1961, agreement. At that time, the children were both under eighteen years of age. The trial court released Hooks from jail obviously for the reason that Hooks was not financially able to pay the delinquent payments. In lieu of ordering Hooks to jail until he purged himself of contempt by paying the sum then due, the court approved the agreement of the parties entered into on May 9, 1961. I cannot conceive of any District Judge being so inconsiderate of the welfare of the children as to release a father from custody knowing that he was financially in a position to pay the arrearage. To the contrary, I must presume that the judge realized on May 9, 1961, that Hooks was unable to pay $4,070.00 or any part thereof; otherwise the court would not have released Hooks from custody.

Geraldine, instead of pursuing a course of harassment which would lead to the ultimate incarceration of the father of her children, should have filed a suit in behalf of the children to collect the $4,070.00 delinquency. It is stipulated in this record that Hooks owes the sum of $4,070.00 and is now able to pay the same. While it is true that there is no evidence in the record as to Hooks’ financial status in May, 1961, I contend that he was discharged and released from confinement on May 9, 1961, because he had purged himself of contempt by agreeing to pay the sum of $4,070.00 in* the manner stated in the May 9, 1961, judgment or agreement. Therefore, Hooks has satisfactorily purged himself. The May 9, 1961, judgment merely evidences an agreement to pay $4,070.00.

I assume that Geraldine has maintained and supported the children during all of the time involved. The sums expended by her may have been more or may have been less than $4,070.00, but regardless of the amount of the claim she may have as a result of supporting the children, this Court should not at this late date allow Geraldine to use the courts in a contempt proceeding to collect the debt. Hooks has previously been confined. He has satisfied the demands of the court in the manner above indicated. The trial court, on September 12, 1966, retried Hooks for the same charge of contempt as the one for which he was tried in March, 1961. The trial court had no power or jurisdiction to proceed against Hooks and hold him in contempt merely because a judge, after a hearing, entered an order which recited that Hooks shall be “held in continuing contempt.” See Loy v. Loy, 32 Tenn.App. 470, 222 S.W.2d 873 (1949).

I would discharge the Relator, Hooks.

DISSENTING OPINION

CALVERT, Chief Justice.

I respectfully dissent. I would hold the judgment of contempt void for two reasons: (1) The order Hooks is charged with violating will not support the judgment, and (2) the trial court had lost jurisdiction of the subject matter when the judgment of contempt was entered.

To put the issues in proper perspective, it will be well to point out what the majority have not held. They have not held that Hooks may be imprisoned under the terms of the March, 1961 judgment. They could hardly do so in view of the recitation in the May, 1961 judgment that the “matter [of prior contempt] had been satisfied by agreement.” Moreover, when the May, 1961 judgment materially changed the terms of the 1946 order of support, Hooks could no longer be in contempt of the first order, whether his violation of it occurred before or after the modification. See Miller v. Railroad Commission, 9 Cal.2d 190, 70 P.2d 164, 112 A.L.R. 221 (1937); Warder v. Shufeldt, 40 N.M. 442, 62 P.2d 812 (1936); Peck v. Yorks, 32 How.Pr. 408 (N.Y.1867); 17 Am.Jur. 52, Contempt § 48. Neither does the majority holding appear to give any effect to the provision of the May, 1961 judgment which purports to adjudge in advance that Hooks was in contempt — “continuing contempt” — if he should fail to carry out its terms. That is understandable. An advance adjudication of contempt would deny the right to present defenses when violation of the order occurred and would be a denial of constitutional due process.

Hooks was adjudged by the trial court to be in contempt for violation of the “child support orders of May 9, 1961,” and those orders alone. Unless the order of May 9, 1961, directing him to pay $4,-070 will support the judgment of contempt, he should be released. To this, I understand the majority agree. I suggest that the order directing Hooks to pay $4,070 will not support the judgment of contempt for alternative reasons: (1) It did not fix a definite time when he was commanded or required to make the payment, or (2) the court had no power to require him to make the payment at the time fixed by the order.

The validity of the judgment of March 30, 1961, committing relator to jail until he paid support arrearages of $3,700 is not questioned. Assuming the validity of that judgment, the court nevertheless had the power to release relator from incarceration whether or not he had purged himself of contempt by making the payment. This the court did. The court also had the power by virtue of the express language of Article 4639a to alter or change its original support order. This the court also did. The terms of the order entered on May 9, 1961, are less than clear. As pertinent here the order reads:

“ * * * that the defendant, Earl M. Hooks, be released from custody upon the payment of Sixty ($60.00) Dollars each month commencing on the 9th day of May, 1961, said payments to be continued until the youngest child of the marriage of the above parties shall reach the age of eighteen (18) years and then the defendant, Earl M. Hooks, to be held in continuing contempt until the arrears in the amount of Four Thousand and Seventy ($4,070.00) Dollars has been paid in full; * * *.”

It seems obvious to me that this order fixed no definite time at which Hooks was required to make the payment of $4,-070. His monthly payments were to be continued until the younger child reached age eighteen, “and then," the order said, Hooks was to be “in continuing contempt until the arrears” in the amount of $4,070 had been paid in full. He was not expressly required or commanded to pay the $4,070 when the younger child reached age eighteen, but he was to be in contempt if he did not pay it then or thereafter.

We announced the controlling general rule in this area in the very recent case of Ex parte Eugene L. Slavin, Tex., 412 S.W. 2d 43, in this language:

“It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.”

In Slavin we quoted language from Ex parte Duncan, 42 Tex.Cr. 661, 62 S.W. 758 (1901), to the effect that when a court seeks to punish for disobedience of an order, the order “must be in the form of a command, and, when tested by itself, must speak definitely the meaning and purpose of the court in ordering.” The indefiniteness in the order in Duncan was in the time fixed for performance of the ordered act. The holding of the majority in this case seems to me to be in direct conflict with the holdings in Slavin and Duncan. If the May, 1961 order fixed a time when Hooks was required to pay the $4,070, it was only by inference.

If the order fixed a time by inference when Hooks was required to pay the $4,070, the time was when the younger child reached age eighteen. The court had no power to require Hooks to make a support payment at that time, regardless of whether the payment was for pre-eighteen or post-eighteen support. This would seem to be crystal clear from the history of Article 4639a and prior judicial decisions.

Before enactment of Article 4639a in 1935, the law of this State did not authorize a court to require a parent to contribute to the support of his or her children except during the pendency of a divorce suit. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931). Inasmuch as trial courts had no power before enactment of the statute to order a parent to make child support payments after a divorce judgment became final, the extent of the power conferred by the statute must be measured by the terms of the statute. See Ex parte Taylor, 137 Tex. 505, 155 S.W.2d 358 (1941). The provisions of the statute conferring and limiting the power are as follows:

“ * * * and said court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of eighteen (18) years, or, said court may enter a judgment in a fixed amount for the support of such child or children * * * Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.”

It is at once apparent from the wording of the statute that the limitation on the period in which child support payments, either periodic or lump sum, may be required by the power thereby conferred, is when the child or children reach the age of eighteen. Our appellate courts have consistently held that our trial courts have no power to require a parent to make support payments beyond the time limited by statute. Thus when power of the courts to order child support payments was by statute limited to the period of time while divorce suits were pending, we recognized in Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931) that by our decision in Ex parte Davis, 101 Tex. 607, 608, 111 S.W. 394, 17 L.R.,A.N.S., 1140 (1908), we had declared the law to be that trial courts had no power by orders entered pending divorce to compel a husband to make payments for the support of his children “beyond the date of entry of the final judgment.” See 40 S.W.2d 50. And see Ex parte Gerish, 42 Tex.Cr. 114, 57 S.W. 1123 (1900), in which the court held that a trial court judgment, incorporating the terms of an agreement of the parties as here, ordering child support payments beyond the time when a divorce judgment became final was to that extent void; and that a commitment of the defaulting husband to jail for contempt for failing to comply with the order was a violation of his constitutional right against imprisonment for debt. In Ex parte Hatch, 410 S.W.2d 773 (Tex.Sup.1967), only recently decided, we held under the present statute that a judgment which purported to require a father to make support payments for the benefit of a child both before and after she reached age eighteen “could be enforced only by contempt proceedings for failure to make payments due before the child reached eighteen years of age.” If the trial court had no power to require Hooks to make the payment of $4,070 after the younger child reached age eighteen, the order so doing is void; and it cannot be controlling that payment was ordered one hour rather than one year after she reached eighteen. The rule is well settled in this State, and is one of general acceptance, that a person may not be punished as for contempt for violating an order which a court had no power to enter, and may not be imprisoned to compel obedience to the order. Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800 (1958); Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (1948); Ex parte Castro, 115 Tex. 77, 273 S.W. 795 (1925); Ex parte Armstrong, 110 Tex.Cr. 362, 8 S.W.2d 674 (1928); 17 Am.Jur.2d 46, Contempt § 42; 12 A.L.R.2d 1059.

From the foregoing authorities, the law would seem to be settled that the contempt power may not be employed to punish for violation of, or to coerce compliance with court orders which fix no definite time for performance of the ordered act or which require performance beyond the time limited by statute. I can find nothing in Article 4639a indicating a legislative intent to change the well settled law of contempt. Thus the fact that “The entire sum embodied in the 1961 order in question was determined as a fixed and certain amount that was delinquent during the time the children were less than eighteen” cannot validly support the judgment committing Hooks to jail unless he was commanded to pay the same at a definite time before the younger child reached age eighteen. The majority seem to attach some overriding significance to the fact that when Article 4639a was enacted a provision was included conferring “full power and authority” to enforce ordered support payments by civil contempt proceedings. I attach none. The enforcement provision of the statute is pure surplusage; once the power to order support payments was conferred, the courts automatically had full power to enforce such payments by contempt proceedings, and no express grant of such power was needed. See Ex parte Davis, 101 Tex. 607, 608, 111 S.W. 394, 17 L.R.A.,N.S., 1140 (1908).

My second reason for saying that the contempt judgment is void, at least to the extent of its coercive provision, is because when it was entered the trial court had lost jurisdiction of the subject matter. On this question the temporary alimony cases are analogous. In Wright v. Wright, 6 Tex. 29 (Tex.Sup.1851), the trial court had ordered the husband to make alimony payments during pendency of a divorce suit. When the suit was later dismissed, three-fourths of the ordered payments had not been made. The wife sought collection of the arrearage through execution. Recovery was denied, not on the ground that such payments could only be enforced by contempt proceedings but for a more fundamental reason. The reason is found in the following language of the court (6 Tex. 31—32):

“ * * * On the dismissal of the suit the order for alimony had no longer legal subsistence or vitality * * *. It is true that three-quarters of the alimony were unpaid; but whether it was the fault or misfortune of the appellee [wife] or fraud of the appellant [husband] that payment had not during pendency of the suit been enforced is in any aspect presented by this case wholly immaterial. For whatever may be the right of appel-lee, or whatever may be the wrong suffered from the appellant in relation to this claim, yet redress cannot be obtained by means of compulsory process upon a reversed and annulled judgment or decree. * * *
“Alimony during pendency of the suit is given to the wife for her present support, and the presumption is that it has been paid according to the terms of the decree, or that summary measures will be taken to secure its payment.”

Wright v. Wright was followed in Ex parte Norton, 118 Tex. 581, 17 S.W.2d 1041 (1929). In that case the trial court ordered a husband to make certain alimony payments during pendency of his divorce suit. He sought to take a nonsuit, but the court refused to grant it and thereafter held him in contempt for failure to make the payments. The court assessed a fine of $50 against the husband and ordered him committed to jail for three days and until he paid back alimony in the sum of $120. This court discharged the husband, holding that he had a right to take a nonsuit, and said (17 S.W.2d 1043):

“Had the court granted relator his legal rights and dismissed the divorce suit when he in open court took a nonsuit, he would have lost jurisdiction of the divorce proceedings as such, and would have had no power or jurisdiction to enter a contempt order for failure of relator to pay alimony, and, had the relator been accorded the right which was absolutely given him under the statute, there would have been absolutely no way to enforce the payment of the back alimony claimed by the wife."

The two cases last cited stand for the broad proposition that when the event occurs which marks the outer limits of time within which support payments can be required, the court loses jurisdiction of the subject matter and can no longer enforce such payments by contempt or otherwise. The specific question presented by this case was noted but not decided in Ex parte Smart, 152 Tex. 229, 256 S.W.2d 398 (1953). But while it has not been decided in this State, it has been decided in other jurisdictions.

The question was squarely presented and decided by the Supreme Court of Oklahoma in McCartney v. Superior Court, Okmulgee Division, 187 Okl. 63, 101 P.2d 245 (1940). The Oklahoma statute providing for custody and support of children of divorced parents was remarkably like the Texas statute except that support payments could be ordered during minority. In McCartney the former wife sought through contempt proceedings instituted after the child of the parties had reached her majority to compel the father to pay support installments which accrued during the child’s minority. The court stated the question to be decided thusly:

“The question involved is one of jurisdiction. Does the court retain its jurisdiction to enforce those payments, or did its jurisdiction terminate by operation of law when the minor reached the age of majority?”

The court answered that it was obvious from the language of the statute that the jurisdiction of the court to punish for contempt terminated with the child’s attaining majority. And with the question again squarely presented in Lowry v. Lowry, 189 Okl. 650, 118 P.2d 1015 (1941), the Oklahoma court said:

“The purpose of the order in this case was the support of the minor children. * * * The force and life of the order expired on the date the youngest child attained majority. * * * We hold, therefore, that the trial court does not have jurisdiction to enforce its order to pay child support by contempt proceedings on accrued unpaid installments commenced after the child has reached majority.”

The Oklahoma cases were cited with approval and followed, in the face of a vigorous dissent, by the Supreme Court of Minnesota in Lieder v. Straub, 230 Minn. 460, 42 N.W.2d 11 (1950), in which the court held that the trial court did not “have jurisdiction to enforce by contempt the payment of unpaid support money accruing prior to attainment of majority.” Accord, Zieman v. Zieman, 265 Minn. 190, 121 N.W.2d 77 (1963). In Minnesota as in Oklahoma, the courts were authorized to order support for children during minority.

In Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764 (1952), the Supreme Court of Indiana made the same holding with respect to a statutory provision for support of minor children, saying:

“The extraordinary remedy of attachment for a civil contempt of court is available, not for the protection of the one having custody of the child, but for the benefit of the child, so that it may not want for necessities during the period of its minority. When the child reaches its majority the purpose and justification for the extraordinary remedy cease, and the court has no right to coerce the back payments of support by imprisonment.”

The same rule has been adopted in Mississippi and Wisconsin. See Sides v. Pittman, 167 Miss. 751, 150 So. 211 (1933), and Halmu v. Halmu, 247 Wis. 124, 19 N.W.2d 317 (1945). The Supreme Court of Oregon reached an opposite conclusion without discussion of the jurisdictional problem. See State ex rel. Casey v. Casey, 175 Or. 328, 153 P.2d 700, 172 A.L.R. 862 (1944). With such overwhelming agreement on the issue among courts of last resort of other states, I think we would do well to follow the majority rule.

All of the equities in this case and some considerations of social policy weigh against relator. Relator did not support his children to the extent the court found him able to support them. He admits he is now able to make all payments he failed to make under the court’s original judgment and which he has refused to make under the new judgment of 1961. But the question is one of judicial power and not one of equities or policy. Nevertheless, one policy consideration weighs on the side of relator. In this case the defaulting father is adjudged in contempt more than three years after the younger child reached age eighteen. Will the next contempt judgment requiring the payment of arrearages as a condition of purging be delayed five years? And the next, ten years and after the child’s earnings are more than the father’s? Where is the end?

I would discharge relator from the penalties and restraints of the void judgment.

GREENHILL and STEAKLEY, JJ., join in this dissent.

      . Emphasis throughout is mine.


author: STEAKLEY, Justice.

text:
    Ex parte J. B. HARVILL, Relator.
    No. B-164.
    Supreme Court of Texas.
    May 24, 1967.

      McWhirter & Braswell, Henry Braswell, Paris, for relator.
    Raymond R. Johnson, Sulphur Springs, G. C. Butler, Bonham, for respondent.
   STEAKLEY, Justice.

This is an original habeas corpus proceeding. The background facts are these. In cause No. 25,226 in the 62nd Judicial District Court of Lamar County, Texas, Carrie Lee Smith sued her husband, Ben Ray Smith and Granville C. Farmer and the Liberty National Bank in Paris. The suit was for divorce, the adjudication of certain property rights and a division of the community estate. A final decree was entered under date of June 5, 1965. J. D. Beaty was appointed receiver to take charge of all the property, real and personal, comprising the community estate of Carrie Lee Smith and Ben Ray Smith. Included in such properties was a tract of land situated in Lamar and Red River Counties, consisting of 2,148.744 acres, more or less. Farmer had asserted a claim against this property under a deed from Ben Ray Smith but was decreed to have no claim, right, title or interest therein, the jury having found that the deed, if any, from Smith to him was a fraudulent conveyance. The receiver sought to take possession of the property but found Relator in possession. Relator refused to yield possession and on February 28, 1967, the receiver filed a contempt complaint against him. Relator, who is a licensed attorney of Texas, was not a named party in the prior divorce proceeding but did appear therein as an appeal counsel for Farmer in the application for writ of error filed in his behalf. Relator was ordered to show cause in the contempt proceeding and hearing was held on March 10, 1967, at the conclusion of which Relator was adjudged guilty of direct and constructive contempt, assessed a fine of $100.00 and ordered confined in jail for three days and continuously thereafter “until he shall purge himself of contempt of court by delivering into the possession of the receiver the aforementioned property and by ceasing and causing to be ceased by himself and all others under his control and direction, all interference with the receiver’s possession and control of said property.” Relator thereupon filed his petition for writ of habe-as corpus which was granted by this court on March 14, 1967.

Relator testified in the contempt hearing that he leased the property from Farmer in 1959 since which time he has been in management and possession thereof; that the lease is not of record; that Farmer was in possession of the property at the time of the lease to him; that he paid rent to Farmer on the property “until a few months ago; ” and that he did in fact refuse to yield possession to the receiver. This testimony was not disputed. Moreover, upon finding Relator in possession of the property the receiver did not bring suit to try title or gain possession by any of the accepted forms of action such as suit in trespass to try title or forcible entry and detainer. As a result, Relator’s right of possession as a claimed lessee has not been adjudicated in any form of action in which he has been named as a party and thereby afforded the ordinary incidents of civil litigation such as the right to a jury trial. Our question, then, is whether the coercive summary contempt proceeding utilized against Relator in the manner and under the circumstances here shown afforded him due process of law. We hold that it did not.

It was, of course, the duty of the receiver to take possession and control of the property in question since it was specifically described in the decree as included in the community estate of Carrie Lee Smith and Ben Ray Smith. It is the well-settled rule, however, that a receiver cannot ordinarily take into custody through summary proceedings property found in the possession of strangers to the record who claim adversely. Ex Parte Renfro, 115 Tex. 82, 273 S.W. 813, 40 A.L.R. 900 (1925). We there held a contempt punishment order void as denying due process, saying, upon the basis of extensive citations:

“The ordinary course to pursue in such cases where a receiver desires to obtain possession of property in the hands of a stranger to the receivership suit, claiming adversely, is either for the receiver to bring an action against the third party, or for the plaintiff to make him a party to the suit and have the receivership extended to him. Contempt proceedings are not appropriate.”

Ex Parte Renfro has become a leading case on this question. It is the subject of an annotation in 40 A.L.R. at p. 900 and is cited in 2 Clark on Receivers, 3rd ed., chapt. XXI, ¶[ 636, p. 1049, where the rule is stated as follows:

“When the party against whom action is asserted is not a party to the main case, then it is customary to proceed against him by plenary suit or ancillary bill.”
* * * * * *
“Title or the right to property cannot be tried in a contempt proceeding. What is meant by this well settled rule is that a court in ouch a proceeding cannot by its order take property from the actual possession of a stranger to the action in which a receiver is appointed who claims title to it or right to its possession. Such an order would be void, because one in possession of property, cannot be dispossessed without due process of law, which means an appropriate action brought against him, whereupon issues are framed and a regular trial before a court or jury, wherein his title or right to retain possession may be determined, and a proceeding in contempt is not such an action.”

See also Ex Parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936) holding that the appointment of a receiver does not grant the court power to take property from the possession of a third person who is not a party to the litigation; further, that resort to summary proceedings is not suitable to settle conflicting claims.

Respondent contends that Relator is bound by the terms of the original judgment in the cause because he was an appeal attorney for Farmer and necessarily acted with full knowledge of the provisions of the judgment; that he is also presumed to have notice of record title in Ben Ray Smith; that the purported lease from Farmer to Relator is patently invalid in light of the judgment; that the contempt hearing record was amply sufficient to support the findings of the trial court; and that Relator was acting in concert and conspiracy with Farmer and Smith to defeat the enforcement of the judgment.

The fact the Relator appeared as appeal counsel for Farmer, his alleged lessor and a party litigant, with presumed knowledge of the judgment, is not sufficient to bind Relator to the judgment. This is not a comparable situation to that involved in Miller v. Dyess, 137 Tex. 135, 151 S.W.2d 186, 137 A.L.R. 578 (1941) holding an attorney bound by a judgment to the same extent as a named party under facts showing that the attorney had a contingent interest in the subject matter of the litigation conveyed to him by a litigant and that he directed the trial of the case. The elements of actual ownership by the attorney in the subject matter of the litigation, as well as active participation in the trial of the case, are common to the cases binding an attorney of record to a judgment when he is not a named party. Cf. Seiter v. Marschall, 105 Tex. 205, 147 S.W. 226 (1912) and Houston Oil Co. of Texas v. Village Mills Co., 241 S.W. 122 (Com.App.1922). The testimony of Relator, which was not disputed, that he had been in possession of the property under lease from Farmer since 1959, a time prior to the instant litigation, also precludes a pendente lite situation such as that considered in Latta v. Wiley, 92 S.W. 433 (Tex.Civ.App.1906) error ref., cited by Respondent. Walker v. Clark, 203 S.W.2d 590 (Tex.Civ.App.1947), no writ, also relied on by Respondent, was a suit for damages for confinement in jail under a contempt judgment; the immediate problem of the appeal, however, was one of venue. In the course of the opinion the Court recognized the principles we have stated but found them inapplicable under evidence that possession of the property withheld from the receiver arose subsequent to, and with notice of, the receivership suit and with knowledge of the true owner. Such is not the case here. Additionally, there was no evidence adduced at the contempt hearing supportive of the trial court findings that in withholding possession of the subject property Relator was acting as an agent of a party to the judgment, or in concert and conspiracy with a party to the judgment. It may very well be, as Respondent argues, that the lease under which Relator asserts the right of possession is invalid and will be so held in event of a trial of this issue. This does not, however, gainsay the fact that such issue has not been tried in a proceeding in which Relator was a party or in which, notwithstanding, a judgment would be binding on him.

As before noted, the court also found Relator guilty of direct contempt predicated upon the fact that upon demand in open court in the contempt hearing he restated his refusal to yield possession of the property to the receiver. Respondent urges the validity of the contempt punishment upon this additional basis. Direct contempt is grounded upon disrespectful conduct concerning the dignity and authority of the court committed in the presence of the court under which circumstances the judge is not required to follow constructive contempt procedures of complaint, notice and hearing. See Ex Parte Norton, 144 Tex. 445, 191 S.W.2d 713 (1946). Such is not the case here. Relator did no more than assert the right for which he was on trial and due process would be rendered for naught if such assertion could be converted into an act of direct contempt in the manner here shown.

We are not unmindful of the circumstantial inferences which, no doubt, impelled the trial court to take the coercive action under review. But Relator has not been given due process of law in determining his right of possession and the decree punishing him for contempt is void.

Relator is ordered released.


author: MORRISON, Judge.

text:
    Dearl M. FLOWERS, Mack R. Bolin and Glen E. Phifer, Appellants, v. The STATE of Texas, Appellee.
    No. 40179.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Rehearing Denied June 7, 1967.
    John H. (Buddy) Rogers, Odessa, Murray J. Howze, Monahans, for appellants.
    Jack Tidwell, Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The record has now been perfected, and our original opinion dismissing this appeal is withdrawn.

The offense is felony theft; the punishment assessed by the jury against each of the three defendants is two years in the Department of Corrections.

In their brief filed in the trial court appellants contend that the court erred in failing to grant their motion for an instructed verdict of not guilty “after presentation of the State’s case in chief.” The evidence as a whole will be considered. Cross v. State, 100 Tex.Cr.R. 88, 271 S.W. 621, and Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674.

Deputy Sheriffs Kevil and DePriest testified that at 1:00 a. m. on the night in question while on patrol west of Odessa they observed the lights of a motor vehicle ignite in a pasture some distance from the road and proceed toward the highway upon which they were traveling. This alerted the officers, and they turned around and pursued the vehicle which they were able to identify as a pickup truck. After following the pickup for some distance, it made an unlawful U-turn, and they then turned on the red light on the patrol car and finally brought the pickup to a halt approximately the same place where they had seen it leave the unfenced pasture and enter the highway. After the pickup was halted, the driver, who is appellant Flowers, ran for a distance toward a nearby railroad before warning shots fired by one of the officers brought him to a halt. The three occupants of the pickup were placed under arrest, one for failure to have a valid driver’s license, one for allowing an unlicensed operator to drive his motor vehicle, and the third for being drunk. After taking the three to jail, the arresting officers returned to the scene where they had seen the motor vehicle turn on its lights and some one hundred yards from that point they found that certain telephone wires had been cut and observed tire markings immediately adjacent thereto, as well as shoe tracks.

Early the next morning another group of officers came on duty and began investigating the source of 750 pounds of telephone wire which were found in back of the pickup. The right shoe or boot was taken from each of the appellants and carried to the scene of the missing telephone wires where photographs were made of each shoe and the imprint it had left and which the officers said were identical. Photographs were also taken of the tire tracks left at the scene of the theft, and the officers said they resembled the tread of a tire on the pickup.

It was shown by the testimony of the person in charge of the telephone lines that the wires were intact at the point involved in this prosecution on the day preceding the night in question, but that the wires were missing when he went to the scene in answer to the Sheriff’s call the next morning.

Appellant Bolin, testifying in his own defense, stated that he was a tree surgeon and had worked the day preceding their arrest with appellants Flowers and Phifer at a point some distance from the city of Odessa. He stated that at the end of their day’s labors he left the place where they had been working in his pickup with appellant Flowers, that appellant Phifer traveled with someone else to Odessa, and that en route, he and Flowers stopped to help a man in a stalled truck and wound up buying the wire in question from him for $150.00. He stated that he had not seen this man before and had been unable to locate him since. He stated that he and Flowers met Phifer at a tavern in Odessa, and the three spent the evening drinking in several taverns and were riding around when apprehended by the officers. He denied that they had come upon the highway from the pasture or that he had participated in the cutting of the wire from the telephone poles. He eliminated any discussion in this opinion as to the proof of value of the wire because of his admission that he thought the wire was worth the $150.00 he had allegedly paid for it. He further admitted that he had made no demand for the return of the wire when he was released after paying the misdemeanor traffic fine.

Appellant Phifer testified that he saw the wire in the back of Bolin’s pickup, but knew nothing of when or where it had been acquired.

Both appellants who testified admitted that appellant Flowers had fled on foot after the pickup was brought to a halt by the officers.

The jury chose to reject appellants’ testimony, and we find the evidence sufficient to support the jury’s finding of guilt under a circumstantial evidence charge.

Appellant’s next ground of error is the admission of the pictures of the shoes and boots and their matching prints in the earth at the scene of the missing wire. We have concluded that two cases by this Court and the annotation which appears in 35 A.L.R.2d 856, dispose of this ground of error. In Chase v. State, 97 Tex.Cr.R. 349, 261 S.W. 574, this Court said:

“That the shoes of appellant were taken from the jail without his consent and fitted in tracks connected with the crime which form links in a chain of circumstances, and found to correspond with the tracks, and these facts were offered in evidence, would not be objectionable on the ground that this compelled him to give evidence against himself.”

This rule of admissibility of evidence concerning fitting the accused’s shoes into tracks found at the scene of the crime was again established in Landry v. State, 117 Tex.Cr.R. 396, 35 S.W.2d 433.

We are not impressed with the distinction sought to be made in the case at bar because appellants were being held on misdemeanor charges at the time the theft investigation was begun, and officers took their footwear in the course of such investigation.

Appellants’ last ground of error relates to a ruling of the court to which no objection was made.

Finding no reversible error, the judgment is affirmed.