text:
    James H. WADE, Plaintiff-Appellant, v. Helen WADE, Defendant-Respondent.
    No. 31955.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      John Grossman, St. Louis, for plaintiff-appellant.
    Tremayne, Joaquin, Lay & Carr, Clayton, Hale W. Brown, Kirkwood, for defendant-respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an appeal from an order of the St. Louis County Circuit Court, setting aside a decree of divorce granted to the appellant husband (plaintiff) on July 30, 1963.

The pertinent sequence of events and the dates of those events are as follows;

Petition for divorce filed June 5, 1963; summons thereon issued by the clerk on June 7, 1963; service of summons had upon respondent (defendant) on June 11,1963 by Sheriff of St. Louis County and return thereon; default and inquiry granted July 19, 1963, and cause set for hearing on July 30, 1963.
On July 30, 1963 the plaintiff appeared in person and by his attorney, and the defendant, although being thrice called, came not and was in default.

The cause was submitted to the court, which found that plaintiff was the innocent and injured party and entered its decree of divorce, awarding to the defendant the care, custody and control of the minor child, Christopher James Wade, born November 21, 1945, with rights of visitation and temporary custody and that defendant have and receive the sum of $20 per week as and for the support of said child.

On August 17, 1963, more than 15 days after the entry of judgment, Respondent (defendant) filed her Motion to set aside default judgment of July 30, 1963. Attached to said Motion was a pleading, called “Defendant’s Answer.” On October 18, 1963, Respondent’s motion to set aside default judgment was overruled. On October 24, 1963, Respondent through other counsel filed a pleading called “Defendant’s Motion for New Trial.” Attached to said pleading was Defendant’s Motion to Set Aside Default Judgment entered on July 30, 1963.

On November 1, 1963, defendant filed her Motion to set aside the judgment, and in the prayer of said Motion defendant requested leave to file her answer and cross-bill; attached to said Motion was defendant’s Answer and Cross-bill.

The first paragraph of said Motion sets forth the fact that it was brought and filed under Rule 74.32 of the Rules of Civil Procedure of the Supreme Court, V.A.M.R., and also under the common law provisions for a writ of error coram nobis. In said Motion defendant alleged as a ground for said Motion that Appellant (plaintiff) failed to follow the provisions of Rule 26-E of the St. Louis County Circuit Court in that neither the Appellant nor his attorney notified Defendant by mail of the date of the trial of the case nor was a copy of such mail notice filed in the cause. Another ground in said Motion was to the effect that plaintiffs petition for divorce, on its face, wholly fails to state a cause of action for divorce or any claim upon which relief could be granted.

It was also alleged that the failure to comply with Rule 26-E and the fact that the petition failed to state a cause of action appeared on the record. Rule 26-E, effective September 1, 1960, is as follows:

“In all default or non-contested domestic relations matters, where defendant is not represented by attorney and service has been other than by publication, it shall be the duty of the attorney for the plaintiff to notify the defendant by mail of the date of the trial, setting a sufficient length of time before such trial date as to afford the defendant an opportunity to appear at such trial, and a copy of said notice shall be filed in the cause; however, said notice shall not be required if the defendant appears for trial or is represented by a duly licensed attorney.”

Thereafter, on April 17, 1964, the court sustained defendant’s motion to set aside the judgment and, in doing so stated that “Defendant’s motion to set aside judgment heretofore filed is sustained and the Court sets aside the judgment heretofore entered in this case on July 30, 1963, and holds same for naught, since an irregularity, patent on its face, appears on the record in this case in violation of Rule 26-E, Rules of the Circuit Court of St. Louis County, Missouri.”

Appellant (plaintiff) filed his motion for new trial and to set aside the order of April 17, 1964. On May 1, 1964, the court overruled plaintiff’s motion for new trial, and on May 6, 1964, appellant (plaintiff) filed his notice of appeal.

The sole ground mentioned by the Court, in its memorandum setting aside the judgment, was the fact that an irregularity appeared on the face of the record, to-wit, violation of Rule 26-E, St. Louis County Circuit Court Rules.

Appellant contends that the Circuit Court had no authority to adopt and enforce Rule 26-E for the reason that it is in direct violation of the Rules of the Supreme Court and the law applicable to service of notice on defaulting litigants, and that “ * * * if the Circuit Court had no authority to adopt the Rule then it follows that there could not be any ‘irregularity’ on the Record. * * * ”

The rule making power of the Circuit Court of St. Louis County is governed by § 478.450 V.A.M.S. and Supreme Court Rule No. 50.01. The Supreme Court Rule provides: “ * * * trial courts may make rules governing the administration of judicial business if the rules are not contrary to the rules of the Supreme Court, to the Constitution or to statutory law in force.” The statute (Section 478.450) provides, among other things, that “Such judges, * * * may in like manner from time to time make such other rules for said court as may be agreeable to the usage and principles of law.”

This Rule 26-E requiring a notice to be sent to a defaulting litigant advising him in sufficient time of the trial setting of a case in all default or non-contested domestic relations matters is contrary to Rule 43.01(a) of the Supreme Court and Section 506.100 V.A.M.S., from which Rule 43.01 was promulgated. Rule 43.01(a) provides that “Service of Pleadings and Other Papers — Filing * * * (a) Service — When Required. Every pleading subsequent to the original petition, * * . * and every written notice, * * * shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear * * (Emphasis Ours.)

Rule 43.01(a) is plain and unequivocal and cannot be construed to mean anything other than that a defendant in default is not entitled to any notice other than the notice given in the original summons, which says: “You are hereby summoned to appear before the above named court and to file your pleading * * * all within 30 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.” (Emphasis Ours.)

The trial court, in effect, has held that the plaintiff may not have his case heard in the absence of the service of notice of the setting of the case upon the defendant, who has already defaulted. In other words, the court has adopted a rule of practice which deprives the plaintiff of a right given him by law, or which grants that right upon terms more onerous than those fixed by law. In the case of State ex rel. Paramount Progressive Order of Moose v. Miller, 216 Mo.App. 692, 273 S.W. 122, 124, this Court said: “ * * * A rule which would go beyond the statute, and narrow the rights of litigants as therein provided, would, we think, be invalid. A court cannot make and enforce a rule that would deprive a party of the right given him by law, or granting that right upon terms more onerous than those fixed by law. State ex rel. [Plummer] v. Gideon, 119 Mo. 94, 24 S.W. 748 * * *; State ex rel. [Hoffman] v. Withrow, 135 Mo. 376, 36 S.W. 896, 1038. * * *” The more recent case of Puckett v. Swift & Co., Mo.App., 229 S.W.2d 713, 717, is to the same effect.

The law has fixed the rights and duties of the parties with reference to the right to have a case heard, and the duties with reference to the obligation to plead within a certain time. Rule 26-E deprives the plaintiff of that right until and unless he complies with the service of notice, which the law specifically says is not necessary.

The case of Douglas v. Thompson, Mo., 286 S.W.2d 833, cited by respondent is distinguishable from the instant case. The rule involved in that case was held not to be in conflict with the Code.

The order of the trial court setting aside the decree of divorce should be reversed and the cause remanded with directions to reinstate the judgment of July 30, 1963. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the Order setting aside the decree of divorce is reversed and the cause remanded with directions to reinstate the judgment of July 30, 1963.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Walter Bradford YAGER and Hettie B. Yager, His Wife, Respondents.
    No. 32029.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      Robert L. Hyder, Esq., Chief Counsel, Joe Bill Carter and Wilkie Cunnyngham, Asst. Counsel, Jefferson City, for appellant.
    Rendlen & Rendlen, Branham Rendlen, Hannibal, for respondents.
   JAMES W. BROADDUS, Special Commissioner.

This is a proceeding by the State of Missouri at the relation of the State Highway Commission to condemn a right-of-way and certain easements across the lands of respondents. By the proceeding, appellant appropriated 5.48 acres of respondents’ land. The Commission awarded no damages for the land and easements taken. Respondents filed exceptions to the Commissioners’ award. The matter was tried to a jury resulting in a verdict in favor of respondents in the sum of $4500. The Highway Commission filed its motion, for new trial, which was overruled, and this appeal followed.

The evidence disclosed that respondents owned a farm of some 392 acres in Ralls County, the east side of which abutted upon existing Route H, a black-topped highway. The respondents’ improvements were located about 1/3 mile west of Route H. The right-of-way acquired by appellant divided respondents’ farm into two parts, the northern part being some 305 acres in area; the southern part being some 80 acres in area. The right-of-way is essentially all curve and if it is to be used for the pasture of livestock will have to be fenced.

Respondent W. B. Yager inherited 312 acres and respondents purchased 80 acres in 1956. The respondents stated the entire farm was worth $60,000 before the taking and $50,000 after the taking, a damage of $10,000.

Respondents’ domestic water supply was a spring which had been improved and the water piped to the house and feed lot. This spring always provided water and has never gone dry. After the road was built the water supply had diminished. Clear water, not surface water, now runs in the ditch on the side of the highway above the spring.

Respondent W. B. Yager testified that the materials to fence the road cost $2,-137.38 ; that this does not include the labor cost of building the fence; that the labor cost would approximately equal the material cost, or a total cost of fencing of some $4,000; that the fence is difficult to build, requiring blasting for some post holes and being all on a curve, thus is more expensive than a normal farm fence.

Respondents introduced testimony showing that there had been eight sales of farms in the neighborhood of respondents’ farm during the period from 1953 to 1964. Generally, the witnesses expressed the view that these farms were not as productive as respondents’. This by reason of the fact that the major portion of respondents’ farm was bottom land.

Respondents called as witnesses Raymond W. Asbury and Dudley Lane. Mr. Asbury was a licensed real estate broker and had been since 1941. He made appraisals of city and farm property. He was a fee appraiser for F.H.A. and the Veterans Administration. He was acquainted with the values of farm real estate in Ralls County, Missouri. He was acquainted with the W. B. Yager (respondents) farm, having been over it on the morning of the day of his testimony. He was acquainted with land values in the neighborhood of respondents’ farm in Ralls County, Missouri, prior and subsequent to December 16, 1957. He was not familiar with respondents’ farm prior to December 1957, but had been on Highway H (the highway by respondents’ farm). Objection to the witness testifying about the value of the farm prior to the taking, and a proferí in connection therewith was sustained. The witness testified that he had an opinion of the (then) present value of the farm; that the farm was (then) presently worth $55,000, but if the road was not there the farm would be worth $60,000; that this did not include any cost of fencing or of any interference with the domestic water supply.

Mr. Lane, now retired, worked for the Farmers Home Administration of the U.S. Government, Department of Agriculture for some 26 years. During this time he made estimates of values and was consulted on prices for land which was being financed by the government agency. He estimated values for over 100 farms in Marion and Ralls Counties. He had known the farm and respondent Yager before 1957 and had been to respondents’ home several years before the taking.

The witness described respondents’ farm and his computations concerning damages. He testified the road decreased the value of the farm; 30 acres reduced from $125 to $62.50 per acre; 50 acres reduced from $30 to $15 per acre; $165 for the 5)4 acres taken; new fence $1900; or a total reduction in value of $4690. This did not include any amount for the reduction in value of the farm for stock purposes, nor the division of the farm into two tracts, nor the interference, if any, with the domestic water supply; that respondents’ farm was definitely of less value after the road had been constructed.

Appellant called the three Commissioners as witnesses and they testified that in their opinion the benefits conferred by the building of the road were greater than the damages inflicted.

Appellant’s first contention is that, “The Court erred in allowing witnesses on behalf of the respondents to testify to the sales prices of properties in Ralls County, since there was no evidence that the properties in question were similar to the subject tract in size, type, usage or date of valuation * *

The respondents’ witnesses testified as to the eight farms in the neighborhood of the respondents’ farm which had been sold. The testimony disclosed the price paid in six of those sales.

As said by our Supreme Court in the case of In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 473:

“ * * * The importance of evidence of the sale price of other land depends upon the degree of nearness of the sale in point of time and the proximity of the property, of the similarity in location, and in the use to which the property may be adaptable. In determining the admissibility of evidence of this nature there necessarily must be considerable discretion on the part of the trial judge. * * * ” (Emphasis ours.)

Ralph Summers had lived in the neighborhood many years, and owned a farm which adjoined respondents’ land. He testified that of the farms where the sale price was shown four were “very comparable” to respondents’ tract. It is true that the farms which had been sold were, generally, not bottom land and the respondents’ farm was better land. Nevertheless, the fact remains that they were farms and were in the immediate neighborhood. We are unwilling to hold that the trial court abused its discretion in admitting the testimony.

Appellant’s remaining contention is that the court erred “in allowing the testimony of witnesses, Raymond W. Asbury and Dudley Lane, as to the trial date value and damage of the property, for the reason that such testimony did not tend to prove the value of the property in question as of December 16, 1957, the date of taking, and the introduction of such evidence was prejuducial to the appellant.”

Mr. Lane was certainly qualified to testify as to values. He had been engaged in making appraisals in Ralls County for 26 years. He knew the W. B. Yager farm and had had occasion to value other farms in the vicinity. As we read Mr. Lane’s testimony it took into account the farm’s value at the time of taking. The contention lacks merit.

Mr. Asbury was asked to give his opinion as to the value of the Yager farm prior to the taking. It developed that he had not been on the farm before December 16, 1957. Upon appellant’s objection the Court stated: “ * * * This witness can’t testify as to the value in 1957 of property that he didn’t even then know. * * *” Later on Mr. Asbury was requested to give his opinion as to the present value of the farm. This he fixed at $55,000, and, if the road was not there, the farm would be worth $60,000. He was then asked: “What are the factors that go to make up the difference between what the land is worth as it now stands and as it would be were the road not present ?” Upon appellant’s objection the Court stated:

“Well, the Court is ruling that this witness cannot testify as to values in 1957 when he didn’t even know the tract, but I don’t understand the evidence having the same result as you claim.
“MR. CARTER: All right, if the witness is testifying simply to the conditions today, I will object to the introduction of such evidence on the basis that it is the improper standard for arriving at damages, if there are any.
“THE COURT: There is no question about that. This witness is not in a position to testify to before and after, but this particular testimony now doesn’t call for that. The objection will be overruled.”

It is true, as appellant contends, that the witness’s testimony “did not tend to prove the value of the property in question as of December 16, 1957.” However, under all of the circumstances, we are not inclined to hold that appellant was prejudiced. The instructions correctly told the jury that in assessing the damages to which respondents were entitled, the jury was to determine the fair market value of respondents’ farm immediately before the taking and immediately after the taking. This court must presume that the jury followed the trial court’s instructions. And, no complaint is made that the verdict is excessive.

The judgment should he affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court.

Accordingly, judgment is affirmed.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.


author: BROADDUS, Special Commissioner.

text:
    STATE of Missouri ex rel. ALGONQUIN GOLF CLUB, a Corporation, Relator, v. James A. LEWIS, Charles M. Harrold, Jr., J. Buchner Morse, Arthur W. Green, Jr., and Robert D. Evans, the Members of the Board of Adjustment of the City of Webster Groves, Missouri, Respondents, and L. Joseph Mulligan, Jr., et al., Proposed Intervenors, Respondents-Appellants.
    No. 31992.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.
    Jackson F. Adams, Clayton, Charles E. Gray, J. Terrell Vaughan, St. Louis, for relator.
    H. Jackson Daniel, St. Louis, for respondents.
    Susman, Wilier, Rimmel & Elbert, Harold I. Elbert, St. Louis, for proposed inter-venors-respondents-appellants.
   BROADDUS, Special Commissioner.

This appeal is from a judgment denying appellants the right to intervene as parties respondent in a certiorari proceeding brought by relator to have a decision of the Board of Adjustment of the City of Webster Groves, denying it a permit to erect a parking lot, set aside.

Relator, Algonquin Golf Club, is located at 340 North Berry Road, Glendale, Missouri. Of its 85 to 90 acres of land, approximately 50 acres are within the corporate limits of Webster Groves and 40 acres are in the City of Glendale. On December 10, 1962, the Club applied to the Board of Adjustment of the City of Webster Groves to construct a parking facility on property known as 30 Algonquin Lane, in the City of Webster Groves. The Building Commissioner of Webster Groves denied the application for a permit and Algonquin Golf Club appealed to the Board of Adjustment of that city.

A hearing was held before the Board on January 28, 1963. At that hearing Mr. Carroll J. Donohue, an attorney, appeared on behalf of the residents opposed to the construction of the parking facility. And Mr. Thomas J. Diviney, one of the appellants, testified that “his premises are directly opposite the property under consideration.” On the same date the application for construction of a parking lot was denied.

Thereafter, on February 23, 1963, this proceeding was filed. In its petition Relator asserts that the right to construct a parking facility on the property in question is an accessory use within the meaning of the Webster Groves Zoning Ordinance. The minutes of the hearing before the Board of Adjustment show that this dispute involves the interpretation of the zoning ordinance in that Relator claims that the parking facility to be located at 30 Algonquin Lane is part of the same premises as the Golf Club, and that the residents of the area claimed and the Board held that it was not a part of the same premises because it was separated from the Golf Club by Algonquin Lane, a private street.

In their Motion to Intervene filed on March 7, 1963, appellants alleged that:

“2. Applicants state that they have a substantial interest in the pending action in that they are the owners and occupants of property in the immediate neighborhood of the tract for which the said permit was sought; that the real properties of Inter-venors Mulligan and Noble are adjaeent and abut upon the real property of relator; the real property of Intervenor Diviney is situated immediately across Berry Road from the real property of relator and the real property of the remaining Intervenors is in the immediate neighborhood of the property of relator; that the issuance of a permit as requested by relator herein would adversely affect the property values of applicants and the general welfare of the applicants, and that thereby said applicants have a very substantial interest in the subject matter of this cause.
“3. Applicants state that the representation of their interest by the named respondents, the members of the Board of Adjustment of the City of Webster Groves, may be inadequate and applicants will be, or may be, bound by a judgment in this action.”

The Circuit Court denied the Motion and this appeal followed.

Civil Rule 52.11(a), V.A.M.R. gives an applicant an absolute right to intervene “when the representation” of his “interest by existing parties is or may be inadequate” and he “is or may be bound by a judgment in the action.” State ex rel. Aubuchon v. Jones, an opinion by this court, Mo.App., 389 S.W.2d 854.

Civil Rule 52.11 is substantially the same as F.R.Civ.P. 24. The Federal Courts in construing Rule 24 hold that the allegations of the motion to intervene are taken as true in the absence of sham, frivolity and other similar objections. Clark v. Sandusky, 7 Cir., 205 F.2d 915; Otis Elevator Co. v. Standard Construction Co., D.C., 10 F.R.D. 404.

In this instance, appellants will be bound by the decision of the court. If Relator obtains a permit to construct a parking facility, appellants will have no further recourse to the courts. They will have had no opportunity to participate in the determination of the circuit court. Two of the appellants will live next door to a parking lot and one will live across the street from it. They certainly have a direct interest in the decision of the court and they may he aggrieved by it.

Both the statute (Sec. 89.110 V.A.M.S.) and the ordinance of the City of Webster Groves authorize any person or persons “aggrieved” by any decision of the Board of Adjustment to file a verified petition for writ of certiorari to the circuit court. By reason of the trial court’s refusal to allow their motion appellants now find themselves in the peculiar position of being deprived of the right to intervene in an effort to uphold the decision of the Board of Adjustment, when if the Board had decided against them, they would have had an absolute right to sue out a writ of certio-rari to challenge the Board’s decision.

In several cases adjoining property owners and property owners in the area have been held to be “aggrieved” parties. The theory of the cases holding that adjoining property owners are aggrieved persons within the meaning of the zoning statutes and ordinances is that such persons have an interest in the matter and that they are bound by the decision of the Board of Adjustment or the Courts. State ex rel. Housing Authority of St. Louis County v. Wind, Mo.App., 337 S.W.2d 554; Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054; Berard v. Board of Adjustment of City of St. Louis, Mo.App., 138 S.W.2d 731.

In State ex rel. Housing Authority of St. Louis County v. Wind, supra, permits to erect certain buildings were granted by the Director of Public Works of St. Louis County. Tomich and Nothum, two property owners in the area, appealed to the Board of Adjustment which revoked the permits. Thereafter, the applicants for the permits applied to the Circuit Court of St. Louis County for a writ of certiorari directed to the Board of Adjustment of St. Louis County. Nothum and Tomich were permitted to intervene in the Circuit Court, which reversed the decision of the Board of Adjustment. Thereafter, Tomich and Nothum appealed to the Court of Appeals. On appeal respondents claimed that Nothum and Tomich were not aggrieved parties within the meaning of that part of the zoning ordinance relating to the Board of Adjustment. This Court rejected that contention in the following language (337 S.W.2d 554, l. c. 558):

“ * * * Here there was evidence that the property belonging to appellant Nothum was directly across the street, and less than 100 feet, from the tract belonging to the Housing Authority. The proximity of his property to that where the alleged violation was to occur was sufficient to constitute him an aggrieved party. Kellog v. Joint Council of Women’s Auxiliaries Welfare Ass’n. [Mo., 265 S.W.2d 374], supra; Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054. Furthermore, this is not a suit to enjoin a violation of a zoning ordinance, but a proceeding under the zoning ordinances to protest the issuance of a building permit allegedly in violation thereof. * * * ” (Emphasis added.)

The case of Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144 F.2d 505 (1944) is directly in point. In that case an action was brought against a Zoning Commission to declare a zoning ordinance relating to a certain tract of land invalid. The trial court declared that the ordinance was invalid and the Zoning Commission voted not to appeal. Thereafter, the proposed in-tervenors sought to intervene under Rule 24 (a) of the Federal Rules of Civil Procedure which is identical with Civil Rule 52.11(a). The Court held that intervention should have been granted even though the case had been tried. This because the property owners who sought to intervene had an interest in upholding the zoning ordinance and because the action of the Zoning Commission in voting not to appeal made the representation of the property owners inadequate. The Court said (144 F.2d 505, l. c. 508):

“ * * * Here at least one of the rights which cannot be protected without intervention is the right of appeal. The court was, therefore, in error in denying appellants leave to intervene as a matter of right. * * * Adjoining property owners in a suit to vacate a zoning order have such a vital interest in the result of that suit that they should be granted permission to intervene as a matter of course unless compelling reasons against such intervention are shown.” (Emphasis added.)

The judgment should be reversed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is reversed.

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


author: BRADY, Commissioner.

text:
    STATE of Missouri at the relation of MAY DEPARTMENT STORES COMPANY, a Corporation, Relators, v. Hon. Noah WEINSTEIN, Successor to Hon. Drew W. Luten, Jr., Judge of the Circuit Court of the County of St. Louis, Missouri, etc., Respondents.
    No. 32020.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      Hocker, Goodwin & MacGreevy, Melvin L. Hertzman, Maurice Frank, St. Louis, for relators.
    Joseph A. Fenlon, Clayton, for respondents.
   BRADY, Commissioner.

This is an original proceeding in prohibition whereby the relator, hereinafter referred to as the plaintiff, seeks to make absolute our preliminary rule prohibiting the judges of the circuit court of St. Louis County from proceeding to assign a certain case for trial in that court.

When a petition for a writ of prohibition is filed, the opposing party may direct a motion to that petition or may make a return to the preliminary order. If a return is made, the plaintiff may reply thereto. Sec. 530.050, RSMo 1959, V.A. M.S. In the instant case the pleadings are made up of the petition for the writ, the return, and plaintiff’s reply. Since the reply filed did not deny the material allegations of new matter contained in the return, they are to be taken as true for the purposes of this proceeding. State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453.

The pleadings show that the plaintiff brought an action in the magistrate court of St. Louis County against Robert M. Hoff-meier and his wife seeking recovery of an account allegedly due in the amount of $179.15. Within twenty days of the return date of the summons the defendants filed an answer and counterclaim. In the latter they prayed for actual damages in the amount of $10,000 and for punitive damages in the amount of $500,000. There was no written verification or affidavit attached to the answer or counterclaim. However, the defendants’ attorney appeared before the magistrate and made oral oath that the matters contained in the counterclaim were true to the best of his knowledge, information and belief. It is conceded that the magistrate court had jurisdiction of the original action and that the amount of the counterclaim exceeds that court’s jurisdiction. The magistrate certified the cause to the circuit court. Later the circuit court entered a default and inquiry against plaintiff on the defendants’ counterclaim. The plaintiff entered its appearance in the circuit court proceeding for the purpose of setting aside the default and being successful, was granted ten days in which to file responsive pleading. Within that time it filed its motion to remand this cause to the magistrate court. The Hon. Drew Luten, circuit judge then presiding in the assignment division of the circuit court of St. Louis County, entered an order overruling the motion to remand and the May Company then petitioned for our writ seeking to prhoibit Judge Lu-ten’s successor or successors in the assignment division of that court from proceeding to assign this case for trial.

The function of the prerogative writ of prohibition is to restrict the person or body to which it is directed from acting or proceeding in some matter in which he or it has no jurisdiction. State ex rel. Miller v. Jones, Mo.App., 349 S.W.2d 534. Art. 5, § 14, Constitution of Missouri, V.A.M.S., provides for appellate jurisdiction in the circuit eourt “as provided by law.” Sec. 478.070, RSMo 1959, V.A.M.S., expressly provides for the circuit court to have “Appellate jurisdiction from the judgment and orders of * * * magistrates * * Accordingly, the jurisdiction of the circuit court in this matter is derivative. Smith v. Cowen, Mo.App., 350 S.W.2d 96, l. c. 98. The ultimate issue is whether this cause was properly certified to the circuit court.

Regardless of the situation prior to 1955 (see State ex rel. St. Louis Boiler & Equipment Co. v. Gabbert, Mo.App., 241 S.W.2d 79), § 517.240, subd. 2, RSMo 1959, V.A. M.S., now provides that “If, not later than twenty days after the return date of the summons, any defendant pleads any counterclaim or setoff which exceeds the jurisdiction * * * of the magistrate court wherein the case is pending, and if the defendant, or some credible person in his behalf, by his oath verifies the truth of the allegations of the counterclaim * * * then the magistrate shall make an entry of such facts in his record of the case, and forthwith certify the cause and transmit all papers and process therein to the clerk of the circuit court of the county wherein the magistrate court is located. * * * ” (Emphasis supplied.) Simply put, the plaintiff contends that the oral oath taken by the defendants’ counsel does not constitute compliance with the above emphasized portion of § 517.240, subd. 2, supra. We cannot agree.

The rules of statutory construction lead to the opposite result. In construing statutes we are to seek the intention of the legislators and are to ascertain that intention from the very words used in the statute if that is possible. In so doing we are to give the words used their plain and rational meaning. We are not to supply, insert, or read words into a statute unless there is an omission plainly indicated and unless the statute as written is incongruous, unintelligible, or leads to absurd results. Bussmann Mfg. Co. v. Industrial Commission, Division of Employment Sec., Mo.App., 335 S.W.2d 456; Bussmann Mfg. Co. v. Industrial Commission of Mo., Mo.App., 327 S.W.2d 487.

Webster’s Third New International Dictionary gives the definition of “verify” as “to confirm or substantiate in law by oath or proof.” Black’s Law Dictionary, Fourth Edition, defines the word as “To confirm or substantiate by oath * * * ” and cites cases from jurisdictions other than our own in support of that definition. In 92 C.J.S. at page 996 a distinction between “verification” and “verify” appears. The former is stated to include “ * * * both the actual swearing to the truth of the statements by the subscriber, and also the certification thereto by the notary or other officer authorized by law to administer oaths. * * * ” On that same page the word “verify” is given definitions which substantially conform to those stated above from Black and Webster, but the twofold meaning given to “verification” and implying a writing is not included in the definitions of “verify.”

Moreover, we note that the phrase “by his oath” immediately precedes the word “verifies” in § 517.240, subd. 2, supra. These words must be given some significance as we are not entitled to presume that the legislature inserts meaningless words into a statute. Bussmann Mfg. Co. v. Industrial Commission, Division of Employment Sec., supra. In this connection it should be noted that the very construction of the sentence in which this phrase appears would have allowed the legislature to have easily substituted the words “by affidavit” or “in writing” in lieu of the phrase “by his oath.” The only reasonable conclusion to be drawn from the failure of the legislature to use different language is that they intended the phrase “by his oath” to refer to the word “verifies” and were stating how they intended the defendant or the person acting in the defendant’s behalf to verify the truth of the allegations of the counterclaim; i. e., by an oath. The legislature intended the oath to be sufficient and did not intend to require a writing of any kind. It follows that the intention of the legislature in enacting § 517.240, subd. 2, supra, appears plainly and unequivocally from the very language used in the statute. The very construction of the statute refutes the contention that the words “by affidavit” or “in writing” or some similar phrase was omitted. As written the statute is neither incongruous nor unintelligible.

The plaintiff then contends that unless we construe this section of the statute to require the defendant or the person acting for him to verify the counterclaim in writing there will be endless litigation and disputes over whether the oath was in fact made. There is no such dispute in the instant case. It was so alleged in the defendants’ return and the plaintiff has in no way controverted that allegation. It is therefore to be taken as true for the purposes of this appeal. State ex rel. McCubbin v. McMillian, supra. To allow an oral oath to suffice under the provisions of § 517.240, subd. 2, supra, does not open the door to the chamber of horrors which the plaintiff envisions. In the event that a dispute does arise as to whether or not the oath was actually taken, it would seem that matter could easily be settled by reference to the minutes-of the proceedings in the magistrate court which the careful practitioner will be sure to see contains an entry regarding his oath. If for some reason those minutes are unavailable, proof could be offered by affidavit and if counteraffidavits are filed, the issue could be determined by testimony or whatever other proof might exist. In any event, § 517.240, subd. 2, supra, does not lead to such absurd results that this court should attempt, by construction, to contravene its plain wording.

The provisionsal rule should be quashed and the writ denied. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C, is adopted as the opinion of this court. The preliminary writ is therefore ordered quashed and the petition for a writ of prohibition denied.

WOLFE, P. J., RUDDY, J., and J. MORGAN DONELSON, Special Judge, concur.

ANDERSON, J., not participating.


text:
    COMBUSTION ENGINEERING, INC., Plaintiff-Appellant, v. G. P. O’CONNOR, George W. Wise, et al., Defendants-Respondents.
    No. 32169.
    St. Louis Court of Appeals. Missouri.
    Oct. 19, 1965.

      Moller, Talent & Kuelthau, St. Louis, for plaintiff-appellant.
    Lloyd G. Poole, Jefferson City, for defendant-respondent Industrial Commission.
    Gordon P. Weir, Jefferson City, for defendant-respondent Division of Employment Security.
    Wiley, Craig, Armbruster & Wilburn, St. Louis, for defendants Paul Day and others.
   BRADY, Commissioner.

This is an action for judicial review of five orders of the Industrial Commission of Missouri which, in effect, affirmed the decisions of the Appeals Tribunal of the Division of Employment Security by denying the request for a review of those decisions. Through consolidation of claims these appeals involve forty individuals. The circuit court affirmed the orders of the Commission and this appeal followed. The term “claimants” as used in this opinion will refer to all the respondents; “Commission” will refer to the Industrial Commission of Missouri; “Division” will refer to the Division of Employment Security; and “the Company” will refer to the appellant corporation. The issue is whether the claimants are eligible for benefits under the Missouri Employment Security Law for the weeks ending July 13 and July 20, 1963.

The limitations of our review in cases such as this are too well known to require citations. The decisions of the Commission on questions of law do not bind this court but on questions of fact our review is limited to ascertaining if, upon the whole record, the Commission could have reasonably made its findings and reached its result considering the evidence in the light most favorable to the findings. We may not substitute our own judgment as to the facts for that of the Commission but are to ascertain if the findings are supported by substantial evidence. See Workmen’s Compensation, Mo.Digest, Vol. 29A,

The findings of fact made by the Commission common to all five of the orders to be reviewed are that the claimants were members of a union which had a contract with the Company; that Article 9, Sec. 13, of the contract provided: “The time for taking vacations will be fixed as nearly as possible to suit the desire of the employees but at the discretion and necessity of the Company. Paid vacations will not be granted when an employee is on strike. The splitting up of vacation time will be left to agreement by the employee and his foreman” ; that during the course of negotiations which resulted in this contract, the Company had prepared and furnished to the representatives negotiating for the union an interpretation of Article 9, Sec. 13, which in those parts pertinent to this inquiry provides : “ * * * The balance of Vacation Article is to remain the same as our present agreement, including Section 13. It is understood that the interpretation of the wording of this Section allows the Company to shut down the plant for vacation purposes, but it is further understood that, during the term of this Contract, if this should occur the Company shall notify the employees prior to February 1, and an employee who so desires may elect to take the plant shut-down period as time off without pay and schedule his vacation in accordance with present practice”; that this interpretation was not signed by the parties to the contract and was not included in the contract; that on December 27, 1962, the Company posted a notice to the effect that its plant would shut down for annual vacations the weeks ending July 13 and July 20 of 1963; that after this notice was posted, the president of the union protested the plant shutdown in a meeting between the Company and the union representatives but no grievance was filed; and that the Company’s plant was shut down for the weeks ending July 13 and July 20, 1963 except for maintenance and inventory operations. While it does not plainly appear, we must take the case as if there had been an earlier layoff for there is no contention here raised that the week ending July 13 constituted the “waiting week.” These findings are binding upon us for the Company makes no attack upon them but confines itself to allegations of prejudicial error which raise questions of law alone.

The Company’s industrial relations manager was asked, “* * * what sort of factors go into the arriving at the conclusion of what dates to pick out” for the shutdown. His answer was, “The most important one is the synchronization of the time as far as our other plants is concerned. We interchange work and products between our manufacturing divisions. The primary interest was to select a date that would interfere least with the movement of materials between the plants.”

The Commission found that none of the claimants chose individually or through their union to take a vacation in either of the weeks ending July 13 or July 20; that each of the claimants was able and willing to work and sought work during those periods; and that each of them was therefore eligible for benefits for those weeks. The Commission further found that none of the claimants asked for a vacation during these weeks and none of them received vacation pay for either of these weeks; that the claimants performed no work and earned no wages during those weeks.

The Company first contends that the claimants are not “* * * unemployed through no fault of their own” as that phrase is used in § 288.020, RSMo 1959, V.A.M.S., and accordingly, are not within the class of employees the legislature intended should receive unemployment benefits. The second contention is that these claimants were not “totally unemployed” as that term is used in § 288.030, subd. 22(1), RSMo 1959, V.A.M.S.

Barring some case as yet unreported, this is a case of first impression in this state. However, the question has arisen elsewhere. Annotations dealing with this issue can be found in 8 A.L.R.2d at 433 and 30 A.L.R.2d at 366. It will serve no purpose to review all the cases for the reason that in many the wording of the applicable sections of that state’s unemployment compensation act is not the same as it is in Missouri and for the additional reason that in each of them there are factors bearing upon the decisions reached which are not present in the instant case. In many of the cases reviewed in the note, especially where there is no governing provision in the labor contract, the courts involved have determined the issue by inquiring into why or for whose benefit the shutdown occurred. As stated in Texas Employment Commission v. Huey, 161 Tex. 500, 342 S.W.2d 544 at 547: “* * * if the plant is shut down for the benefit or convenience of the employer, or in accordance with company policy, or because the employer wants the plant shut down for a period for any reason (as for inventory, retooling, weather conditions, lack of orders, etc.), those employees laid off without pay and who have registered with the Employment Commission as being ready, able, willing and desirous of obtaining work but for whom no work is available at the plant or elsewhere are eligible for, and not disqualified from receiving, unemployment benefits. * * *” This distinction is graphically illustrated by the situation as it was in Pennsylvania prior to a recent change in that state’s unemployment compensation act. In Mattey v. Unemployment Compensation Board of Review, 1949, 164 Pa.Super. 36, 63 A.2d 429, unemployment compensation was denied where the shutdown was found to be for the benefit of the employees. On the other hand, that same court allowed recovery where the shutdown was shown to be for the benefit of the employer who wanted to take an inventory and this was true even though some of the employees were on paid vacation during that period. Golubski v. Unemployment Compensation Board of Review, 1952, 171 Pa.Super. 634, 91 A.2d 315, 30 A.L.R.2d 362, 57 Dickinson Law Review 248 (1953). In the instant case the fact that this shutdown was for the Company’s benefit is apparent from the testimony given by the Company’s industrial relations manager. He stated its purpose was to aid the Company in synchronizing the movement of materials between the plant involved and the other plants which it operated. There is no evidence as to any purpose benefiting the employees.

However, in the case at bar the labor contract did contain provisions controlling the question of vacations. In Thornbrough v. Schlenker (1958), 228 Ark. 1012, 311 S.W.2d 753, l. c. 755, it was held that: “ * * * if, by the contract between the Union (the agent of the workers) and the management of the plant, there was reserved by the management of the plant the right to fix, at its own option, a plant wide vacation period, then the employees had agreed to such vacation and had been ‘voluntarily unemployed’; and, therefore, not entitled to employment benefits. But if the contract had no provision whereby the management reserved the right to fix, at its own option, a plant wide vacation shutdown, then the employees had not agreed to such vacation period and were ‘involuntarily unemployed’ during such shutdown period; and, being involuntarily unemployed, they were entitled to unemployment compensation.” The rationale for such a rule proceeds first upon the basis that if an individual employee has asked for a vacation or for time off and been granted it, he is not involuntarily unemployed. His unemployment results from his own volition in making the request. As stated in Thorn-brough v. Schlenker, supra, the situation is the same where the labor contract contains a provision providing for a plant wide vacation during a specified period. The employees, members of the union, are held to have requested the vacation by the action of their bargaining agent, the union, and their approval of the contract. See Bedwell v. Review Board of Indiana Employment Security Division, 1949, 119 Ind.App. 607, 88 N.E.2d 916.

The Company cites and relies upon Grobe v. Board of Review, 1951, 409 Ill. 576, 101 N.E.2d 95. That case must be distinguished from that at bar on the grounds that in Grobe the court found the company to have reserved the right to have its employees take their vacation at a time when a department was closed down.

Article 9, Section 13, does not provide for a plantwide shutdown vacation period but clearly envisions the employees taking vacations at other times during the year. The Company’s unsuccessful effort to insert a new interpretation of this section into the labor contract and the evidence that some of these claimants had, prior to the weeks here involved, requested and been granted their vacations by the Company, clearly shows the Company recognized and treated this section of the contract as a denial of any right to require all its employees to take a vacation during the weeks the plant was to be shut down.

In Bussmann Mfg. Co. v. Industrial Commission, Division of Employment Sec., Mo.App., 335 S.W.2d 456, this court held the word “fault” as used in § 288.020, supra, meant “failure or volition.” The Company urges that since the claimants knew of the coming shutdown and therefore knew they could avoid unemployment for that period by taking their vacations at that time but did not choose to do so, their unemployment was the result of their own volition. That argument is unacceptable. The only action these claimants took of their own volition was that which they had a perfect right to take under the labor contract; i. e., not to take their vacation during the weeks ending July 13 and July 20. Their unemployment does not result from that act but from the action of the Company in closing down the plant for those two weeks for its own benefit. Even though the claimants made their choice, they would have been at work for these two weeks had it not been for the Company’s action. To adopt the Company’s argument would be, in effect, to require the claimants to take their vacation during the shutdown period fixed by the Company even though the labor contract does not so provide; that is, unless one is economically naive. Such a ruling would convert the terms of Article 9, Section 13, into something far different than that which the parties had bargained and agreed upon. The effect of our adoption of the Company’s argument would be to require the claimants to choose between compliance with the Company’s unilateral and ex contractu determination o-f when an employee should take his vacation or the loss of the right to compensation as granted by the law of this state. Of course, the employees could have bargained away this free choice of vacation time and thus said to have agreed to be bound by a decision between these two results, but they did not do so. The Company cannot now force such a choice upon the claimants.

The Company next contends that these claimants cannot be awarded compensation for the reason that they were not “totally unemployed” as that phrase is used in § 288.030, subd. 22(1), supra. That section states, “An individual shall be deemed ‘totally unemployed’ in any week during which he performs no services and with respect to which no wages are payable to him.” Sec. 288.036, RSMo. 1959, V.A.M.S., defines “wages” to mean “all remuneration payable or paid” and states that “Vacation pay * * * shall be considered as wages for the week with respect to which it is payable. * * * ” The Company’s argument is that “wages” (vacation pay) were payable to these claimants for these two weeks. In this connection the Company cites and relies upon American Central Mfg. Corp. v. Review Board of Indiana Employment Security Division, 1949, 119 Ind.App. 430, 88 N.E.2d 256. The Indiana Unemployment Compensation Act contains a provision defining “wages" as every form of remuneration and which is similar in effect to § 288.036, supra. That case is to be distinguished from the instant case. In the American Central case the court found that the union by its actions had agreed to the action of the employer closing the plant for vacations. That being so, the employees were bound by the agreement of their bargaining agent. Moreover, in the American Central case, each of the employees was given his vacation pay for the shutdown period. In the instant case none of the claimants were paid vacation pay for the shutdown period.

In ruling upon this contention it is necessary to separate the claimants into two groups. The first of these groups encompasses all the claimants who had taken their vacation prior to the weeks of July 13 and July 20. As to these claimants there was no vacation pay (wages) payable. Their vacation pay had already been received. There were no weeks with respect to which vacation pay was payable to them. Obviously these claimants were “totally unemployed” for the weeks ending July 13 and July 20 and were entitled to compensation.

The second group contains all the claimants who had not taken their vacations prior to the shutdown period. Was there any vacation pay (wages) payable to them with respect to the weeks ending July 13 and July 20? Again the answer must be that there was not. These claimants had a right to vacation pay but it was an inchoate right that could not become fully operative until they requested that it be allocated to some specific period. Until they made that request their vacation pay was as payable for any other two weeks in the year as it was for the two weeks here involved. Vacation pay does not become payable until the employee requests his vacation for a designated period. It follows that there was no vacation pay payable to the claimants in this group with respect to the shutdown period and they were “totally unemployed” for those two weeks.

The judgment of the circuit court affirming the decision of the Industrial Commission should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

ANDERSON, Acting P. J., RUDDY, J., and JAMES D. CLEMENS, Special Judge, concur.

WOLFE, P. J., not participating.


author: CULLEN, Commissioner.

text:
    CITY OF SHEPHERDSVILLE, Kentucky, Petitioner, v. Honorable William R. GENTRY, Judge, Bullitt Circuit Court, et al., Respondents.
    Court of Appeals of Kentucky.
    July 2, 1965.
    As Modified on Denial of Rehearing Nov. 5, 1965.
    Burlyn Pike, City Atty., Shepherdsville, for petitioner.
    M. Gene Snyder, Taylorsville, Davis Williams, Munfordville, for respondents.
   CULLEN, Commissioner.

Shepherdsville, a city of the fifth class, seeks an order prohibiting Circuit Judge William R. Gentry from taking any further proceedings in an annexation-remonstrance suit pending in the Bullitt Circuit Court, or, in the alternative, prohibiting him from entering a default judgment in that suit without permitting the city to file answer and without conducting a trial on the merits.

The city had moved that the suit be dismissed on the ground that it was filed after the 30-day period allowed by KRS 81.110 (which is made applicable to fifth-class cities by KRS 81.230). However, the city’s motion was not filed until after expiration of the 20-day period allowed by KRS 81.110 for filing answer. The circuit court made-a ruling that the motion was too late, and that in any event the suit had been filed' in time. Thereafter the city sought permission to file an answer, which the court denied as being too late. The judge indicated that he would grant a default judgment against the city.

In seeking prohibition, the city maintains that (1) the remonstrance suit was not filed in time and therefore the circuit court has no jurisdiction; (2) the original attorney for the remonstrants (who subsequently withdrew from the case) had requested the city to withhold the filing of its motion to dismiss, or an answer, while he attempted to work out a settlement of the case, and the delay in filing the motion and answer was pursuant to that request and an understanding that there would be no objection raised by counsel to late filing; and (3) a circuit court has no authority to enter a default judgment in an annexation-remonstrance suit.

It is provided in KRS 81.230 that there shall be no appeal from the judgment of the circuit court in a suit remonstrating against annexation by a fifth-class city. So the city does not have a remedy by appeal for the things complained of. However, that alone is not sufficient ground for a grant of prohibition.

It is shown in the record before us, and undisputed, that the questioned ordinance was passed by the council on January 13, 1965, but there was no newspaper publication of it until January 21, 1965. KRS 87.050 requires publication of a newly adopted city ordinance either by newspaper advertisement, or by public posting if no newspaper is published in the city. It has been held that an ordinance of a fifth-class city is not effective until such publication occurs. Bybee v. Smith, 61 S.W. 15, 22 Ky.Law Rep. 1684. Accordingly, the filing of the remonstrance suit on February 12, 1965, was timely within the purview of KRS 81.110(1). It follows, therefore, that the prayer for prohibition against the respondent judge’s further proceeding in the remonstrance suit is without merit.

However, we think it would not be consonant with justice for the court to proceed to enter judgment against the city by default, without permitting it to file answer and without conducting a trial on the merits, after the parties, in good faith and apparently acting under the assumption that the court would honor their agreement, had agreed that the city should postpone the filing of its motion and answer. Cf. Yount v. City of Frankfort, Ky., 255 S.W.2d 632.

In Schaetzley v. Wright, Ky., 271 S.W.2d 887, we spoke of the parties’ having received justice in the proper sense of having had due and fair consideration of their case. We think that justice in the instant case demands that the city be permitted to file an answer placing the allegations of the complaint in issue, and that the issues be tried on their merits.

Therefore, it is ordered that the respondent, Judge William R. Gentry, be and he is prohibited from entering judgment in Civil Action No. 1451 in the Bullitt Circuit Court, styled C. L. Troutwine, Sr., et al. v. City of Shepherdsville, Kentucky, except after permitting answer or other appropriate pleading to be filed and conducting a trial on the merits.


author: DAVIS, Commissioner.

text:
    Charles Virgil WHEELER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 17, 1964.
    Rehearing Denied Nov. 5, 1965.

      Core, Vimont & Combs, John Y. Brown, Brown, Sledd & McCann, Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Paul Mansfield, Commonwealth’s Atty., Lexington, for appellee.
   DAVIS, Commissioner.

Charles Virgil Wheeler seeks reversal of his conviction in the Fayette Circuit Court of the offense of aiding and abetting an unknown person commit the crime of armed assault with intent to rob. Appellant has been sentenced to imprisonment for twenty-one years upon the jury’s verdict of his guilt of the offense. KRS 433.150.

Appellant rests his appeal upon four claimed errors: (1) the indictment was defective for failure to name the principal or give a description of his acts or participation in the crime charged; (2) there was a fatal variance between the allegations of the indictment and the proof; (3) appellant was denied the constitutionally guaranteed speedy trial; and (4) the evidence does not support the verdict.

On September 8, 1961, T. E. King was on duty as night auditor and desk clerk at Springs Motel at Lexington. About 5:30 a. m., he responded to a knock at the door, and unlocked the door to admit a man who told him he wished to pay his bill and check out of the motel. King then locked the door, leaving the key in it, and started to go behind the desk to attend the matter of checking out the “guest” when the latter put a .45 automatic pistol in King’s hack. King then understandably responded to the commands of the intruder; King was required to lie face down upon the floor of the dining room. The intruder, whose identity has never come to light, placed napkins across King’s mouth, and tied King’s hands and feet. Just prior to tying King, the intruder kicked him in the face and directed him to lie in such manner as his face would be flat on the floor.

King testified that he heard noises from the motel lobby indicating the prizing open of the cash register and some cabinets in the office. After about five minutes a man came in and kneeled down behind King and asked him whether he was all right; upon King’s telling him that he was all right, this man reached into King’s pocket and removed his card case — there was no money in it. Then the man told King: “You lay there and nothing will happen to you.” King then heard “them” take a crowbar “or something” and prize open a cash register in the dining room, just behind where he lay; then the intruders left. King was easily able to free himself, and immediately telephoned the police. The officers reached the scene about five or ten minutes later.

Examination of the motel premises by the police revealed that checks and cash aggregating about $900 had been taken. King did not know, nor was he ever able to identify the first man who came in the motel office. However, he told the police that the man who had asked him whether he was all right was the appellant. King explained that he had known appellant as a frequent guest at another motel during times of King’s employment there. He asserted that he was quite familiar with the voice of appellant, and that he recognized appellant as the man who had spoken to him and removed the card case from his pocket. At the trial King said that appellant’s voice is distinctive and that he had no doubt of the accuracy of his identification. It developed that King had not talked with appellant for about one year before the robbery. On the next day after the robbery, King identified a photograph of appellant at the Lexington police station.

At 11:40 p. m. on September 8, 1961 (the day of the robbery), appellant was arrested at Ashland while aboard a train bound for Columbus, Ohio. Search of appellant was made incident to that arrest; in his billfold were found two checks, each of which was shown to have been among the articles taken from the Springs Motel in the robbery just described. The checks were in sums of $6.18 and $97.00, respectively. Appellant claims that he acquired the checks, with some others, at about 3:00 or 3:30 p. m. September 8, 1961, from a man he named as either James Lawson or James Lawrence —he was not sure which. Appellant said that he cashed checks in the total sum of about $186 for Lawson-Lawrence at a restaurant in Portsmouth, Ohio, on the occasion mentioned. He offered no plausible explanation as to the absence of an endorsement of Lawson-Lawrence on the checks. Appellant’s own evidence, supported by testimony from his wife, tended to establish an alibi. He insisted that he was in Huntington, W. Va., at the time of the robbery, and had not been in Lexington for four or five months before the robbery date.

The indictment was returned by the Fayette County grand jury October 11, 1962, and in pertinent part is as follows:

“The Grand Jury * * * accuses Charles Virgil Wheeler of the crime of unlawfully, maliciously and feloniously aiding and abetting a person unknown to this Grand Jury in an unlawful, malicious and felonious assault with an offensive weapon upon T. E. King with the felonious intent to rob the said T. E. King committed as follows, viz: That said person unknown to this Grand Jury * * * did with an offensive weapon, to-wit a pistol, unlawfully, maliciously and feloniously make an assault upon T. E. King, with the felonious intent then and there to rob him, the said T. E. King of money or property of value, and that the said Charles Virgil Wheeler was then and there present at the time of said assault and did unlawfully, wilfully and felo-niously aid, abet, advise, counsel and encourage the said person whose name is unknown to this Grand Jury in the commission of said crime * * * ”

Appellant asserts that failure to name the principal offender is a fatal deficiency in the indictment. In support of his contention he relies on Mulligan v. Com., 84 Ky. 229, 1 S.W. 417, and Christian v. Com., Ky., 255 S.W.2d 998. In Howard v. Com., 110 Ky. 356, 61 S.W. 756, it was noted that the principle enunciated in the Mulligan case was subject to the reasonable exception that is presented here. The Howard case specifically recognized the validity of an indictment naming an unknown principal. Smith v. Com., 262 Ky. 6, 89 S.W.2d 3, stands for the same proposition. We conclude there is no merit in this phase of appellant’s contentions.

The related attack on the indictment also fails. Appellant contends that the indictment does not sufficiently detail the activities of the unknown principal to satisfy the requirements of Sections 122(2) and 124(4) of the Criminal Code, in effect when the indictment was presented. As frequently pointed out, the object of the indictment under the former Criminal Code is to inform the defendant of the offense with which he stands charged; this may be done by a statement of the acts constituting the offense in such manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case. Smith v. Com., 262 Ky. 6, 89 S.W.2d 3. The quoted language of the indictment adequately recites the description of the acts of the unknown principal as well as the conduct of the accused appellant.

The position is taken that since the indictment charges that the crime was committed with the intent to rob T. E. King of money or property, there was a fatal variance when the evidence reflected that the items taken were assets of Springs Motel. In support of this argument, appellant cites Lissenbee v. Com., 198 Ky. 639, 249 S.W. 782; Williams v. Com., 314 Ky. 33, 234 S.W.2d 148; Sturgill v. Com., Ky., 293 S.W.2d 730, and cases from other jurisdictions.

In Lissenbee the indictment charged robbery from Felix Turner; the proof showed robbery from Felix Napier. This was held to be a material variance — not on the theory that the title to the taken property was the crux of the matter, but that the act of robbing Felix Napier is not the same act as robbing Felix Turner. Thus, the accused could not properly know what defense to prepare, nor would prosecution under the Lissenbee indictment afford a defensive bar to subsequent prosecution for robbing Felix Napier. In the case at bar it is charged and proven that the crime under investigation is the armed assault of T. E. King with intent to rob. This prosecution effectively bars further prosecution of this appellant for the same offense.

Williams v. Com., 314 Ky. 33, 234 S.W.2d 148, involved prosecution for grand larceny. The indictment charged that the items stolen were personal property of Inland Steel Company. On proof, it developed that an overcoat which had been taken from the 'store of Inland Steel was in fact the individual personal property of Sam Wallen — not Inland Steel. Since the accused’s connection with the offense was based on that overcoat, we held that there was fatal variance. Sturgill v. Com., Ky., 293 S.W.2d 730, follows Lissenbee and Williams; the fatal variance in that larceny prosecution lay in the fact that the indictment charged theft of property owned by George Evans, whereas the proof showed the property belonged to Glo Valley Coal Corporation.

The case at bar is not ruled by the cases just mentioned. Here the offense charged is armed assault with intent to rob. KRS 433.150. We have held that this offense is not the same offense as robbery, and that the gravamen of the crime denounced in KRS 433.150 is the assault. Adams v. Com., Ky., 264 S.W.2d 283; Lamb v. Com., 266 Ky. 561, 99 S.W.2d 441; Thomas v. Com., Ky., 291 S.W.2d 550; Riley v. Com., 278 Ky. 732, 129 S.W.2d 581. The offense may be consummated without any robbery — without the taking of any property — it is the assault with intent so to do that constitutes the crime, when that assault is otherwise within the purview of the statute. We conclude, therefore, that there is no merit in the appellant’s claim that there was a fatal variance.

Ky. Constitution, Section 11, guarantees an accused a speedy trial. Appellant complains that he was not accorded one. We disagree. As noted, the indictment was returned October 11, 1962. The jury trial was held February 5, 1963. The lapse of four months between time of indictment and trial does not reflect abnormal delay. Appellant cites nothing to support that view. However, he points out that the offense was committed on September 8, 1961, and in his brief states that an earlier indictment had been returned in September, 1961. But there is nothing in this record to present that matter to us for review; we may not consider the unsupported statements in briefs as a part of the record for review. 2A Ky. Digest, Appeal & Error, Review of the record that is before us discloses no .effort by appellant to bring the case on for trial at an earlier time, nor any order or motion for continuance in behalf of the Commonwealth. If it were arguable that appellant was denied speedy trial — and we believe that it is not arguable here — it is to be observed that he has taken no step to avail himself of the claimed error. See 14 Am. Jur., Criminal Law, Sec. 138, pages 863-864.

Finally, the appellant insists that the evidence does not support the verdict. The victim, T. E. King, positively identified appellant as present and participating in the offense; appellant was found in possession of two checks taken in the robbery; his explanation of his having them was tenuous at best, and the jury was not bound to believe him. It seems to us that the verdict is abundantly supported by the evidence. It complies with our rule that any evidence of substance which goes toward the establishment of guilt is sufficient to make a jury issue. Parsley v. Com., Ky., 273 S.W.2d 372 and 6 Ky.Dig. 1, Criminal Law,

Judgment is affirmed.


author: PALMORE, Judge.

text:
    Charles Virgil WHEELER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 30, 1965.
    Rehearing Denied Nov. 5, 1965.

      Julius Rather, Richard E. Vimont, Lexington, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant, Charles Virgil Wheeler, was found guilty of aiding and abetting in an armed assault with intent to rob and was sentenced to a term of 21 years in prison. KRS 433.150. His conviction was affirmed on appeal. Wheeler v. Commonwealth, Ky., 395 S.W.2d 565 (decided April 17, 1964). While the appeal was pending he moved for a new trial on the ground of newly discovered evidence. RCr 10.02, 10.06. This appeal is taken from an order of the trial court overruling the motion for new trial.

As the essential facts of the case are detailed in the opinion resolving the first appeal they need not be restated here.

The principal item of new evidence is the sworn statement, given in question and answer form during an interview with Wheeler’s counsel, of one Kenneth Simmons, an inmate of the reformatory at La-Grange, to the effect that Simmons and an accomplice named Junior Cochran (now deceased) committed the robbery in question and that Wheeler was not implicated in any way. Simmons was thereafter convicted of another offense and sentenced to 10 years in prison. He says that Cochran took the checks from the Springs Motel and later told him he had sold them and that the man to whom he had sold them had been arrested. This and other details of Simmons’s statement corroborate Wheeler’s story that he had bought the checks found in his possession from some man at the Shawnee Restaurant in Portsmouth, Ohio, during the afternoon of September 8, 1961, the robbery having been committed at Lexington, Kentucky, at about daybreak that morning.

In addition to the statement of Simmons, Wheeler presented affidavits of the sheriff and a deputy sheriff of Wayne County, West Virginia, that they had seen and talked to Wheeler at the Holiday Inn Restaurant in Huntington, West Virginia, at 6:30 or 7:00 A.M. on September 8, 1961; the affidavit of a hostess at the Shawnee Restaurant in Portsmouth, Ohio, to the effect she saw Wheeler buy or cash some checks for another man in the restaurant at about 3:00 P.M. on September 8, 1961; the affidavit of Wheeler’s niece to the effect that during the night of September 7-8, 1961, he had come to her family’s home in Ashland, said he had wrecked his car, and wanted someone to take him back to the motel where he was staying in Huntington, whereupon the affiant and her date did take him to the Holiday Inn at Huntington and last saw him there at approximately 1:00 A.M. on September 8, 1961; and the affidavit of Wheeler’s counsel asserting due diligence and giving the following reasons why this various information had not been presented at the trial:

1. The involvement of Simmons was not known or discoverable.

2. Counsel did not know the West Virginia sheriff had seen Wheeler on the morning of September 8, 1961, the information having been lately volunteered by the sheriff.

3. At' the time of the trial the hostess at the Shawnee Restaurant in Portsmouth had moved without leaving a forwarding address.

After the motion for new trial and supporting documents were filed the Commonwealth had T. E. King, the victim of the robbery, and a detective from the Lexington Police Department go to LaGrange and interview Simmons. At a subsequent hearing on the motion for new trial they testified that Simmons did not recognize King and was not familiar with the layout of the Springs Motel, where the holdup took place. At the same hearing King was shown a photograph of the lately deceased Junior Cochran, claimed by Simmons to have been his only accomplice, and King was positive that neither Simmons nor Cochran was the man he let into the motel office on the morning of September 8, 1961.

There was other evidence and counter-evidence of an impeaching nature, some in the form of testimony and some given by affidavit, but what has been thus far outlined is enough to orient a discussion of the arguments.

It will be noted that the motion for new trial is not supported by an affidavit of Wheeler himself. The oft-repeated rule is that a motion for new trial on the ground of newly discovered evidence will not be considered unless the defendant files his own affidavit showing diligence in attempting to discover the new evidence before the first trial. Bales v. Commonwealth, 313 Ky. 272, 231 S.W.2d 61 (1950). “Generally, it is essential that a motion for a new trial based on newly discovered evidence be supported by the affidavits of the accused, his counsel, and the new witnesses.” 24 C.J.S. Criminal Law § 1484 c, p. 286.

It is contended for Wheeler that there is no reasonable basis for a rule requiring the defendant himself to make an affidavit when it is done by his attorney. This overlooks the fact that the affidavit is in the nature of testimony. Counsel cannot speak for his client in the sense of giving the client’s testimony. On the question of newly discovered evidence it is necessary that the diligence of both be shown. In this particular instance the sheriff’s affidavit says that he and his deputy had coffee with Wheeler at the Holiday Inn at Huntington early in the morning of the day on which Wheeler was later arrested. If that is true Wheeler knew it, and we are left to wonder why such vital evidence was not developed at the trial. It is not enough for counsel to say he was not aware of it. What was Wheeler’s excuse? See Spears v. Commonwealth, 219 Ky. 101, 292 S.W. 753 (1927).

With regard to the sheriff, his deputy, and Wheeler’s niece, .there was not a sufficient showing of diligence to require consideration of their affidavits. As to the hostess at the Shawnee Restaurant in Portsmouth, Ohio, the record does not indicate any effort to obtain a continuance in order to discover her and solicit her presence or to introduce an affidavit under the conditions prescribed by RCr 9.04. And again, as in the instance of the others, counsel’s diligence in this respect is not necessarily tantamount to diligence on the part of Wheeler himself.

The record does not tell us how or when Simmons and his willingness to make a clean breast of it came to light. Perhaps, however, even in the absence of an affidavit by Wheeler, common sense and the law of probabilities warrant an assumption that this item of newly disclosed evidence was not known and could not have been timely discovered by the exercise of reasonable diligence. Nevertheless, in view of the counter-evidence produced by the Commonwealth we are unable to say that the trial court abused its discretion in denying a new trial.

“The rule is that in order for newly discovered evidence to support a motion for new trial in a criminal case it must be of such decisive value or force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.” Kinmon v. Commonwealth, Ky., 383 S.W.2d 338 (1964). Cf. 24 C.J.S. Criminal Law § 1484 a, pp. 281-284.

RCr 10.08 provides that on a motion for new trial supported by affidavits the Commonwealth has ten days to serve opposing affidavits, which time may be extended “for an additional period not exceeding twenty days.” Wheeler’s motion was made on May 22,1964, and supplemented on June 18, 1964. There was no order extending the Commonwealth’s time and no formal order setting a .hearing date, though it is apparent that the hearing'was prearranged for a time that was convenient to counsel and the court. Counsel for Wheeler contends that the counter-evidence produced by the Commonwealth at the hearing should not have been received. The trial court was at first disposed to agree, and admitted the evidence by way of avowal. But after hearing it he decided that the Commonwealth was entitled to present it.

RCr 10.08 is taken from CR 59.03. According to Clay’s Kentucky Practice, CR 59.03, Note 3, “it would áppear that the court may for good cause alter the time limits fixed by this Rule.” We think it is discretionary, and it does not seem to us that the trial court abused its discretion in admitting and considering the evidence. It is oúr opinion also that the reception of testimony in lieu of affidavits is discretionary. If a party is surprised by the substance of the testimony, the remedy lies in a motion for such further time as justice may require for preparing a rebuttal.

The judgment is affirmed.

      . There are, incidentally, some definite inconsistencies between the details recited in the affidavits of the sheriff and deputy sheriff and the testimony given by Wheeler at the trial.

      . Wheeler’s brief suggests that his counsel received a “tip” that Simmons wanted to see him.


text:
    MEADE COUNTY, Appellant, v. Roy NEAFUS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    J. R. Watts, County Atty., Brandenburg, Hatcher & Lewis, Elizabethtown, for appellant.
    Faurest & Collier, L. A. Faurest, Eliza-bethtown, for appellee.
   ROBERT M. COLEMAN, Special Commissioner.

The appellee, Roy Neafus, was both Clerk and Master Commissioner of the Meade Circuit Court in the years 1960,1961, 1962 and 1963. In 1960, his combined fees from the two offices exceeded the constitutional limit of $7200.00 by $719.12. In 1961, the excess was $166.64. After an audit, he paid these sums to the county. On March 14, 1963, he filed this suit in the Meade Circuit Court seeking, according to the prayer of the complaint, a declaration, “whether his total compensation as Circuit Clerk and as Master Commissioner of the Meade Circuit Court is limited to $7200.00, and as to whether the county should repay to him the said sums heretofore paid to the county, and as to whether his future compensation is limited to net receipts of $7200.00 from both offices.”

The trial court in construing Section 106 of the Constitution, which states, “The fees of county officers shall be regulated by law,” and KRS 64.620, which provided “for services rendered in one or more offices or positions of employment, shall not exceed the constitutional limit for officers, which is $7,200 per annum,” held that under this statute in force during 1960 and 1961, and the decision of this Court in Funk v. Milliken, Ky., 317 S.W.2d 499, the combined compensation of the two offices was limited to $7200.00. Thus far, we are of the opinion the trial court is correct.

In 1962, KRS 64.620 was repealed, leaving no statutory salary for the two offices.

The trial judge in construing paragraph (2) of the opinion of this Court in Matthews v. Allen, Ky., 360 S.W.2d 135, held that it applied to KRS 64.620. And, under the formula set out in the Allen case, on the value of the dollar, the appellee was entitled to recover from the county for the years 1960-1961 such sum as the value of 128.9 applied to his income might equal. In the years subsequent to 1961, the Consumers Price Index may be applied to the income of the appellee as compared to the purchasing power of the dollar in 1949 for the purpose of determining his limitation. This construction of the Allen case is in error.

The courts cannot fix or limit the salaries of officers. The power to fix compensation of officers is vested in the Legislature. Section 106, Kentucky Constitution. City of Fulton v. Shanklin, 275 Ky. 772, 122 S.W.2d 733; Norman, Auditor v. Cain, Clerk, 31 S.W. 860, 17 Ky.Law Rep. 492; McHenry v. Winston, 49 S.W. 4, 20 Ky. Law Rep. 1194.

In the case of Matthews v. Allen, Ky., 360 S.W.2d 135, this Court, in construing the constitutionality of the 1962 Act of the Legislature raising the salary of Circuit Judges beyond the constitutional limit of $8400.00 held that the Legislature in fixing salaries, and the Court in construing its acts, may take into consideration the purchasing power of the dollar. In that case we said:

“ * * * It seems to us that it is becoming increasingly necessary to construe Section 246 in a way which will enable the General Assembly to keep the salaries of Circuit Judges, and for that matter all constitutional officers, currently geared to the purchasing power of the dollar as compared to its purchasing power in 1949. * * *
“Let us see what the Legislature has done in the instant case * * *
“* * * In other words, the legislature has interpreted ‘adequate compensation’ * * *
“ * * * This is a clear instance of legislative care and responsibility.
“As the determiner of adequate compensation the Legislature has the power to balance the consistency of Section 133 with Section 246 * *

It will be noted above before writing paragraph (2) we had said Section 246 should be construed in a way to enable the General Assembly to keep the salaries * * * of all constitutional officers currently geared to the purchasing power of the dollar.

In the recent case of Commonwealth of Kentucky v. Hesch, Clerk Campbell Circuit Court, and its consolidated case of Floyd County v. Hale, Sheriff, Ky., 395 S.W.2d 362, decided June 28, 1965, we reaffirmed our decision in the Matthews v. Allen case. In these last cases, we upheld the constitutionality of the Act of the 1964 Legislature raising the compensation of this appellee and other county officers to $9600.00 which is in excess of the $7200 provided in Section 246 of the Constitution.

We did not say, nor intend to say, in the Matthews v. Allen case, as construed by the trial court, that the salaries of all officers were automatically geared to the price of living index or the value of the dollar. Or that any or all officers in the state could go into court and ask the court to adjust their compensation based on the price of living index or the value of the dollar in that particular community.

In the present case, we are of the opinion that the lower court correctly held the combined annual compensation of the office of circuit clerk and master commissioner was limited to $7200.00. By KRS 64.620, the Legislature fixed appellee’s compensation at $7200.00 for the years 1960— 1961. In the absence of any legislative enactment fixing his salary for 1962-1963, he is limited to the constitutional maximum of $7200.00. His total compensation from the combined offices for each of the four years is $7200.00 and he should account to the county for any excess thereof.

We recommend that the judgment be affirmed in part and reversed in part.

The opinion is approved by the Court and the judgment is affirmed in part and reversed in part.