author: MONTGOMERY, Judge.

text:
    Ernest L. PERKINS, Appellant, v. COMMONWEALTH of Kentucky, AppeHee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.

      Ernest L. Perkins, pro se.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Ernest L. Perkins was convicted and his sentence of ten years’ confinement for maliciously shooting into a dwelling house was affirmed. Perkins v. Commonwealth, Ky., 342 S.W.2d 102. In a motion seeking relief under CR 60.02, he has asked that the sentence be vacated. The trial court treated the motion as one under RCr 11.42 and denied relie'f. No objection has been made by appellant to this procedure although RCr 11.42 supplements CR 60.02 instead of supplanting it.' See Comment, RCr 11.42. It will be- considered here as a motion under RCr 11.42.'.

Appellant married Billie Gosney bn April 7, 1945. She was grantéd a divorce July 8, 1959. Following the divorce, Billie married John Linkous. Appellant’s conviction was based on the charge that he shot into the dwelling of his mother-in-law.

Fifty-nine affidavits and exhibits were filed by appellant which, in substance, were intended to show newly discovered evidence concerning the relationship existing between appellant’s then wife and John Lin-kous prior to the divorce and to show that certain testimony given at ■ the trial was perjured.

Newly discovered evidence is not a ground for relief under RCr 11.42, but it is a ground under RCr 10.06. No claim for relief under CR 60.02, subsection (2), is made because of newly discovered evidence. The motion to vacate was filed March 5, 1963. The judgment became final in 1961. The newly discovered evidence produced is untimely under the one year limitation. RCr 10.06. There is no showing that the time was extended. Thus, appellant is not entitled to relief on the basis of newly discovered evidence.

He urges that the evidence produced shows that his wife, mother-in-law, and John Linkous gave perjured testimony on his trial. Unless this constitues a valid collateral attack on the judgment, there is no ground for available relief alleged by appellant under RCr 11.42.

As previously indicated, much of the testimony offered dealt with the relationship between appellant’s ex-wife and John Linkous. The trial court found that the matters presented were immaterial to the proof of the charge of maliciously shooting into a dwelling house. At best, the testimony offered might have affected the credibility of two witnesses on immaterial points. The judgment rendered recites that prior to the trial and verdict of ten years’ imprisonment appellant had pleaded guilty and had accepted a sentence of two years. He was tried after he withdrew his plea of guilty. Neither the record of appeal from his conviction nor the record here contains any hint that the verdict was not sustained by the evidence. The evidence offered by appellant is immaterial and irrelevant to the charge upon which he was convicted, and it is not adequate to sustain a collateral attack on the judgment of conviction. The trial court was correct in so holding.

After this case was appealed, appellant offered three more affidavits purporting to contain further testimony to be considered in his behalf. Such affidavits were not considered by the trial court, are not part of the record on appeal, and will not be considered on appeal.

Judgment affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    J. C. AUSMUS, Jr., et al., Appellants, v. Jess SLUSHER, Judge, Bell County Court, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1964.
    A. Henry Ralston, Middlesboro, James T. Carey, Louisville, for appellants.
    William S. Tribell, Middlesboro, for ap-pellee.
   CLAY, Commissioner.

This is an appeal from a judgment of the Bell Circuit Court dismissing appellants’ complaint, which sought an order directing appellee, Judge of the Bell County Court, to call a local option election under KRS 242.020.

Certain procedural questions have been raised, including the lack of verification of the complaint (incorrectly styled “Petition”) filed in the circuit court, but we find the procedural objections without substantial merit. There is properly before us a controversy concerning the correctness of the county court order adjudging invalid the petition for election.

On August 3, 1964, there was filed with the Bell County Court a petition for a local option election to be held in Middlesboro. This was signed by 2,022 persons who, it was therein stated, were citizens, residents and legal voters of Middlesboro. The sufficiency of the petition was contested and 1,296 names were stricken on various grounds. Since this left an insufficient number of valid signers (the number required was 897), the County Judge declined to call the election.

The great majority of signatures stricken were ruled invalid because the “post office address” of the signer and the “correct date” of signing, as required by KRS 242.020(2), were not adequately shown. We are unable to find just cause for striking a substantial number of the contested signatures on the above grounds, and since the valid signatures far exceed the number required, it will be unnecessary to examine them individually.

This is not a case where the “Address” and “Date Signed” columns of the petition were left blank. With the exception of a few omitted dates, the petition shows a good faith attempt to write in after each signature an address and a date. Examples of signatures stricken for inadequate addresses were those where a route number is given without a box number, or a street is designated without a house number, or ditto marks appear (indicating the signer had the same address as the preceding signer). A number of signatures were stricken because the date signed was represented by ditto marks under a preceding date.

It is the contention of appellants that even the complete absence of addresses or dates does not invalidate signatures on a local option petition under the decision in Skaggs v. Fyffe, Judge, 266 Ky. 337, 98 S.W.2d 884. Therein it was held that the addresses and dates of signing were “directory” rather than “mandatory” requirements of the statute. On the other hand, the County Judge relied upon Allen v. Hardin, 272 Ky. 396, 114 S.W.2d 494, and Huie v. Jones, Ky., 362 S.W.2d 287, wherein it was held that the requirement of stating the “residence” of the signer of a school board election petition was “mandatory”.

We do not believe it necessary here to resolve the apparent conflict of principle presented by the cited cases. Assuming that the statutory requirement of KRS 242.-020(2) with respect to stating the post office address and the correct date of signing must be complied with (interested parties are cautioned to conform), we find in this case sufficient compliance.

Considering the size of the city involved, a designated street or a route number may adequately identify the “post office address” of a particular signer. It is our opinion that if the signer reasonably may be located by utilization of the address given, it constitutes a sufficient “post office address” under the statute. Likewise a “date” is sufficient if it readily may be ascertained by a directed reference to another part of the petition.

As we have heretofore indicated, by accepting a substantial number of addresses and dates which the County Judge held insufficient, we find that the petition contained more than the number of acceptable signatures required to validate it. Therefore, the election should have been called as requested in the petition. On September IS, 1964, we entered an order in this case directing appellee to call the election.

The judgment is reversed for proceedings in accordance with the Order of September IS, 1964.

      . Our consideration of the cited cases and others raises the question of whether the attempt to classify requirements of statutes as being either “mandatory” or “directory” is a proper or adequate approach to the question of compliance.

      . We have purposely avoided the use of the words “substantial compliance”, because this terminology has taken a confused position in our law in relation to the terms referred to in footnote 1.


author: MOREMEN, Judge.

text:
    Raymond STEPHENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.
    A. Dale Bryant, Campton, for appellant.
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Raymond Stephens, was convicted of willfully shooting and wounding his brother, Herbert Stephens, with the intention of killing him. His punishment was fixed at five years’ confinement in the penitentiary.

Porter Stephens lived in Bath County in a six room house (two of which were on the second floor) with his wife, his son, Herbert Stephens, and a niece, Phyllis Spencer, who was not at home at the time of the shooting. On the day of the shooting, July 29, 1963, another son, the appellant, had returned home from Ohio. In the late afternoon appellant, Ray Stephens, and Porter Nichol, a grandson of Porter Stephens, were in the road in front of the house changing an automobile tire. Mrs. Stephens was in the kitchen. Porter Stephens and Herbert Stephens were in a bedroom which adjoined the kitchen. Herbert Stephens testified that he and his father, who was drunk, had a disagreement which resulted from the fact that his father took a couple of his shotgun shells and put them in his pocket. He put his hand in his father’s pocket and retrieved them. His father fell or slid to the floor. Herbert Stephens turned to put the shells at the top of a shelf. About that time he was struck by a bullet that passed through his arm and chest and lodged against his spine. The father called for Raymond about the time the shells were taken away from him and before he slid to the floor. The first two people who came to Herbert’s assistance were Raymond Stephens and Porter Nichol. They placed him in an automobile and drove to the Mt. Sterling hospital. He was later taken to Lexington for treatment. The above mentioned people were the only ones present at the times that have been discussed.

At the trial none of these people were able to identify the person who fired the shot. The victim, Herbert Stephens, testified that when the bullet struck him it spun him around and he did not see who shot him. The father, Porter Stephens, testified that he was drunk and did not remember hearing a shot fired. The mother, Mrs. Porter Stephens, recalled only that she heard Herbert and his father talking about shotgun shells and heard him summon Raymond, but could remember little else of what happened. The reason for not remembering was that she was sick at the time and under a doctor’s care. Porter Nichol testified that he was out in the road at the time he heard the shot fired. He could add little else to the testimony.

The Commonwealth introduced all of the above persons who were at the scene of the shooting except appellant, Raymond Stephens, who did not testify in his own defense. In addition to the above testimony the Commonwealth introduced as witnesses, Sgt. Sword and Trooper Sluss of the State Police, and Sheriff Rex Crouch. They testified that some time after the victim had been delivered to the Mt. Sterling hospital they arrested appellant in a beer joint in Mt. Sterling. Sword testified that after he was under arrest appellant said he had shot his brother because his brother was beating up his father. Trooper Sluss’ testimony in the main was the same. Sheriff Crouch asked appellant if he had shot his brother and he said that he had; when asked why, he said his “god damned mother was the cause of it all.” The officers also stated that appellant had told them he had thrown the pistol out the window of the car somewhere on the road between Frenchburg and Mt. Sterling.

On this appeal it is suggested that the court erred during the course of the trial by the questioning of Mrs. Porter Stephens in such a fashion as to indicate that the court entertained serious doubts as to the truth of her testimony. The court questioned Mrs. Stephens on two occasions as follows:

1. “BY THE COURT: Mrs. Stephens, you are up here as a witness sworn now, is there any reason why you can’t remember what happened ?
“BY THE WITNESS: No, I was sick.
“BY THE COURT: Well, tell what happened, tell what you remember now; you are up here sworn as a witness.
“BY THE WITNESS: I can’t remember.
* * =1: * *
2. “BY THE COURT: Mrs. Ste-. phens, you mean to say that your son was shot and do you know that they took him to the hospital ?
“BY THE WITNESS: (witness nodding head yes) I just can’t remember.
“BY THE COURT: Do you remember when he went to the hospital that night ?
“BY THE WITNESS: Yes, they took him to the hospital.
“BY THE COURT: Why did they take him to the hospital?
“BY THE WITNESS: Because he was shot.
“BY THE COURT: And did you see him shot and blood on him ?
“BY THE WITNESS: No.
“BY THE COURT: Where was he lying when you saw him ?
“BY THE WITNESS: He was gone.
“BY THE COURT: You never did see him before he was gone?
“BY THE WITNESS: No; I can’t remember.”

We held in Collins v. Sparks, Ky., 310 S.W.2d 45, that it was not necessary for counsel to object to interrogation by the court if the alleged error was questioned in a motion for a new trial.

In support of the contention that the court by his manner of questioning gave the impression to the jurors that he felt the witness was deliberately giving false testimony, the appellant relies upon Barnett v. Commonwealth, 84 Ky. 449, 1 S.W. 722, and other cases where the court put its admonition in formal instructions to the jury. In the Barnett case this instruction was given:

“The jury are the sole judges, for themselves, of the weight of the testimony and credibility of the witnesses, and may attach such weight-to any and all parts thereof as they • may think proper; and, if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper, disregard the entire testimony of such witness or witnesses.”

To the same effect are the cases of Smith v. Commonwealth, Ky., 8 S.W. 192, 9 Ky. Law Rep. 1005; Barnard v. Commonwealth, Ky., 8 S.W. 444, 10 Ky.Law Rep. 143, where this Court also condemned the giving of such an instruction. But in the case at bar we have quite a different situation. Here a horrible, violent event was enacted in the presence or the near presence of five witnesses and, afterwards, that event was covered by a pall of silence. It is impossible to read this record without concluding that some of the witnesses were being evasive. We believe the trial court was fulfilling his obligation when he reminded the witness that she was under oath.

Appellant next complains that the Commonwealth’s Attorney was guilty of misconduct in making the following statement to the jury:

“The attorney for the defendant, in his closing argument has failed to mention to you either defense, self-defense or defense of another, which the court has instructed you on. I would therefore assume that the defendant does not rely on these defenses and they would be out.”

We believe the foregoing statement constitutes permissible argument under the peculiar facts of this case. The Commonwealth’s Attorney did not tell the jury that they should not follow the instructions. He merely stated that he assumed defendant did not rely on these defenses and they should be out. In fact, the appellant seems to have based his hopes for acquittal upon the assumption that the Commonwealth would be unable to prove its case. It is true that the officers, in relating his confession, stated that Herbert Stephens and his father were engaged in a quarrel prior to the shooting and that appellant said he shot his brother because he “was beating up on his father,” but the quality of this proof is not sufficient to form a basis upon which to rest either defense. Herbert Stephens gave the graphic details of the minor quarrel and scuffle which he had had with his father and it was certainly not of the character that would indicate his father was in danger of bodily harm. There is not one line of testimony by anyone that appellant was in danger of harm. We think the assumption of the Commonwealth’s Attorney that appellant did not rely on these defenses was proper under the circumstances.

We are of .opinion that the evidence points unerringly to the guilt of appellant and the judgment is affirmed.

Judgment affirmed.


author: PALMORE, Judge.

text:
    Bertha Davis O’Hara CARTER, Appellant, v. Charles C. CARTER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.
    James W. Burns, McKee, Lester H. Burns, Jr., Manchester, for appellant.
    Carl R. Clontz, Allen & Clontz, Mt. Vernon, for appellee.
   PALMORE, Judge.

This is a divorce action brought by the husband on the ground of cruel and inhuman treatment. KRS 403.020(4) (d). The wife counterclaimed on similar grounds, KRS 403.020(3) (b), demanding a monetary settlement by way of alimony and property restoration. KRS 403.060. The chancellor found the wife wholly at fault in causing the incompatability and found also that the parties had not accumulated any estate during the marriage. He decreed a divorce in favor of the husband only and denied relief to the wife. She appeals.

The parties married in December of 1958 and separated less than three years later, in November of 1961. He is now 70 years old, and although the record does not disclose her age it appears from the briefs that she is in her sixties. Each of them entered this particular marital venture a battle-tested veteran, having survived two or more previous marriages.

As might be expected, the respective versions of alleged cruel treatment were entirely contradictory. The chancellor chose to believe the husband. Under the principle that if on the whole case there is substantial evidence to support a finding of fact it cannot be set aside as clearly erroneous (CR 52.01), the husband’s testimony was sufficient to sustain the chancellor’s decision in this respect. Cf. Denham v. Denham, Ky., 285 S.W.2d 176 (1955). Thus we cannot accede to the proposition that under the evidence the wife was entitled to the divorce and, perforce, alimony.

From a strictly literal standpoint KRS 403.060 confers a right to alimony only when the wife obtains (or, of course, is entitled to) the divorce. However, divorce proceedings are equitable actions in this state (KRS 403.010), and equity is broader than the statute. Hence it is well settled that even when the husband is solely entitled to and obtains a divorce the wife may and in some cases should be-awarded alimony. Cf. Coleman v. Coleman, Ky., 269 S.W.2d 730 (1954); Patterson v. Patterson, Ky., 323 S.W.2d 862 (1959).

In Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961), it was held that regardless of who is at fault in bringing on the. divorce, if the wife does not have a sufficient estate in her own right and has made a substantial though indirect contribution, through performing her duties as-, a housewife, to the estate accumulated by the husband during their marriage, she-should be compensated for it in the form, of alimony. The wife relies on the Heustis. principle in this case, but in view of the factual conclusion that no estate was accumulated during the marriage it is not applicable. There is, therefore, no basis on-, which it can be held that she was entitled', to alimony as a matter of right.

At the time of the marriage the husband, owned a farm, which he later sold for $17,-500 and used a substantial part of the proceeds to build a home, fee simple title to» which is vested exclusively in him. The-wife had no property except for an automobile on which she owed $1693. The husband paid this debt and became the main-, user of the vehicle, as the wife could not. drive. The divorce decree leaves ownership and possession of the car in the wife.. The only theory on which she could have-been directly entitled to a restoration of' property is that some of her earnings from-, the operation of a restaurant during five-months of the year 1959 went into the husband’s home, or at least were retained by-him. On this issue the husband testified', that both he and his wife participated in-, the business and that it made “very, very-little” money, all of which was consumed! for living expenses, and none of which went into the home. He further testified' that during the marriage it cost more for them to live than they both earned, and! that his net worth is no more now than it. was at the time of the marriage. On the-basis of this evidence, which, though disputed, certainly was not conclusively rebutted, the chancellor found in substance that no estate had been accumulated by the husband during the brief period of the marriage. Again, since this factual conclusion had substantial evidentiary support it cannot be held clearly erroneous. CR 52.01. Denham v. Denham, Ky., 285 S.W.2d 176 (1955).

Further complaint is directed at the. allowance of only $200 for the services of the wife’s attorney. However, the adequacy of counsel’s fee cannot be considered unless the attorney to whom it is awarded is made, or makes himself, a party to the appeal. Dixon v. Dixon, Ky., 306 S.W.2d 879 (1957); Conlan v. Conlan, Ky., 293 S.W.2d 710 (1956). This was not done.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Gerald GRIFFIN et al., Appellants, v. CITY OF PADUCAH et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.

      Holland G. Bryan, Paducah, for appellants.
    H. Warren Middleton, Earle T. Shoup, Paducah, for appellees.
   DAVIS, Commissioner.

This action by taxpayer citizens of Pa-ducah challenges the validity of a Paducah ordinance creating the position of Director of Public Safety and prescribing the duties of the office. Paducah is a city of the second class, operating under the commission and city manager form of government. KRS 81.010 and 89.390 et seq.

The trial court sustained the ordinance; appellants urge reversal of that judgment on the grounds that the ordinance contravenes pertinent statutory limitations, and is ultra vires.

The questioned ordinance, omitting its preamble, is as follows:

“SECTION 1. There is hereby created the position of Director of Public Safety of the City of Paducah, Kentucky, to be filled by a person appointed by the Board of Commissioners of said city.
“SECTION 2. For and on behalf of the Board of Commissioners of the City of Paducah, Kentucky, and subject to the supervision and orders of said Board, the Director of Public Safety shall control the police and fire departments of said city and the property and equipment of such departments.
“Such Director is expressly charged with the duty of having the chiefs and members of the police and fire departments faithfully discharge the duties imposed on them by law or ordinance.
“Other duties not contrary to law or ordinance may be assigned to said Director by the Board of Commissioners.
“SECTION 3. The amount of salary to be paid to the Director of Public Safety shall be fixed by ordinance at or before any person is appointed to such position.
“SECTION 4. Any person appointed as Director of Public Safety under the terms and provisions of this ordinance shall not thereby become a member of the police department or fire department of the City of Paducah; shall not be entitled to any civil service benefits provided for by law or ordinance; and shall be subject to removal from said position at any time by the Board of Commissioners.
“SECTION 5. All ordinances and parts of ordinances in conflict herewith are, to the extent of such conflict, hereby repealed.
“SECTION 6. This ordinance shall be in full force and effect from and after its adoption.”

KRS 95.430 vests in the city legislative body the control of the police and fire departments, as well as control of the property and equipment of such agencies, in all cities of the second (and third) class. Prior to 1956 (1956 c. 246, § 12) KRS 95.430(6) reposed the control of the police and fire departments in the city manager — not the legislative body.

KRS 89.580(1) enables the Board of Commissioners (the legislative body of Padu-cah), upon written advice of the citly manager, to create by ordinance administrative boards reasonably necessary for proper administration of the city’s business. The cited statute further authorizes the Board of Commissioners to create new departments, combine or abolish existing departments, or establish temporary departments.

However, by the express terms of KRS 89.580(2), it is provided that the enable-merits do not apply to the police and fire departments in second class cities. Neither does organization of such cities under the city manager form of government affect laws relating to pension funds for police and fire departments.

Appellants reason that proper construction of the statutes, considered in light of the 1956 changes in KRS 95.430, requires the striking down of the Paducah ordinance. Our view is to the contrary.

We recognize the premise that Paducah, like all Kentucky cities, possesses only such powers as are expressly granted by the constitution and statutes of Kentucky, plus such powers as are necessarily implied or incident to the expressly granted powers, and which are indispensable to enable the municipality to carry out its declared objects, purposes and expressed powers. City of Harrodsburg v. Southern Ry. Co., Ky, 313 S.W.2d 864; 14 Ky.Digest, “Municipal Corporations,” Moreover, any reasonable doubt as to the existence of the city’s power is to be resolved against the municipality. Juett v. Town of Williamstown, 248 Ky. 235, 58 S. W.2d 411.

Our view of the effect of KRS 89.580(2) is that its import is simply to assure that nothing in KRS 89.580(1) is to be construed as affecting the status of police and fire departments in second class cities. It will be observed that absent the saving clause in subsection (2) of KRS 89.-580, power would have been granted to combine the police and fire departments, or to abolish either or both of them. We do not consider that the instant ordinance runs afoul of any statutory limitation of power by reason of KRS 89.580(1) or (2).

It is manifest that KRS 95.430 firmly vests the control of the police and fire departments, including the property and equipment of each, in the Board of Commissioners of Paducah. However, the statute does not prescribe the administrative details whereby the Board of Commissioners is to fulfill its manifold and considerable responsibilities. Thus, it is obvious that Paducah has an expressly granted power — indeed, a duty of prime significance — to provide the services of the police and fire departments. The fundamental inquiry here is whether the method proposed by the ordinance is legally appropriate.

The first section of the ordinance creates the position of Director of Public Safety, and provides that the post is to be filled by appointment made by the Board of Commissioners. It is noted that no department is created by the terms of the ordinance.

By the second section of the ordinance, the duties of the Director are defined, and the purposes of his activities are proclaimed:

“For and on behalf of the Board of Commissioners * * * and subject to the supervision and orders of said Board, the Director * * * shall control the police and fire departments of said city and the property and equipment of such departments * * *

The ordinance clearly reflects that the Board is sensitive to its responsibilities for the two important municipal departments. In no way does the Board abrogate its own fundamental duties — on the contrary, it is plain that the Board retains full authority. It merely avails itself of the good offices of the Director of Public Safety to insure the performance of its own orders and regulations relating to the two departments. Expressly, the Director is to act “for and on behalf of the Board,” and his actions are to be “subject to the supervision and orders of the Board.” Moreover, by the terms of Section 4 of the ordinance, the Director is “subject to removal from said position at any time by the Board of Commissioners.”

We have recognized and approved the delegation of ministerial or administrative functions to subordinate officials, even though, nominally, all administrative powers are vested in the municipal legislative body. Kohler v. Benckart, Ky, 252 S.W.2d 854. We perceive nothing in the instant ordinance which places it beyond the rationale of the principles enunciated in Kohler, supra.

' It is significant that the Board of Commissioners requires the Director of Public Safety to act for and on behalf of the Board, subject to the supervision and orders of the Board, and subject to removal at any time at the will of the Board. The responsibilities thus imposed on the Director are neither legislative nor discretionary, but are ministerial and administrative. So we do not have at bar the question of delegation of legislative power considered in Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d S84. However, it is noteworthy that in that opinion the factor of retention of the right to revoke the delegated power is regarded as vital.

In McQuillin, Municipal Corporations, 3rd Ed., Vol. 2, § 10.41, it is written:

“While legislative or discretionary powers or trusts devolved by charter or law on a council or governing body, or a specified board or officer cannot be delegated to others, it is equally well established that ministerial or administrative functions may be delegated to subordinates. The law has always recognized and emphasized the distinction between instances in which a ■discretion must be exercised by the ■officer or department or governing body in which the discretion is vested, and the performance of merely ministerial duties by subordinates and agents. Hence, the appointment of agents to ■carry out the authority of the council is entirely proper, and does not violate the rule delegatus non potest delegare. So the council may authorize the mayor to make a contract which the council .alone is authorized to make, and itself afterwards ratify such contract and take action, as in issuing bonds, in pursuance of it. In such case the mayor merely acts as the instrument or aman-uensis of the council. It is through '.him that the contract is made. The council by ratification finally determines and thus fulfills the duty imposed by law.”

For these reasons, and in light of the primary responsibility of the Board of Commissioners in properly exercising its discretion as to the necessities for best carrying out its own duties, it is our conclusion that the challenged ordinance is valid.

The judgment is affirmed.


author: PER CURIAM.

text:
    In re William Alien SHUMATE, Louisville, Kentucky.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.
   PER CURIAM.

The respondent attorney was convicted of four counts of the offenses of embezzling money which came into his charge as Trustee in Bankruptcy of the United States District Court, Western District of Kentucky, and knowingly and fraudulently concealing money from the Trustee in Bankruptcy and from the creditors in the bankruptcy proceedings, in violation of 18 U.S.C.A. §§ 152, 153. Pursuant to the conviction, on his not guilty plea, respondent was sentenced to four separate terms of imprisonment of eighteen months each; the sentences were made concurrent by the order of the United States District Court.

This disciplinary proceeding was instituted pursuant to RCA 3.335. By the terms of the cited rule, the Board of Bar Governors of the Kentucky Bar Association afforded a hearing as to extenuation or mitigation of the acts for which the respondent was convicted. The Board has submitted its recommendation that respondent be permanently disbarred from engaging in the practice of law in Kentucky.

The record reflects that respondent reimbursed his successor Trustee in Bankruptcy in sums aggregating about $4,-700 to fully cover shortages in accounts. Respondent presented evidence of his own illness and of defalcations by a former employee of his office. These matters were considered by the Board and by this Court. However, the response is not deemed sufficient in light of the fundamental requirement for absolute integrity required for continued entitlement to engage in the practice of law. It is observed that respondent by no means attempts to prove that all of the $4,700 shortage was occasioned by the misdeeds of others. Respondent’s unexplained absence from his usual abode, shortly after the fact of his shortage came to light, dispels his claim of personal innocence. The judgment of conviction forecloses inquiry into the merits of his guilt or innocence. In re Rudd, 310 Ky. 630, 221 S.W.2d 688. It may not be debated that “moral turpitude” is inherent in the felony conviction of this respondent. The presence here of “moral turpitude” distinguishes the case at bar from Kentucky State Bar Association v. McAfee, Ky., 301 S.W.2d 899, and Kentucky Bar Association v. Brown, Ky., 302 S.W.2d 834.

The recommendation of the Board is. confirmed, and respondent William Allen Shumate is hereby disbarred from further engaging in practice of law in Kentucky.


author: STEWART, Judge.

text:
    Harold MOBERLY et al., Appellants, v. Roy BRUNER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.

      Frank M. Dailey, Frankfort, for appellants.
    Harry F. Malone, Louisville, for appel-lee.
   STEWART, Judge.

Appellee, Roy Bruner, applied for a retail beer license for premises situated in Jefferson County. The Jefferson County administrator approved the issuance of the license, after a hearing on a protest to the application. When appellee filed his application with the state administrator of the malt beverage unit, the protestants, composed of property owners in the vicinity and the pastor and members of a church located near the premises, again entered their protest, and the granting of the license was refused. This ruling was carried before the Alcoholic Beverage Control Board, whose members are appellants herein. The Board held a hearing and also denied the application.

The Board recites these findings of fact upon which its ruling is based: (1) That as the proposed beer outlet is at the southwest corner of Parkwood Drive and Man-slick Road, and as the latter road is heavily traveled, allowing beer to be sold at that site would increase parking thereat and tend to increase traffic congestion and produce additional hazards in the intersection. (2) That as five school buses stop at the intersection twice daily and on some evenings, during the week, to load and unload children, and as over 100 children each day get aboard and alight from these buses, if the sale of beer should be permitted near the place where these children gather they would be exposed to a detrimental influence. (3) That as the place for which the permit to sell beer is sought would be in the midst of a residential section and also within 250 feet of a church, and as a great number of the residents and the church members and their pastor are vigorously protesting its establishment, the license should not be granted in the face of such opposition. (4) That as beer is now obtainable at two shopping centers which are close by, no necessity exists to create another beer outlet in the area.

Appellee then appealed to the Franklin Circuit Court, which held that the Board “exceeded its authority in denying the license” and directed that its order be set aside and that it grant the license applied for.

On this appeal the Board argues that the facts determined by it constitute a sufficient basis for the exercise of its discretion in denying the license to appellee. KRS 243.450(2) states that such a license “may be refused by a state administrator for any reason which he, in the exercise of his sound discretion, may deem sufficient.”

Relying upon Moberly v. King, Ky., 355 S.W.2d 309, appellee takes the position that the findings of the Board should have no controlling effect upon the right of a qualified person to obtain a license applied for in a legal manner. He asserts the King case held the Board need not consider whether the issuance of a retail malt beverage license will be in the public interest or make findings in respect thereto, but that compliance with the statutory conditions is enough to authorize its issuance. As he measures up to the tests laid down in the King case, where similar contentions were raised to the issuance of a license, he claims the proof of the protestants that damage or danger of the type described might result to their neighborhood created no right in them to contest his application. Furthermore, he argues that those who opr pose the granting of the license base their protest upon events which they believe might occur if he obtains his permit to sell beer; and that such opinionated evidence does not afford a valid reason for refusing his application.

In the recent case of Alcoholic Control Board, etc. v. Woosley, Ky., 367 S.W.2d 127, 128, this Court took the stand, and it presently adheres to the principle, that the Board, within the purview of KRS 243.450(2), can refuse to grant a license if it finds that the allowance of intoxicants to be sold at a particular place would adversely affect the public interest. The-opinion in that case said (p. 28): “With, respect to retail distribution outlets, the-legislature has specifically prescribed certain conditions of eligibility to obtain a license. If any such disqualifications exist, the state administrator has no authority to issue a license. On the other hand,, the legislature has, by the enactment of KRS 243.450(2), taken cognizance- of a: twilight zone within which the administrative agency must determine if any particular license should be granted when substantial reasons exist why its issuance would not be in the public interest. * * * ”

In the Woosley case, under the evidence introduced, the Board refused to issue an alcoholic beverage license to the applicant, relying upon its right to do so under the discretionary power reposed in it by law. The order denying the license was appealed to circuit court and, in that court, the Board was directed to approve the license because it had shown no valid reason for rejecting Woosley’s application. This Court reversed the circuit court, holding that the circuit court’s ruling “clearly annulled” the provisions of KRS 243.450(2), quoted hereinbefore. Therefore, under the-Woosley case it seems clear the authority of the Board to exercise its sound discretion in awarding or withholding licenses, for the sale of intoxicating beverages is established beyond question.

Nor can we say the evidence upon which the findings of fact of the Board are based is of a speculative or contingent nature. The facts in this case are very similar to those presented in the Woosley case, and there it was held the findings of the Board were adequately supported by the testimony of the protestants.

Wherefore, the judgment is reversed.


author: CULLEN, Commissioner.

text:
    C. H. FARLEY and Herbert Cool, Petitioners, v. Charles E. LOWE, Judge, Pike Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Sept. 25, 1964.
    Henry Stratton, Francis M. Burke, Pike-ville, for petitioners.
    Judge Charles E. Lowe, Pikeville, for respondent.
   CULLEN, Commissioner.

The grand jury of Pike County returned 33 indictments against C. H. Farley, superintendent of schools of the county, and Herbert Cool, finance officer of the school system, charging them with misapplication of school funds. In addition, the grand jury returned 20 indictments against Farley alone, charging him with corrupt practices. Twenty-six of these indictments were assigned for trial before Judge Charles E. Lowe, judge of Division Two of the Pike Circuit Court. Farley and Cool filed verified motions containing detailed allegations of prejudice against them on the part of Judge Lowe and asking that he vacate the bench. The motions were overruled. Farley and Cool now have brought an original proceeding in this court seeking an order prohibiting Judge Lowe from presiding on the trial of the indictments.

The indictments were returned by the June 1964 grand jury. Judge Lowe was elected to office at the November 1963 regular election. The verified motions of Farley and Cool alleged that the administration of the school system was made a major partisan political issue during both the primary and the general election in 1963; that Judge Lowe, as a candidate, appeared at political rallies with other candidates of his party who made speeches charging Farley and Cool with crimes in the administration of the school system; and that on the general election day Judge Lowe said to voters at one precinct: “Help elect me and we’ll clean Farley and his mess out.” The motions further alleged that after taking office Judge Lowe stated his belief that Farley was guilty of committing criminal offenses in the conduct of the school system. Other allegations were that Judge Lowe chose bitter political enemies of Farley and Cool as jury commissioners and that he personally selected the grand jury members after having had them individually investigated for political affiliation.

It is our opinion that the allegations of the motions showed such bias and prejudice on the part of the judge as to require him to vacate the bench. The facts stated in the motions must be accepted as true. Neace v. Commonwealth, 243 Ky. 149, 47 S.W.2d 995.

Ordinarily the remedy by appeal is considered adequate in case of an improper refusal of the trial judge to vacate the bench. Brents v. Burnett, 295 Ky. 337, 174 S.W.2d 521. However, upon a showing in a particular case that the remedy by appeal is not adequate the original jurisdiction of this Court may be invoked. Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915; Commonwealth ex rel. Meredith v. Murphy, 295 Ky. 466, 174 S.W.2d 681. Here the remedy by appeal might require the taking of 26 appeals. We do not consider this an adequate remedy.

It is ordered that Judge Lowe vacate the bench in the proceedings on the indictments against Farley and Cool.


author: BRADY, Commissioner.

text:
    Eleanor TAYLOR, a Minor by William Taylor, Next Friend, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and Francis X. English, Defendants-Appellants.
    Nos. 31648, 31649.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.

      Evans & Dixon, William W. Evans, St. Louis, for defendant-appellant Francis X. English.
    Donald W. Bird, St. Louis, for defendant-appellant St. Louis Public Service Co.
    Sherman Landau, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Defendants appeal from a judgment for $15,000.00 entered upon a jury verdict in plaintiff’s favor in an action brought to recover for personal injuries she suffered as a result of being struck by an automobile driven by the defendant English. The allegations of prejudicial error here involved have reference only to the trial court’s action in giving certain instructions and in refusing to give others offered by the defendant company. The factual statement will be limited to those issues.

The plaintiff was upon the public sidewalk near the northwest corner of the intersection of Page and Academy avenues in the city of St. Louis when she was struck. The issue actually tried was which defendant was to blame for the collision in which they were involved and which had resulted in the English automobile coming upon the sidewalk and striking the plaintiff. The defendant English contended that he had parked his automobile along the north curb of Page just east of a bus stop zone. This zone extends eastwardly about 90 feet from the northeast corner of the intersection. Page runs east and west and when he saw his passengers come out of the church located on the northwest corner of this intersection, he drove westwardly into and partially through the bus stop zone, intending to turn right at Academy and pick them up. He was driving in the lane next to the north curb. When he was about half way through the bus stop zone, his automobile was struck at the left rear fender by the defendant company’s westbound bus. The impact caused his speed to increase. His automobile was knocked to the right and over the north curb of Page causing him to lose control as it continued on to knock down an. electric signal located at the northeast corner of this intersection to cross Academy and to strike the plaintiff on the sidewalk on the northwest corner of the intersection. At the time his automobile was struck by the bus he was about 45 feet east of the northeast corner of the intersection.

The driver of defendant’s bus related a different chain of events. He was driving westwardly in the second lane from the north curb line of Page at a speed of about 20 miles per hour. It was his intention to turn to his right and stop in the bus stop zone to pick up some passengers. He started turning to his right to pull into the zone when he was about 15 to 55 feet west of the eastern edge of the bus zone. His testimony was that English’s automobile was stopped as he approached and only after he started to angle into the zone did English start forward. His evidence was that when the front end of the bus was about four feet from the curb on its right, English overtook the bus and tried to pass on the right. His speed was then 5 to 7 miles per hour and he was slowing down. He estimated English’s speed as he accelerated to pass at 20 to 30 miles per hour. When the front end of the bus was “close” to the intersection, the driver heard a “clicking” or “scraping” noise caused by English’s automobile as it came against the bus at a point halfway between the front and rear doors. His testimony was that the impact between the bus and automobile was so slight it was not felt but heard by the passengers and himself.

The plaintiff testified she knew nothing of the collision between the bus and automobile and saw the automobile as it collided ; with the stop sign at the northeast corner of ’ this intersection. She estimated its speed at 30 miles per hour at that time. She took a few steps trying to avoid being struck but was unsuccessful.

There was a great deal of other evidence and a number of other witnesses, passengers on the bus and passengers in the automobile, gave testimony but their support or contradiction of either theory is not pertinent to our inquiry. What has been above stated is sufficient to illustrate that there was conflicting evidence and divergent theories as to the cause of the collision between the automobile and the bus.

As to the defendant company Instruction 1 informed the jury that if they found that “ * * * on the occasion shown in evidence * * * ” the company “ * * * failed to exercise the highest degree of care to keep a watch and lookout ahead as its bus approached the loading zone at the east side of Acadamy Avenue, and that such failure was negligent and that it directly caused the collision shown in evidence and the injury to plaintiff * * then their verdict should be for the plaintiff and against the company. Instruction 2, the submission against English, was identical except for the interchange of name.

The trial court also gave Instruction 3. This instruction told the jury that “ * * * [i]f you find and believe from the evidence that negligence on the part of defendant St. Louis Public Service Company as submitted in these instructions directly combined and concurred with negligence on the part of defendant Francis X. English, as submitted in these instructions, * * * ” to directly cause the collision and plaintiff’s injury, then their verdict would be in favor of the plaintiff and against both defendants.

The defendant company also contends the trial court prejudicially erred in refusing to give certain other instructions which it offered. These instructions were B and I> which were offered in the alternative, and Instruction C. Instruction C is a definitive instruction wherein the term “proximate cause” is defined to mean “ * * * that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”

Instruction B consists of two paragraphs the first of which is an abstract statement of law stating that “ * * * before a defendant can be found to answer in damages for injury to a plaintiff the negligence submitted against such defendant must he found to be the direct and proximate cause of such injury.” Instruction D also contains two paragraphs and the first of these is an abstract statement of law. In that instruction the above quotation from Instruction B is repeated and then followed by a statement that if the negligence of another intervenes between that of a defendant and the injury to a plaintiff then the plaintiff cannot recover from such defendant. The second paragraphs of these instructions are identical in hypothesizing the failure of English to stop his automobile after the collision and while it traveled 85 feet before striking the plaintiff as intervening negligence and informing the jury that if they found the bus driver’s negligence, if any, “ * * * was not a direct and proximate cause of plaintiff’s injuries, * * * ” then they were to find for the defendant company.

The defendant company advances two arguments to' support its contention the giving of Instruction 1 constitutes prejudicial error. It first contends the instruction, to quote from its brief, did not require “ * * * the jury to find, that the collision between the bus and the automobile was the proximate cause of plaintiff’s injury. * * ” There is no merit to this argument. The instruction clearly required the jury to find that the failure to keep a lookout was negligence and that “it” directly caused the collision and the plaintiff’s injury. The plain wording of the instruction makes clear that “it” refers to the negligence submitted; the failure to keep a lookout. Certainly the company cannot complain because the plaintiff assumed a burden greater than necessary by the use of the word “directly.”

The company next contends that the instruction improperly injected into this case an alleged act of antecedent negligence which could not have been the proximate cause of plaintiff’s injury. In support of this contention it emphasizes the words * * as its bus approached the loading zone at the east side of Academy Avenue * * * ” as they appear in the instruction. The company’s argument is that under the evidence the failure to keep a lookout had to occur after the bus entered the loading zone in order for it to be the direct cause of plaintiff’s injury. It urges that failure to keep a lookout prior to that time constitutes antecedent negligence which could not have caused plaintiff’s injury. We cannot agree that defendant was under no duty to keep a lookout until he pulled into the bus zone. This argument is based upon adoption of the company’s testimony that the English automobile came from behind the bus and overtook it on the right. The witnesses who testified on behalf of English all stated that the company’s bus was behind and to the left of the English automobile, when the latter began to move forward and that it overtook him. It was also his evidence that there was nothing ahead of him or that would have prevented the bus driver from seeing him. The jury therefore heard evidence which, if believed, it could reasonably infer that had the bus driver been keeping a proper lookout ahead, he could have seen the automobile driven by English.

The defendant English attacks Instruction 2 upon the ground that it erroneously fails to hypothesize any facts by which the jury could resolve the conflict between the theories advanced by each defendant as to how the collision between them occurred. The simple answer to this contention is that in a lookout submission “ * * * it is generally considered sufficient to hypothesize failure to keep a lookout and require a finding that such failure was negligence and directly caused the collision.” Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 1. c. 366(4), 367 and cases there cited. It is not necessary to hypothesize the exact manner and means by which either defendant could have avoided the collision so long as there is substantial evidence that he had the means and utility to have so acted that a collision would have been avoided. Boehm v. St. Louis Public Service Co., supra. As previously set forth that evidence was present in this case. These assignments of prejudicial error as to Instruction 1 and 2 are without merit.

The allegation of prejudicial error brought by the company as to the giving of Instruction 3 is that it allowed the jury to return a verdict against both defendants when the only possible verdict must have been against one defendant or the other or neither. Each defendant also complains about the instruction on the ground that it assumed negligence on the part of that defendant.

The argument advanced by the company to support its separate allegation of prejudicial error proceeds upon the erroneous assumption that the jury must accept, in toto, the evidence advanced by the company or accept, again in toto, the evidence advanced by the defendant English. This is not the law under the facts of this case. There was ample evidence to support each facet of each of the defendants’ theories. The plaintiff is entitled to that part of each defendant’s case that aids her in making a case against the codefend-ant as well as against the defendant offering that evidence. The defendant company relies heavily upon evidence the defendant English was stopped when the bus was approaching. English’s evidence was to the contrary and the plaintiff was entitled to use that part of English’s evidence to make her case against the defendant company.

Instruction 3 could easily have been so worded as to remove the criticism that it assumed the defendants’ negligence. However, we do not hold the giving of that instruction prejudicial!y erroneous. The reference to plaintiff’s verdict-directing instructions is not as clear as it should have been yet we think the jury would understand from reading the plaintiff’s verdict-directing instructions which immediately preceded Instruction 3 together with that instruction that they were not to assume the negligence of the defendants or of either of them. The instruction makes clear enough that if they found either defendant negligent under the other instructions submitted to them, then, reading this instruction, they were to determine if that negligence combined to cause the collision and plaintiff’s injury. If their decision was in the affirmative, then they were to render a verdict against both defendants. While Instruction 3 could have been made more clear, we think it so clear to men and women of average intelligence that the giving of this instruction, even worded as it was, does not require our interference. Especially is this so when Instruction 15 is considered. That instruction informed the jury that “ * * * the Court does not mean to assume as true or established * * * ” any of the matters referred to in the instructions but left the jury “ * * * to determine from the evidence whether or not they have been proved as facts by the evidence.” See Mastin v. Emery, Bird, Thayer Dry Goods Co., 236 Mo.App. 487, 140 S.W.2d 720, where an instruction identical to Instruction 15 was held to cure an assumption of negligence, if any was made, in a verdict-directing instruction employing the phrase “ * * * as submitted in this instruction.”

We pass now to the three instructions which the trial court refused to give. It is obvious that Instruction C was an abstract statement of law which does not even attempt to relate the definition given to the issues of the instant case. It was not error to refuse this instruction. Mo.Digest, Trial,

Neither do we hold the trial court committed prejudicial error when it refused to give Instruction B and D. As stated previously each of these instructions consisted of two paragraphs the first of which was an abstract statement of law which informed the jury that before a defendant could be held to answer for damages the negligence submitted against him “ * * * must be found to be the direct and proximate cause of such injury * * (Emphasis supplied.) This is not the law. A defendant is liable if the negligence of which he is alleged guilty is a proximate cause of an injury even though it is not the sole proximate cause. The instruction therefore contained an abstract statement of law which was incorrect. Caldwell v. St. Louis Public Service Co., Mo., 275 S.W.2d 288, 1. c. 292-293; Mo.Digest, Trial, Mo.Digest, Negligence, (1). This justifies the refusal to give the instruction.

Instructions B and D were not only subject to the error stated above but also were contradictory and patently confusing. In the latter part of the second paragraph of each instruction the jury is instructed that if they found “ * * * the negligence, if any, of the bus driver was not a direct and proximate cause of plaintiff’s injuries, * * * ” then they were to find for the defendant company. The first paragraph of this instruction informed the jury that their verdict was to be in favor of the company if the jury found the defendant company’s submitted negligence was not the direct and proximate cause of plaintiff’s injuries. The second paragraph informed the jury that their verdict was to be in favor of the company if they found the -defendant company’s submitted negligence was not a direct and proximate cause of plaintiff’s injuries. The contradiction is patent and the confusion attendant had such instructions been given obvious. The trial ■court’s action in refusing these instructions ■does not constitute reversible error.

It follows that the allegation of error brought by the defendants are without merit and the judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

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

RUDDY, J., not participating.


author: DOERNER, Commissioner.

text:
    Walter HUBBARD, Claimant-Respondent, v. ESTATE of Moritz HAPPEL, Deceased, Defendant-Appellant.
    No. 31731.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 26, 1964.

      Myrl B. Sternke, Palmyra, Rendlen & Rendlen, Branham Rendlen, Hannibal, for defendant-appellant.
    J. Andy Zenge, Jr., Canton, for claimant-respondent.
   DOERNER, Commissioner.

In lieu of the usual transcript, the parties to this appeal filed a statement of the case, which was approved by the trial court and certified as the transcript on appeal. Civil Rule S3.13, V.A.M.R. Since it is relatively short we quote it in its entirety:

“Moritz Happel died in Hannibal, Missouri on March 31, 1960 and his wife, Margaret L. Happel was appointed Executrix of his Last Will and Testament on April 25, 1960 by the Probate Court of Marion County, Missouri.
“Thereafter Claimant Walter Hubbard filed his demand in the Probate Court of Marion County, Missouri on August 15, 1960 against the estate of Moritz L. Happel in the sum of Six Thousand Five Hundred Dollars ($6,-500.00) on account of money alleged to have been loaned to decedant (sic). The Executrix of the estate of Moritz Happel waived the service of all notices but did not consent to the claim.
“On August 6, 1962 claimant, Walter Hubbard, made application to the Marion County Probate Court to transfer said claim to the Marion County Circuit Court which application was granted by said Probate Court on August 6, 1962.
“The Circuit Court of Marion County, Hon. Elgin T. Fuller, Judge, presiding, set the cause to he heard by jury in Palmyra, Missouri, on June 3, 1963. On June 3, 1963 the cause was called for trial and a jury of twelve good and lawful citizens of the County were duly sworn to try the issues and the cause proceeded to trial.
“Plaintiff’s witness Herbert Richter on direct examination identified Plaintiff’s Exhibit Number 1, a sale memorandum as being in the handwriting of Moritz Happel, deceased. The same witness identified Plaintiff’s Exhibit Number 2, a check dated September 9, 1958, as being in the handwriting of Walter Hubbard and the endorsement on the reverse side as being the handwriting of Moritz Happel. The witness further identified Plaintiff’s Exhibit Number 3, a check dated September 5, 1958, in the sum of Three Hundred Fifty Dollars ($350.00), as being written and endorsed by Plaintiff. The same witness identified Plaintiff’s Exhibit Number 4, dated September 9th, 1958, a memorandum, as being written in the hand of Moritz Happel.
“Plaintiff’s witness, Herbert Richter, on cross-examination identified Defendant’s Exhibit Number A, a check dated February 1,1959, as being written by Moritz Happel, deceased, and endorsed by Claimant, Walter Hubbard. The same witness identified Defendant’s Exhibit B, a check in the sum of Three Hundred Dollars ($300.00) dated October 27, 1958 as being written and endorsed by the Plaintiff. Plaintiff’s witness Herbert Richter further testified that the handwriting on Defendant’s Exhibits F-l, F-2, G, and H was that of Moritz Happel, deceased.
“Immediately before Plaintiff rested he introduced Exhibits 1, 2, 3, and 4 which were ordered admitted by the Court and which were individually exhibited to the jury.
“Defendant’s witness, Maurice L. Happel, son of decedent also identified Plaintiff’s Exhibits 1, 2 and 4 and Defendant’s Exhibits A, F-l, F-2, G and 4 exactly as did Plaintiff’s witness Herbert Richter. Defendant’s witness, Maurice L. Happel further testified that Exhibits F — 1, F-2, G and H were business entries made by decedent in the usual course of business.
“Thereupon Defendant attempted to introduce Exhibits A, B, F-l, F-2, G and H into, evidence, but the Court sustained Plaintiff’s objection that said Exhibits were not sufficiently connected with the transaction brought out in Plaintiff’s evidence as to be admissable. Defendant excepted then rested and the Court directed a verdict for the Plaintiff.
“Defendant duly filed a Motion to set aside verdict and Motion for a New Trial on June 8, 1963 which Motion was submitted thereafter to the Court on June 28, 1963. Thereafter Judge Fuller was stricken ill and no ruling was forthcoming from the Court until the ninety day period had expired. Defendant filed in the Circuit Court of Marion County, Missouri a Notice of Appeal on September 5, 1963.
“It is agreed between Plaintiff and Defendant that the question to be presented on this appeal is the admissibility into evidence of Defendant’s Exhibits A, B, F-l, F-2, G and H in this cause. Said Exhibits are filed with the Clerk of this Court and photo-copies thereof are attached hereto. The same are made part of hereof by specific reference.”

A further statement as to the exhibits is obviously necessary. Claimant’s Exhibit 1 is a carbon copy of a sales memorandum on a printed form, headed “Livestock Contract” and reads as follows:

“THIS CONTRACT made this_8th day of Sept. 1958 by and between Zalondek Bros of Kremlin. Okla. hereinafter known as SELLER, and M. L. Happel of Amarillo, Texas hereinafter known as BUYER, covers the sale of the following described livestock, for the consideration of the sum of $(figures illegible) part payment of purchase price, in hand paid to Seller by Buyer, and Seller hereby sells and agrees to deliver to said Buyer at prices listed:
No. Kind Brands Price
About Hereford & Angus Z right Hp 24 8%oo 1,000 Steers
Cattle are now located at ranch or farm known as Zalondek Bros and are to remain on the same feed, water and handling until the contract is consummated unless otherwise specified in writing and agreed to by both parties. Cattle are now on: Grass 2L Feed Lot ____ Grass and Cake_Silage
_Wheat Pasture_
Cattle to he weighed as follows: Cut_% at Kremlin Okla
LEAVE_HOW_WEIGHED DRY AT_ SHRINK 3% %. Delivery to be made on or before stock yards or truck Buyer’s option, F.O.B. Cars at:_
All cattle to be sound and in merchantable condition and free of any con-tageous disease, Crippled, deformed, blind, one-eyed, locoed, lump-jawed, stage, bob tailed or otherwise deformed animals, may be rejected by the Buyer, Health and brand certificates to be furnished by the Seller. All cattle are to be delivered free of all encumbrances and with a clear
title. REMARKS: Cattle to be taken in 3 days delivery days Sept 29 & 30 and Oct 1st. Cattle to gathered between 6:30 and 7 a. m. trucked to Kremlin weighed and shrunk 3%. Sellers agree to satisfy Dutch McConnel
M. L. Happel J. W. Zalondek
BUYER SELLER ”

Claimant’s Exhibit 2 is a check for $350 dated September 5, 1958, signed Walter Hubbard, payable to M. L. Happel, endorsed on the back “M L Happel by Walter Hubbard” and bearing on its face the words “On cattle.” Claimant’s Exhibit 3 is a check for $6150 dated September 9, 1958, signed Walter Hubbard, endorsed on the back “M. L. Happel,” bearing on its face the words “On cattle.” Claimant’s Exhibit 4 is written on the reverse side of a blank check and reads as follows:

“9-9-58
“This is to say I owe Walter Hubbard $6500 1/2 down payment on Zolnedek Yrls. steers
M.L.Happel”
(The figure “6” in that of $6500 appears to have been written over the figure “7”, as best we can decipher it with the aid of a magnifying glass)

The exhibits which were offered by the defendant Estate are as follows: Defendant’s Exhibit A is a check for $21.79 dated February 1, 1959, signed M. L. Happel, endorsed on the back “Walter Hubbard,” and bearing on its face the words “bal Due.” Defendant’s Exhibit B is a check for $300 dated October 27, 1958, signed “M. L. Hap-pel by Walter Hubbard,” and endorsed on the back “Walter Hubbard.” Defendant’s Exhibits F-l, F-2, G and H defy description, other than the fact that they are contained in what seems to be a sales book, and we therefore reproduce them:

The initial point in defendant’s brief is that the court erred in excluding defendant’s Exhibits A and B because “ * * * such cancelled checks are presumptive evidence that the amounts were paid to Plaintiff on account of the debt shown to have existed, and such checks cannot be excluded on the grounds that they belong to a different transaction until the presumption is overcome by proof.” We cannot accept that proposition in its entirety. A cancelled check endorsed by the payee and paid by the drawer’s bank may raise a presumption that payment of the amount specified therein was received by the payee; but whether it raises the further presumption that the payment was made on the particular obligation sued on depends upon the state of the record. If the evidence shows that there existed only the matter in suit, and that there were no other transactions between the parties, a presumption will arise that the payment was made on the obligation which is the subject of the suit. Caneer v. Kent, 342 Mo. 878, 119 S.W.2d 214; Jesse v. Davis, 34 Mo. App. 351. For as pointed out in Caneer v. Kent, supra, and Miller v. Miller, 169 Mo.App. 432, 155 S.W. 76, under such circumstances the court would otherwise have to presume that the payment was made as a gift, which it cannot do. But if the evidence shows the existence of other obligations in addition to the one sued on, or that the relationship of the parties was such that there were other transactions between them, then (nothing more appearing) no presumption arises that the payment made by the check was on the matter in suit. And under such circumstances, in order to have the check admitted into evidence, the burden would be on the defendant to show that the cancelled check represented a payment made on the obligation sued on. That was the situation in Poland v. Fisher’s Estate, Mo., 329 S.W. 2d 768, where plaintiff filed a claim for $11,287.53, the aggregate amount due on various loans made to the deceased during his lifetime. The evidence showed that the deceased (as here) had been a dealer in livestock, purchasing and selling the stock through the facilities of a stockyard and a brokerage firm owned by plaintiff. The evidence further showed that the income to the plaintiff from the deceased for caring for the latter’s stock on a per diem basis, and for commissions on sales, amounted to about $3,000 per month. During the trial the defendant estate offered sixteen cancelled checks of the deceased, payable to the plaintiff, four of which were excluded for the reason that no showing had been made that they pertained to any item involved in the case. In upholding this ruling of the trial court on appeal the Supreme Court said (329 S.W.2d 770):

“ * * * The checks themselves did not indicate that the amounts stated thereon were in payment on any items claimed to be due from Fisher to plaintiff. There was no evidence either oral or otherwise from which a finding could be made that the checks were involved in any transaction making up the amount due from the estate. * * * We rule the trial court committed no error in rejecting the exhibits as evidence of any payment made by Fisher to Poland for any of the items sued on in this case.”

And see Trumbo v. Flournoy, 77 Mo.App. 324, Bass v. Daetwyler, Mo.App., 305 S.W.2d 339. The fundamental reason for the rule is that payment is an affirmative defense, and the burden of proving it is on the defendant. Emory v. Emory, Mo., 53 S.W.2d 908; Machtinger v. Grenzebach, Mo.App., 282 S.W.2d 200; Alimon v. Alimon, Mo.App., 306 S.W.2d 651.

From the meager information contained in the statement of facts and the exhibits attached thereto, unsupplemented by any explanation in the defendant’s brief, we gather that claimant made a loan of $6500 to the deceased. Presumably this loan had some unexplained connection with what appears to have been the deceased’s purchase of steers from Zalondek Bros. Defendant seems to concede that claimant’s evidence was sufficient proof to establish the loan, for in its brief, after referring to claimant’s Exhibits 1, 2, 3, and 4 it states, “ * * * Thus the Respondent proved his alleged debt by cancelled checks between the parties. * * * ” We might add that the deceased’s indebtedness to claimant was also substantiated by the memorandum of indebtedness executed by the deceased. Defendant’s defense, as stated in its brief, was that: “The defense to the plaintiff’s claim was that the claim had been satisfied in full by payment, or by other credits, or both.” “Other credits” would indicate that there were other transactions between the claimant and the deceased. Defendant does not so state, but presumably it sought to establish such credits from other transactions by Exhibits F-1, F-2, G and H. But without any explanatory testimony those exhibits on their face did not show any connection with claimant, or with the loan sued on. Exhibit F-l was on the back of Exhibit H. Exhibit H, as well as Exhibit F-2, appears to be a record of the firm of Richter & Hap-pel relating to purchases made from Zalon-dek Bros, and sold to M. L. Happel. Neither of these three exhibits contains the name of or makes any reference to claimant. Exhibit G appears to be a memorandum covering the purchase by Richter & Happel of fifty-eight unspecified units, and their sale to Hubbard & Co. There is nothing in the statement of facts which identifies claimant with that firm, but even if we assume that Hubbard & Co. is the name under which claimant does business, there is nothing on the face of the exhibit which would indicate that it had any connection with the loan sued on. All that the exhibit does is to confirm the defendant’s statement in its brief that there were other transactions between the claimant and the deceased. We rule that under those circumstances the trial court did not err in excluding defendant’s Exhibits A and B. Poland v. Fisher’s Estate, supra; Trumbo v. Flournoy, supra.

Defendant’s second and third points may be considered together. Defendant cites Section 473.380, RSMo 1959, V.A.M.S., which provides in part that no claim shall be allowed against an estate unless it is accompanied by an affidavit of the claimant stating that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled and that the balance claimed is justly due. Defendant concedes that plaintiff’s claim was accompanied by a proper affidavit. But it contends that under the statute it was incumbent upon the claimant to introduce evidence to the effect that no payments had been made on the loan by defendant; and that having failed to do so “ * * * defendant’s motion for a directed verdict made at the close of plaintiff’s case” should have been sustained. In the first place, the foregoing statement of facts does not show that the defendant filed a motion for a directed verdict at either the close of claimant’s case, or at the close of all of the evidence. But more importantly, defendant’s contention is not the law. Of course, if a claimant concedes that payments were made on the subject of the claim, he must show such credits in his claim. Knecht v. United States Savings Institution, 2 Mo. App. 563. But if a claimant does not so concede, the burden is on the estate to prove payment, not on claimant to prove nonpayment. Courtney’s Estate v. Lanznar's Estate, Mo.App., 296 S.W.269; Rhoades v. Robinson’s Estate, 222 Mo.App. 912, 6 S.W. 2d 1007; Ledbetter v. Allen’s Estate, Mo. App., 183 S.W.2d 846. It is only necessary for a plaintiff to plead and prove non-payment where the fact of non-payment is a necessary element of his cause of action. State ex rel Spaulding v. Peterson, 142 Mo. 526, 39 S.W. 453, adopted en banc 142 Mo. 526, 40 S.W. 1094; Mozingo v. Mozingo, Mo.App., 149 S.W.2d 897. Since claimant’s claim was based on an indebtedness, that rule was not applicable here. Poland v. Fisher’s Estate, supra; Courtney’s Estate v. Lanznar’s Estate, supra; Rhoades v. Robinson’s Estate, supra.

The defendant’s final point is that if defendant’s contentions as to payments were sustained, then claimant’s affidavit was fraudulent, and vitiated the claim. We need not consider whether the failure to give a credit would necessarily prove fraud. The short answer is that defendant did not sustain its defense of payment.

For the reasons stated it is the recommendation of the Commissioner that the judgment should be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C, is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

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


author: DOUGLAS W. GREENE, Special Judge.

text:
    STATE of Missouri ex rel. Mamie JONES, Relator, v. Franklin REAGAN, Judge of the Circuit Court, City of St. Louis and J. Casey Walsh, Judge of the Circuit Court, City of St. Louis, Respondents. Mamie JONES, (Plaintiff) Respondent, v. E. B. KOONCE MORTUARY, INC., (Defendant) Appellant.
    Nos. 31753, 31760.
    St. Louis Court of Appeals. Missouri.
    Sept. 25, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 26, 1964.

      No. 31753:
    Chopin & Boisaubin, Alfred L. Boisau-bin, St. Louis, for relator.
    Samuel A. Goldblatt, St. Louis, for respondents.
    No. 31760:
    Samuel A. Goldblatt, Julius H. Berg, St. Louis, for defendant-appellant.
    Chopin & Boisaubin, Alfred L. Boisau-bin, St. Louis, for plaintiff-respondent.
   DOUGLAS W. GREENE, Special Judge.

The facts in these combined causes are as follows: Mamie Jones, hereinafter called plaintiff, filed her amended petition in tort against E. B. Koonce Mortuary, Inc., hereinafter called defendant, wherein plaintiff prayed for damages alleging that defendant had negligently failed and refused to fulfill its contract for the funeral and burial of plaintiff’s mother. The petition, in brief, alleged that defendant contracted and agreed with plaintiff to provide funeral services for and to bury plaintiff’s mother, but failed to do so, and negligently allowed the body of plaintiff’s mother to be sold to the St. Louis University School of Medicine, where it was located some two weeks later, and that the remains were in such a condition that proper burial and proper funeral services were impossible. Defendant filed an answer on January 15, 1963, and, thereafter, on March 4, 1963, plaintiff served written interrogatories on defendant. Defendant failed to answer same within the allotted time and on April 10, plaintiff filed her motion to compel answers to the interrogatories. On April 19th, the motion was sustained and defendant was given ten additional days to answer, but again failed to do so. On May 3rd, the court entered an order striking defendant’s pleadings and holding defendant in default for failure to answer the interrogatories and ordered default and inquiry against defendant.

On May 15th, defendant filed answers to some of the interrogatories and objections to others, and on the same day, on oral motion of defendant, the trial court set aside the default and inquiry of May 3rd.

The court further ordered defendant to answer interrogatories 5, 9-14, 15, 17, 18 and 19, and to file an amended answer by May 17, 1963. Defendant failed or refused to answer said interrogatories by May 17, 1963, and on May 21st, plaintiff filed a motion asking the court to set aside its order of May 15th, which order set aside the default and inquiry previously granted. On May 22, 1963, defendant, by leave of court, filed an amended answer. On May 23, 1963, plaintiff’s motion to vacate and set aside the court’s order of May 15th, and to enter default and inquiry was sustained and the trial court set the date of June 6th for default and inquiry. Defendant’s attorney was given proper notice of all of the dates set for hearing of the matters listed above and of the actions of the trial court, but did not appear, and gave no reason for not appearing, and for not answering the interrogatories in question.

On June 6th, plaintiff appeared in court and gave testimony, and the court thereupon entered a judgment in favor of plaintiff and against defendant for $10,000 and the costs of the action.

On July 9th, a writ of execution was issued out of the circuit court pursuant to the June 6th judgment returnable August 8, 1963, and on June 11th, defendant’s president turned over to the sheriff of the City of St. Louis defendant’s check in the amount of $10,201.80, representing the amount of the judgment, court costs and sheriff’s fees.

On July 22, 1963, defendant filed a motion to set aside the default judgment of June 6th, and on August 8th, filed a motion to set aside, quash, and stay the execution. On the same day, the court sustained the motion to stay the execution, and stayed the execution for ten days, conditional on defendant filing bond in the sum of $10,000, which bond was filed and approved.

On August 15th, the court further extended its stay order until September 16, 1963, and ordered the sheriff to deposit the money collected with the registry of the court. On September 16th, the court overruled defendant’s motion to set aside default judgment.

On September 20, 1963, plaintiff moved for an order to turn over to plaintiff $10,000 of the money held in the court registry alleging that the time granted by the court in its stay order had expired, and there was no court order granting additional time.

On September 23rd, defendant filed its notice of appeal to the St. Louis Court of Appeals from the order overruling its motion to set aside the default judgment and filed its appeal bond in the sum of $15,000.

On September 24th, defendant filed a motion to set aside the stay of execution bond, and to refund to defendant the $10,000 and costs heretofore mentioned. Plaintiff and defendant’s motions were submitted to the court on September 27th, at which time the trial court (Judge Franklin Reagan) said that he would order the money returned to defendant, but granted plaintiff time to apply to this court for a writ of mandamus.

Plaintiff filed her application for writ of mandamus on October 1, 1963, and on said date, this court issued its alternative writ of mandamus commanding the Honorable Franklin Reagan and Honorable J. Casey Walsh, hereinafter called the trial court to vacate stay of execution orders of August 8th and August 15, 1963, and to enter an order ordering the sum of $10,000 to be paid out of the registry of the circuit court of the City of St. Louis to plaintiff, together with costs and sheriff’s fees or to show cause why they should not do so. Return, answer, and reply were filed in due course.

By stipulation, the mandamus action (Cause 31,753) and the appeal (Cause 31,-760) were consolidated for the purposes of argument and hearing, and will be jointly disposed of in this opinion.

We will first consider defendant’s contentions on appeal. Defendant contends that the action of the trial court in entering the default judgment of June 6, 1963 was void, and also that the record and judgment show an irregularity which is patent upon the record in that defendant had an answer on file which was not stricken at the time the judgment was entered.

These are the only points that defendant could legitimately raise, since defendant’s motion to set aside the judgment was not filed within thirty days after entry of same. Supreme Court Rule 74.32, V.A.M.R., provides that judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof. A motion to vacate does not substitute for an appeal. Further, under the facts of this case, it applies only to irregularities patent upon the face of the record.

Defendant’s sole arguments in this regard are that defendant had an answer on file at the time the trial court entered its judgment, and that the interrogatories which defendant had failed and refused to answer, even though given four opportunities to do so by the trial court, did not go to the merits of the cause, or else asked for information already known to plaintiff, and, therefore, the failure to answer same was not of sufficient importance to justify the trial court to hold defendant in default for such failure to answer same.

Supreme Court Rule 61.01(b), provides that if a party refuses to obey an order of the trial court requiring him to answer interrogatories, “ * * * the court may make such orders in regard to the refusal as are just, and among others the following: * * * (3) “An order striking out pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

In support of its contention that the judgment was void and therefore subject to direct attack, defendant urges that it was deprived of its right to a trial by jury on the issues involved by the action of the trial court in entering a default judgment on repeated refusal of defendant to answer interrogatories, and, therefore, the entry of judgment was unconstitutional. This contention here has no merit as it was not properly preserved for review. Defendant’s brief and argument did not fully cover and develop a constitutional question. If it did, defendant is in the wrong court, as exclusive jurisdiction of such matters lies in the Supreme Court, Art. 5, Sec. 3 of the Constitution of Missouri, 1945, V.A.M.S., but it did not. A mere recitation that the entry of judgment was unconstitutional, or that due process was violated, or that defendant has been denied a preserved right is insufficient to preserve the question on appeal. Sheets v. Thomann, Mo.App., 336 S.W.2d 701, 1. c. 707.

In its only other point, defendant contends that the judgment was irregular, because it had an answer on file, at the time of the court’s entry of judgment. An irregularity for which a judgment may be set aside on motion made within three years is a want of adherence to some prescribed rule or mode of proceeding, consisting either of omitting to do something that is necessary for due and orderly conduct of the litigation, or in doing it in an improper manner or at an unreasonable time. Murray v. United Zinc Smelting Corp., Mo., 263 S.W. 2d 351, 355.

The Supreme Court, by Rule 61.01, has given the trial court authority to enter a default judgment against a party for failure to answer interrogatories, if such order, or entry, is just.

Here, defendant’s attorney, and in fairness, we point out that the attorneys who ably presented this matter in behalf of defendant on appeal, were not the attorneys who had previously represented defendant, was given at least four opportunities to comply with the trial court’s orders directing him to answer interrogatories. Ten of the twenty interrogatories were never answered. After the trial court entered default, defendant’s attorney was notified that the matter would be heard on June 6th. This notice was given on May 23rd. Even then, defendant did not appear.

If the trial court had no power to enter a default under these circumstances, then the rule has no purpose, and the answers to interrogatories could never be compelled. Whether or not defendant had an answer on file is not in point. Under the aggravated circumstances showing defendant’s utter disregard for various orders of court and notice of motions, the trial court exercised its discretionary power to enter judgment by default for defendant’s failure to answer interrogatories.

While there is no case precisely in point in Missouri, the decision of J. G. Jackson Associates v. Mosley, Mo.App., 308 S.W.2d 774, 777, illustrates the power and authority of the trial court to enter judgment where the defendant has filed an answer. In that case, defendant’s attorneys, after filing answer, withdrew and notified defendant the court had set the case for hearing. On that date, when defendant failed to appear, the court made an entry: “ * * * ‘Default and inquiry granted. Cause passed to 24th of January, 1957.’ * * * ” Defendant failed to appear on such date and the cause went to trial before the court sitting without a jury. The court heard extensive evidence and then entered judgment. That is the precise situation here. The same contention was raised by defendant in the Mosley case as defendants raise here, namely, that a judgment taken by default in a suit where defendant had filed an answer showed an irregularity upon the record, and that the entry of a “default” judgment under such circumstances was error. The court pointed out, in the Mosley case, and we point out here, that a judgment rendered, which recites an appearance by plaintiff, failure of defendant to appear at the trial, waiver of jury and submission of the cause upon the pleadings and evidence, is not strictly speaking, a default judgment, where an answer is on file, a previous appearance has been made by defendant, a hearing date has been set, and defendant has been notified of the setting.

Considering the record as a whole, the judgment rendered on June 6, 1963, was a judgment, upon a trial by the court, of the issues raised by the pleadings, and not a default judgment. Brooks v. McCray, Mo. App., 145 S.W.2d 985, 987.

The judgment rendered in this case was regular, and the trial court’s action in overruling defendant’s motion to set the judgment aside was not error.

The motion to quash the execution could have merit only if the' judgment was void for lack of jurisdiction of the parties, or the subject matter. McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 740. No such point was made here. A motion to quash does not lie to collaterally attack alleged errors or defects prior to judgment. Vorhauer v. Sweeney, Mo.App., 217 S.W. 2d 985. Where the execution substantially pursues the judgment, there is no fault in the execution. That is the case here, and since the execution was regular, the trial court had no authority to withhold from plaintiff funds which were -legally collected in her behalf. Del Riccio v. Superior Court, Cal., 251 P.2d 678. When the debt- or’s money was taken from him in a valid execution, it ceased to be his. Assuming that the trial court had any right to issue any stay orders in this cause, they would not affect the property involved here as it was already bound by the execution, Supreme Court Rule 76.61, V.A.M.R., and should have been delivered to plaintiff.

The order of the trial court overruling defendant’s motion to set aside default judgment is affirmed, and this court’s alternative writ of mandamus heretofore issued, should be, and is hereby made peremptory.

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