text:
    J. T. SHACKLETT, Appellant, v. Curtis NAYLOR, Appellee.
    No. 4011.
    Court of Civil Appeals of Texas. Waco.
    June 21, 1962.
    Rehearing Denied July 19, 1962.

      Burt Barr, Dallas, Jesse Rickman, Terrell, Jack Morgan, Kaufman, for appellant.
    Herbert Hooks, Dallas, Fulmer, Fairchild & Badders, Nacogdoches, for appellee.
   McDONALD, Chief Justice.

This is a personal injury action arising from defendant’s alleged negligence in operating a “Stock Car” race track. Plaintiff Naylor brought suit for damages against defendant Shacklett, for injuries he received when he attended a “Stock Car” race, as a paying customer, at the “Thunderbird Speedway” race track, operated by defendant. Plaintiff alleged that while watching a race from the stands provided by defendant, a racing car, without warning, left the track, plunged through the barrier, and ran over him, causing severe, permanent and painful injuries.

Trial was to a jury which found that defendant failed to have a barrier of reasonably sufficient strength to protect the spectators; that such failure was negligence; and a proximate cause of plaintiff’s injuries. Plaintiff was acquitted of contributory negligence, and the occurrence was found not to be the result of an unavoidable accident. Plaintiff’s damages for diminished earning capacity; physical pain, past and future; and mental anguish, past and future, were fixed at $40,000.; and plaintiff’s future medical bills were fixed at $10,000.

The Trial Court rendered judgment on the verdict, for $50,000. for plaintiff.

Defendant appeals, contending:

1) The Trial Court erred in failing to quash the jury panel.

2) The Trial Court erred in failing to grant defendant’s motion for instructed verdict.

3 & 4) The verdict is against the great weight and preponderance of the evidence; and is grossly excessive.

Defendant’s 1st contention is that the Trial Court erred in refusing to quash the jury panel. The Jury Commission which selected the panel for the July 1961 term was appointed by the District Judge on 16 June 1961 and performed their work on that date. The July 1961 term, during which the instant case was tried, commenced the 1st Monday in July. Defendant contends that selection of the jury by the Jury Commission in June, for the July Term is violative of Article 2104 Vernon’s Ann.Tex.St., which provides that: “The district court of each county shall at each term thereof appoint jury commissioners * * * ” We overrule the contention for the reasons hereafter stated. The statute is directory and not mandatory. Harris v. State, 123 Tex.Cr.R. 161, 58 S.W.2d 513. The appointment of a jury commission near the end of a term for the purpose of selecting jurors for the next term is not violative of Article 2104. Columbo v. State, 65 Tex.Cr.R. 608, 145 S.W. 910. As a general rule the selection of Jury Commissioners by the District Court is not subject to review, and panels selected by Jury Commissioners are not subj ect to challenge. King v. Moberley, Tex.Civ.App. (n. w. h.), 301 S.W.2d 202. Finally, the defendant has not shown where the error, if any, caused the rendition of an improper judgment in the case. Rule 434 Texas Rules of Civil Procedure.

Defendant contends that the jury should have been quashed because “/. T. Snowden,” was appointed as a Jury Commissioner, and “/. T. Snowden, Jr.” served as such Jury Commissioner. The record reflects that J. T. Snowden, Jr. received the notice of appointment, and served as Jury Commissioner. There is no showing that he was not the person the District Judge appointed. Moreover, no harm is shown. Rule 434, T.R.C.P. The contention is overruled.

Defendant further contends the jury panel should have been quashed because put of a jury panel of 40, some 20 were excused without a written request, and the Sheriff “picked up” 18 talesmen to fill the panel. Defendant urges the Court was without authority to excuse the jurors without an affidavit from each claiming a statutory exemption. There is no showing whether the Judge excused the 20 who were absent, or whether they merely failed to appear. Assuming the Judge excused them, it is our view the action complained of did not amount to such denial of defendant’s rights as to cause the rendition of an improper judgment. Rule 434, T.R.C.P.

Defendant’s 2nd contention is that the Trial Court erred in not granting defendant’s motion for instructed verdict. Defendant urges that plaintiff knew they were having Stock Car races; that he went there to see Stock Car races; that he picked his own seat; that he knew cars collided with each other; and that he voluntarily exposed himself to a danger which he realized or should have realized and appreciated; and for which reason plaintiff cannot recover as a matter of law. Defendant cites Knebel v. Jones, Tex.Civ.App. (n. r. e.), 266 S.W.2d 470, which is a case denying recovery to a spectator injured by a ball while sitting in the stands at a baseball game.

We reject the contention. Plaintiff was injured by a car climbing the barrier and running over him at a Stock Car race. The operators of the track had surrounded it with a dirt embankment some 3 feet in height; backed up by cross ties and a cyclone type fence; to protect the spectators. The record reflects that the car which injured plaintiff climbed the embankment, breaking a rotten cross tie, and went over the fence, striking plaintiff. The jury found that the barrier was of insufficient strength to protect spectators, and that such was negligence proximately causing plaintiff’s injuries.

The promoter or proprietor of an automobile race owes the duty of ordinary care to protect spectators, lawfully present, from injury. This includes the provision of suitable barriers to protect spectators from coming in dangerous proximity to the race track. Kuemmel v. Vradenburg, Tex.Civ.App. (n. r. e.) 239 S.W.2d 869; Blashfield, Cyclopedia of Automobile Practice, Sec. 763. The contention is overruled.

Defendant’s 4th and 5th contentions are that the verdict is against the great weight and preponderance of the evidence; and that the verdict is excessive.

Plaintiff was 61 years of age at the time of his injury, and in good health. He was totally disabled by the accident; he has suffered severe and constant pain in his legs, back and head; his legs were broken and were in a cast for over 5 months; medical evidence was to the effect his condition in all probability was permanent and that he was totally disabled and will be confined to a wheel chair the rest of his life.

Plaintiff testified as to loss of earnings of some $150. per month. Evidence was to the effect that future medical service and treatment would be somewhat higher for the first year, but after that time it would run $600. to $800. per year. We think the verdict not against the great weight and preponderance of the evidence and not excessive. The contentions are overruled.

The judgment of the Trial Court is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    RED BALL MOTOR FREIGHT, INC., et al., Appellants, v. The SOUTHERN CONFERENCE OF TEAMSTERS, Appellee.
    No. 4005.
    Court of Civil Appeals of Texas. Waco.
    June 7, 1962.

      Allen P. Schoolfield, Jr., Dallas, Eugene D. Biddle, Ft. Worth, Charles D. Mathews, Dallas, for appellants.
    Mullinax, Wells, Morris & Mauzy, L. N. D. Wells, Jr., Dallas, for appellee.
   McDONALD, Chief Justice.

The Southern Conference of Teamsters, as plaintiffs, brought this suit to declare null and void a certain collective bargaining agreement entered into by the defendants Red Ball Motor Freight, Inc., and the Union of Transportation Employees, Inc. The Trial Court granted the relief sought. Both defendants appealed and the cause is pending for disposition. On 27 April 1962 appellee (plaintiff) filed motion to dismiss appellants’ (defendants’) appeal on the ground that the appeal was moot, inasmuch as the collective bargaining agreement declared void by the Trial Court had, during pendency of the appeal, expired by its own terms, and a new collective bargaining agreement had been entered into by defendants which is not subject to the complaints of plaintiff, as was the original agreement.

Thereafter, both defendants filed motions to dismiss the entire case rather than dismissing the appeal only.

When a case has become moot, the proper order to be entered by the appellate court is one dismissing the case, and not one dismissing the appeal. To dismiss the appeal would leave undisturbed the judgment of the lower court, and thereby in effect, affirm same without according to the appealing parties a hearing on the merits of their appeal. International Ass’n. of Machinists Local Union No. 1488 et al. v. Federal Ass’n of Accessory Workers et al., 133 Tex. 624, 130 S.W.2d 282, 283.

Accordingly, defendants’ motions to dismiss this cause are granted. Costs are taxed l/z each against appellee and the two appellants.

Dismissed.


author: COLEMAN, Justice.

text:
    CONSOLIDATED FURNITURE COMPANY, Inc., et al., Appellants, v. Marion Lee KELLY, Appellee.
    No. 13933.
    Court of Civil Appeals of Texas. Houston.
    June 7, 1962.
    Rehearing Denied July 12, 1962.

      The Kempers, Houston, John D. Richardson, Houston, of counsel, for appellants.
    Richard H. Powell, Paul A. Tucker, Houston, for appellee.
   COLEMAN, Justice.

This is a suit to recover damages for personal injuries sustained in an automobile collision. The cause was submitted to a jury on special issues, and the court rendered a judgment for the plaintiff based on the jury verdict.

Appellee has filed a motion to dismiss this appeal for the reason that neither the su-persedeas bond nor the transcript was filed within the time required by Rules 356 and 386, Texas Rules of Civil Procedure.

The judgment was rendered and signed on June 12, 1961. Defendants’ original motion for new trial was filed June 20, 1961. It is appellee’s contention that this motion for new trial was overruled by operation of law on August 4, 1961. The bond was filed September 8, 1961, and the transcript October 23, 1961. Appellants filed an amended motion for new trial on July 10, 1961, which was within 20 days after filing their original motion for new trial and within 30 days after the judgment was rendered and entered. The amended motion for new trial does not recite that it was filed with permission of the trial court. Evidence has been presented to this Court in the form of affidavits and otherwise pertaining to the question of our jurisdiction. It appears that leave of court was not sought or granted. The motion was never presented to the trial court, and no order granting or denying the motion was entered. If this amended motion can be considered, it was overruled by operation of law August 24, 1961, and the bond and transcript were filed within the time required by the rules.

Rule 329-b provides that an original motion for new trial may be amended by leave of court. It further provides that it shall be the duty of the proponent to present the same to the court within 30 days after the date of filing. We think the purpose of these provisions of the Rule was to give the trial court an opportunity to correct any errors pointed out to him, if they can be corrected. In the event the errors are such that the trial court cannot correct them, then it seems that it was intended that the trial court should have the opportunity to grant a new trial, thereby expediting the final disposition of the action at less expense to the litigants. If an amended motion for new trial may be filed without securing leave of court, and thereafter such motion, not having been presented to the court and no ruling on the motion having been secured, is considered overruled by operation of law after 45 days, those important benefits to be secured Dy reason of the rule discussed above cannot be realized.

Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031, a carefully considered opinion adopted by the Supreme Court of Texas, held:

“Subdivision 29 in exact and particular language defines the conditions upon which a motion for new trial may be amended. They are: First, that leave of court must be obtained; second, that it can be amended only before it is acted upon; and, third, that the amendment must be made within 20 days after the filing of the motion. Only on these terms is amendment permitted.”

This holding was re-examined by the Supreme Court in W. C. Turnbow Petroleum Corporation v. Fulton, 145 Tex. 56, 194 S.W.2d 256. In an opinion by Justice Smed-ley, who also wrote the Dallas Storage & Warehouse case, the Court pointed out that the question of leave to amend was not involved in the Dallas Storage & Warehouse case, and held:

“In view of the authorities last cited, it is our opinion that the amended motion for new trial is not to be treated as a nullity on account of failure first to obtain leave to file it, and that the effect of the court’s order overruling petitioner’s motion for new trial was to determine that petitioner was entitled to file the amended motion, or thus, after the motion had been filed, to give permission for its filing. * * * There remains only the irregularity that the transcript does not show that petitioner obtained, before or at the time when the amended motion was filed, leave of court to file it. This irregularity, or failure to comply with the rules, we think was cured by the trial court’s action in entertaining the motion and overruling it.”

Rule 329-b, Sec. 2, provides: “An original motion for new trial filed within said ten (10) day period may be amended by leave of court. * * * ” If we hold that an amended motion filed without leave of court, where no circumstances appear from which leave of court can be implied, is effective as a basis for appeal, we are ■eliminating that requirement from the rule.

In the recent case of Holt v. Purviance, 347 S.W.2d 321, writ ref., n. r. e., the Court of Civil Appeals overruled appellee’s motion to dismiss based on a contention that appellant’s appeal bond was not timely filed because there was nothing in the record to show that appellant obtained leave of court before filing his amended motion for new trial. The amended motion was not called to the attention of the trial court. It appears that after the case had been dismissed for the reason that no final judgment had been entered, the trial court entered an order nunc pro tunc reciting that certain parties, who were not mentioned in the judgment from which the appeal was taken, had been previously dismissed from the case. The Court of Civil Appeals then sustained a motion for rehearing and set aside the judgment of dismissal and proceeded to determine the case on its merits. It appears, therefore, that the Court of Civil Appeals had jurisdiction of the case since the time for preparing the appeal begins to run from the date of the nunc pro tunc order. Murphy v. Boyt, 140 Tex. 382, 168 S.W.2d 631; Panhandle Construction Company v. Lindsey, 123 Tex. 613, 72 S. W.2d 1068; Sigler v. Realty Bond and Mortgage Co., 135 Tex. 76, 138 S.W.2d 537. The court followed the holdings of Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470 and Heavy Haulers, Inc. v. Nicholson, Tex.Civ.App., 277 S.W.2d 250. The Sessions case held that the summary judgment and the nunc pro tunc decree considered together, in light of the recitations contained therein, constituted one final judgment and, since a notice of appeal was contained in the summary judgment, no notice of appeal was necessary after the nunc pro tunc decree. The Heavy Haulers, Inc. case held:

“Such nunc pro tunc judgment evidences a final judgment of the trial court, and this Court accordingly sets aside its order of dismissal heretofore entered, and within the provisions of Rule 306c, T.R.C.P. considers the appeal heretofore perfected as an appeal from the judgment as reflected by such nunc pro tunc decree.” (emphasis added)

Rule 306c, T.R.C.P., provides:

“No motion for new trial or appeal bond or affidavit in lieu thereof shall be held ineffective because prematurely filed, but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails; and every such appeal bond or affidavit shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such a motion is filed.”

The opinion of the court in the Holt case reflects that the point of error on which the judgment of the trial court was reversed was presented in appellant’s original motion for new trial. We conclude, therefore, that the discussion in the Holt case, of the necessity for obtaining leave of court before filing an amended motion for new trial, was not necessary to the decision in that case.

Since appellants’ bond was filed more than 30 days from the date their original motion for new trial was overruled by operation of law, this Court has no jurisdiction of this appeal and it must be dismissed.

Appeal dismissed for want of jurisdic tion.


author: HUNTER, Presiding Judge. PER CURIAM.

text:
    Anna E. POWERS, Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Appellant.
    No. 23619.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.
    Rehearing Denied July 2, 1962.
    Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for appellant.
    David R. Clevenger, William D. Lay, Platte City, Preston Forsee, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an appeal by the State Department of Public Health and Welfare from a judgment of the Circuit Court of Platte County, Missouri, holding that the decision of appellant’s director was arbitrary and unreasonable in finding that respondent, Mrs. Anna E. Powers, owned real property not furnishing shelter for her which had a current market value of $750.00 or more and hence was properly removed from the old age assistance rolls.

The pertinent evidence essentially is neither controverted nor conflicting. Anna E. Powers is seventy years of age and an unemployed widow. Prior to 1948 she inherited from her mother a tract of land near Parkville, Missouri, containing 12 acres upon which was located the old family home. At the time of the hearing this house in which she lived was sixty-eight years old, dilapidated and without plumbing, running water or modern conveniences.

In 1948, Mrs. Powers’ daughter; Dorothy, became engaged to Lloyd Murray. Dorothy had been living with her mother who wanted her to continue to live near her after the marriage so that they could take care of her, take her to the grocery store, to church and do other needed things for her.

Mrs. Powers testified that upon her daughter’s marriage to Mr. Murray she made them a gift of one acre (“Murray Acre”) of the mentioned 12 acres on their promise that they would build a house on it, near her home. It is undisputed that in 1948 the Murrays immediately took possession of this one acre and built a house on it with money that Mr. Murray borrowed from his father who mortgaged his own home to obtain it, supplemented some by money Lloyd Murray had. Mrs. Powers contributed no money or materials for this house and disclaimed any interest in it. The Murray home on the one acre tract is located about 200 feet from Mrs. Powers’ home.

In. 1949, about seven years before Mrs. Powers applied for old age assistance, she employed Mr. Willis, the Platte County surveyor, to survey the boundaries of the “Murray Acre”. This survey is in evidence.

In 1955, upon attaining the required age of 65, Mrs. Powers applied for old age assistance. She testified that at that time she told Mrs. Younger, of the county welfare office, that she did not own the “Murray Acre” but that Lloyd and Dorothy Murray owned it. She stated she also told this to a Mrs. Listrom of that office.

In November, 1959, Lloyd tried to borrow some money on the “Murray Acre” house, and was unable to do so because Mrs. Powers had not given him a deed to the “Murray Acre”. Lloyd and Dorothy then requested Mrs. Powers to furnish them with a deed to it and she did so. This deed was recorded on December 14, 1959.

This deed came to the attention of the county welfare office and on January 13, 1960, the county welfare director had Mrs. Powers in and discussed with her, her daughter, and her attorney, the effect of the deed on her old age assistance case. Mrs. Powers, her daughter, and her attorney, testified that the county director told them at that discussion that before Mrs. Powers could again be eligible for old age assistance the property would have to be transferred back to Mrs. Powers so she would be in the same status as prior to the transfer. The county director denied that this was what she told them and stated that what she said to them was, “ * * * that before she (Mrs Powers) could ever be eligible again there would either be a period time consisting of five years, and I (county director) explained to you (Mrs. Power’s attorney) she would have to remain in the same status as she was in prior to the transfer, which would in turn mean that the property would have to be transferred back to her. However, when that was done we discussed that the property would become an available resource.”

Shortly thereafter and on February 9, 1960, the Murrays executed a deed on the “Murray Acre” to Mrs. Powers. After that deed was recorded the county director deemed the “Murray Acre” to be an available resource to Mrs. Powers which precluded her from eligibility to the old age assistance rolls. She was removed from the rolls on April 26, 1960, for this reason.

Appellant introduced into evidence at the hearing on December 13, 1960, its rule and regulation No. 13 which provides in part that when an applicant or recipient owns real estate which is not furnishing shelter and its current market value is $750 or more if the applicant or recipient is single, such property shall be considered as a resource which will render such person ineligible for public assistance. Additionally, it was stipulated and agreed at the hearing by appellant’s referee and respondent that the house on the one acre tract, “known as the Murray house, was paid for by the Murrays, ind we can also stipulate Mrs. Powers has an available resource consisting of cash value of insurance of $434.85.” (Emphasis ours.) It is also agreed by the parties that the one acre tract with the house on it was worth over $750.

Appellant’s position and contention as expressed and given by appellant’s state director as the controlling part of his decision and relied upon in appellant’s brief is that “Claimant in 1948 attempted a gift of the property but the gift was ineffective except as between the parties and third parties with knowledge because there was no legal transfer. * * * The Division of Welfare ascertains who are the record title owners of real estate in determining eligibility for public assistance, and neither the Division of Welfare nor the Department of Public Health and Welfare does not have equity jurisdiction to consider or adjudicate contractual rights or to declare title to real estate, and, therefore, we cannot determine that real estate belongs to someone not the legal record title holder. * * * To determine title or ownership of land such question must be settled by a court of competent jurisdiction in a direct proceeding to determine such title. Considering the above * * * it (“Murray Acre” with house on it) must be considered as a resource and, therefore, claimant is ineligible to receive Old Age Assistance benefits at this time.”

In his oral argument before this court appellant’s counsel advised the court that “it is the policy of the director not to even consider evidence of any equitable interest but to consider only record title” in determining a claimant’s resources which affect his eligibility for public assistance.

On an appeal involving the decision of the director of public health and welfare the authority of this court, as that of the circuit court, is limited to a determination from the record of the hearing whether a fair hearing was granted and whether the decision made by the director was arbitrary and unreasonable. Section 208.100(4), (5) RSMo. 1959, V.A.M.S.; Ellis v. State Department of Public Health and Welfare, 365 Mo.Sup. 614, 285 S.W.2d 634; Collins v. Division of Welfare, 364 Mo.Sup. 1032, 270 S.W.2d 817.

The division of welfare through its director by statutory authority acts in a quasi-judicial capacity in conducting hearings and determining eligibility for public assistance. Section 208.010 RSMo. 1959, V.A.M.S. provides in part, “In determining the eligibility of an applicant for public assistance under this law, it shall be the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the applicant, including his earning capacity, income and resources, from whatever source received, and if from all the facts and circumstances the applicant is not found to be in need, assistance shall be denied.” (Emphasis ours.)

Section 208.080(3) RSMo. 1959, V.A.M.S. provides, “The director of the department of public health and welfare shall give * * * a fair hearing * * *. Every applicant * * * shall be entitled to be present, in person and by attorney, at the hearing, and shall be entitled to introduce into the record at said hearing any and all evidence, hy witnesses or otherwise, pertinent to such applicant’s eligibility, and all such evidence shall be taken down, preserved and shall become a part of the applicant’s record in said case, and upon the record so made the director of the department of public health and welfare shall determine all questions presented by the appeal.” (Emphasis ours.)

Section 208.100 RSMo. 1959, V.A.M.S. provides in part, that on appeal, “If the court shall decide for any reason that a fair hearing and determination of the applicant’s eligibility and rights under this law was not granted the individual by said director, or that his decision was arbitrary and unreasonable, the court in such event shall remand the proceedings for redeter-mination of the issues by said director.”

We have concluded that in the light of these statutes the director has failed to grant Mrs. Powers a fair hearing. The determinative question in this case conced-edly is whether Mrs. Powers has real estate assets (other than the home in which she lives) exceeding $750 in value. If so, she is not eligible. If not, she is eligible. This in turn requires the director to decide whether in actual fact she or the Murrays own the “Murray Acre” and the house on it, for it is admitted that the “Murray Acre” without the house is of no consequential value. As appellant stated in its brief the controlling question is “if the house built by the Murrays on respondents’ land now belongs to the respondent then respondent does own real estate which renders her ineligible for public assistance under rule and regulation No. 13. On the other hand,, if the Murrays are found to be the owners-of the house separate and apart from the land on which it is situated (or if respondent does not own the land or the house) then respondent does not own real estate which would render her ineligible under Rule and Regulation No. 13.”

In making this determination we conceive it to be the duty of the director “to-consider and take into account all facts and circumstances” pertinent to the applicant’s eligibility and to decide all questions inherent in determining the applicant’s eligibility. We think the mentioned statutes call' for no less, and that any other approach to the decision the director must make would be unrealistic, would permit uncontemplated injustices to occur, and not be what the legislature intended by these statutes.

In so saying we fully recognize the right of the director to judge the credibility of any witness, and after consideration, to disbelieve the testimony of such witness. The right of the director to determine credibility is not involved in this case for the director has made it clear that he did not undertake to consider or to pass on the credibility of all the evidence pertaining to ownership of the “Murray Acre” but rather restricted his consideration to who was the “record title holder” as shown by the county recorder’s records, and that he refused to consider any other evidence for the assigned reason that a consideration of such other evidence would involve the application of equitable principles and equitable rules.

Our old age benefit statutes prescribe many eligibility requirements that must be met in order for a senior citizen to be entitled either to get on, or to remain on, the eligible list. If in determining whether such requirements have been met the director in blanket manner refuses to consider and to apply established principles of law because he deems them to involve equitable considerations and refuses to consider otherwise pertinent evidence for the same reason, then we are constrained to rule that a fair hearing has not been accorded. A fair hearing contemplates more than a mere going through the ritual of permitting a claimant to be present with counsel at the hearing and to be accorded the opportunity of presenting evidence. According a fair hearing includes a proper consideration of all of the pertinent evidence rather than a refusal to consider any evidence that might call for the application of established equitable principles and rules.

For literally centuries the courts have applied equitable principles to avoid the often overly harsh,' technical common law. Old distinctions between equitable and legal forms of action long ago were abolished in favor of a single form of action permitting the courts to reach a just result by the application of both legal or equitable rules as necessary to fairly decide all the questions presented by the facts. It is recognized that in no other manner could justice in the particular case be obtained. It is just as important that justice be obtained in an administrative proceeding as in a court. Our legislature is fully aware of all this. In establishing appellant department and giving it quasi-judicial authority to conduct hearings to determine eligibility for old age assistance it nowhere has indicated that appellant department in dealing with the poor of this state should limit such hearings by refusing to look to or consider any facts that might call for the application of established equitable principles of jurisprudence. Appellant is unable to cite any authority to sustain such contention as it makes, and we deem it to be without merit. Cf. Ames v. Department of Labor & Industries, 176 Wash. 509, 30 P.2d 239, 91 A.L.R. 1392.

Appellant suggests if evidence other than that of “record title” must be considered “it would make it almost impossible to honestly and effectively administer the program.” We think the right of the director to weigh the evidence and to determine the credibility of the witnesses is an effective safeguard against possible fraud or dishonesty, and none such has been suggested in this case.

It is noteworthy that after appellant’s director ruled against Mrs. Powers she brought suit in the circuit court against the Murrays to have the mentioned deed of December, 1959, from the Murrays to her cancelled and voided. Apparently on the evidence she presented here and which evidence the director refused to consider she obtained a judgment setting aside and voiding that deed. Over objection the circuit judge permitted that judgment to be introduced in evidence at the circuit court hearing and to be made a part of the transcript on appeal. Section 208.100(4) RSMo. 1959, V.A.M.S. provides that the appeal to the circuit court shall be tried and the cause determined upon the record of the proceedings had before and certified by the director. There is no provision for the taking of additional evidence before the circuit court. It was error for the trial court to admit or consider any evidence in the course of the submission on appeal other than the record as certified by the director. Johns v. State Social Security Commission, 235 Mo.App. 150, 143 S.W.2d 161.

On our review we have not considered this evidence not contained in the record of the proceedings certified by the director. On a redetermination of the issues on the remand of this cause to the director respondent will have ample opportunity to offer such evidence and to have it made a part of the transcript certified by the director in the event of further appeal. We do not now pass on the possible effect of such evidence.

For the reasons stated, the judgment of the circuit court reversing this cause and remanding the proceedings for redetermination of the issues by the director is affirmed.

All concur.

ON MOTION FOR REHEARING:

PER CURIAM.

In its motion for rehearing appellant misconceives the effect of our opinion, contending it requires appellant in conducting hearings in public assistance cases to exercise equity jurisdiction belonging only to a court by establishing and enforcing a trust or by determining contractual or property rights as betiveen individuals.

The legislature by statute, Section 208.010 RSMo. 1959, V.A.M.S., has clearly stated what appellant is to do, i. e., determine “the eligibility of a claimant for public assistance”, and states that “In determining the eligibility of a claimant for public assistance under this law, it shall be the duty of the division of welfare to consider and take into account all facts and circumstances surrounding the claimant, including his living conditions, earning capacity, income and resources * *

Of course appellant cannot undertake to enter a judgment or decree as a court, determining who owns a piece of land, which judgment or decree would be binding on not only the claimant for public assistance but on others who might claim an interest in the land. This is true whether the issue of title or “resources” turns on evidence of “record title”, legal rules or equitable rules.

Yet appellant can and daily does determine as between appellant and a claimant the question of his eligibility for public assistance. In making such a determination appellant does have to make incidental determinations concerning a claimant’s “earning capacity, income and resources” in order to determine the ultimate fact of his eligibility or lack of eligibility for public assistance. These incidental determinations of resources and income have no legal effect on anyone other than the claimant in his claim for p-ublic assistance, and then only as an incidental determination or consideration of “facts and circumstances surrounding claimant” pertinent to his economic status.

As the statute declares, appellant must “consider and take into account all facts and circumstances”, and not deliberately limit itself to a consideration of only those facts or circumstances which it believes involve the application of “legal rules” as contrasted with “equitable rules”. If a claimant did not have “legal” or “record” title but was the beneficial owner of valuable property his beneficial interest is a pertinent fact and circumstance bearing on his eligibility. As stated in 81 C.J.S. Social Security and Public Welfare § 18, page 44: “ * * * the word ‘resources’ has been held to mean any property which the applicant owns legally or beneficially(Emphasis ours.) Thus equitable rules are applied in determining a claimant is not eligible because he is the beneficial owner of resources in excess of the minimum permitted. Equitable rules are equally applicable in determining a claimant is eligible for public assistance. See, 42 Am.Jur., Public Administrative Law, Section 58, page 365; Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 137 A.L.R. 740; Ames v. Dept. of Labor and Industries, 176 Wash. 509, 30 P.2d 231, 91 A.L.R. 1392.

Appellant also contends this applicant (and presumably all applicants for public assistance with a similar problem) should first engage in litigation in the circuit courts to establish any pertinent fact concerning his economic status that might involve “equitable” considerations and to there disavow and disclaim any interest in income or resources that an application of purely legal as opposed to equitable rules might show belong to him, including obtaining a court order setting aside any instrument of record such as that here involved.

We do not find anything in the statute suggesting or requiring that a claimant for public assistance, presumably a poor person in advanced years, must first go to the expense and delay involved in employing legal counsel and engaging in litigation, requiring possibly more than one lawsuit, to establish “facts and circumstances surrounding the applicant, including his earning capacity, income and resources” (his economic situation). On the contrary the legislature throughout the entire act has evidenced regard for our elderly poor and obviously intended to establish a complete, inexpensive, and reasonably quick procedure for determining an applicant’s eligibility for public assistance. This it did when it gave appellant authority to hear and determine from all the facts the question of eligibility for public assistance. It amply protected the public’s interest by also giving appellant the right to weigh the evidence and to determine the credibility of witnesses.

      . Ten witnesses appeared at the trial prepared to testify that Mrs. Powers gave the Murrays the one aere — called the “Murray Acre”. That the Murrays paid for the construction of the house, and that Mrs. Powers did not make any financial contribution toward the construction of tile house. After hearing the testimony of two of them the appellant’s referee declined to receive the testimony of the other eight on the ground such testimony would be cumulative.

      . This regulation, appellant says, is authorized by Section 208.010 RSMo 1959, V.A.M.S. providing that benefits shall not be payable to a person who “ * * ⅜ has earning capacity, income or resources * * ⅜ sufiieient to meet his needs for a reasonable subsistence compatible with decency and health.”


author: SPERRY, Commissioner.

text:
    Nellie Bonebright QUINT, Respondent, v. Victor H. QUINT et al., Appellants.
    No. 23421.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      P. M. Marr, Milan, Edward R. Jayne, Kirksville, for appellants.
    L. F. Cottey, Lancaster, Clare Magee, Unionville, for respondent.
   SPERRY, Commissioner.

Plaintiff, Nellie Bonebright Quint, widow of Walter H. Quint, deceased, instituted this suit whereby she sought a decree in equity adjudging void ab initio an antenuptial contract entered into between her and her deceased husband. Defendants are the lineal descendants of deceased and are the executor of his will and the sole beneficiaries under it, except for a small bequest to plaintiff. A decree was entered for plaintiff, adjudging the antenuptial contract to be void as of the date of its execution and that it did not then, and does not now, bar any rights that plaintiff might have or assert as a widow, as against the estate of deceased, as provided for by the statutes of Missouri. Defendants have appealed.

The essential facts necessary to our decision are not in dispute.

Plaintiff and deceased were first married and divorced sometime prior to October 14, 1952. Both had been previously married and each had children by such previous marriages. Prior to the legal dissolution of that marriage they entered into a property settlement whereby deceased deeded to plaintiff certain real estate and she, in consideration thereof, released all of her interest in his real estate and personal property.

On October 14, 1952, the parties again were married but, in contemplation of that marriage and before it was solemnized, they entered into an antenuptial contract. Therein it was agreed that plaintiff, upon the death of Mr. Quint, should have as her absolute property the household goods then in his home, if not disposed of prior to that time. It was further agreed that, upon the death of either, the other would not make any claim upon his or her estate; that each should continue to own, manage, mortgage or sell whatever real estate and personal property they might have as of the date of and during the marriage relationship, free from any claim on the part of the other; and that the marriage should not affect their respective property rights, or those of their respective children, after the death of either.

They lived together as husband and wife until April 12, 1960, when Mr. Quint died. He left a will which was duly admitted to probate. By its terms deceased’s descendants received all of his property except the household goods, appraised and of the value of $577.00, which plaintiff received. At the time of his death he owned a farm, appraised and of the value of $25,000.00, and other personal property of the value of $5,357.00. His debts, including expenses of last illness and funeral, totalled $1828.61.

Plaintiff’s chief contention here is that the antenuptial contract was and is void because of the provisions of Section 469.160, RSMo 1949, V.A.M.S. c. 475, Appendix, which was in effect on the date the contract was made and the marriage was consummated. That statute provided as follows:

“469.160. Marriage contract, when a bar to dower. — If any woman prior to and in contemplation of marriage, shall, in agreement or marriage contract with her intended husband, or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid, and a bar to dower in the estate of her husband. * * * ” (Italics ours).

That section appears in previous revisions of our statutes in its present form, as follows: Sec. 5, p. 333, R.S.1825; Sec. 17, p. 521, G.S.1865; Sec. 2201, 1879; Sec. 4529, 1889; Sec. 2950, 1899; Sec. 362, 1909; Sec. 330, 1919; Sec. 334, 1929; Sec. 334, 1939. Jointures were first permitted as substitutes for dower in England by 27 Henry VIII. King v. King, 184 Mo. 99, 82 S.W. 101, 103. When the above section came into our law, all personalty owned by a woman vested absolutely, as a gift, in her husband; and women were otherwise economically handicapped. Logan v. Phillips, 18 Mo. 22, 28; Roberts v. Walker, 82 Mo. 200, 208. But it continued in the same form for many decades after the law in respect of women’s property rights, and their economic condition, had changed. It became an anachronism in the law but it could not be removed except by legislative action. It was repealed and replaced by section 247, Laws 1955, p. 385, now Sec. 474.120 RSMo 1959, V.A.M.S., which should be considered together with Sec. 474.220, RSMo 1959, V.A.M.S.

Comparing the new section with the former, it is clear that substantial and material changes have been made. Whether or not such changes are sufficient in view of modern social conditions is a legislative matter, not a judicial one. However, we are not here concerned with the statutory law as it now appears, because the statute as it appeared in 1952 is the law that governs the contract then made. 17 C.J.S. Contracts § 22, p. 355; Logan v. Phillips, supra, 18 Mo. 28; Roberts v. Walker, supra, 82 Mo. 208.

In Broyles v. Magee, Mo.App., 71 S.W.2d (St. Louis) 149, 152 in speaking of an ante-nuptial contract, it was said:

“It has been held that such an agreement, to be effective as a bar to a widow’s dower, must possess the attributes designated in the section of the statute which we have set out above. (The section here considered) Reger v. Reger, 316 Mo. 1310, 293 S.W. 414.”

By reference to the italicized portion of the quoted statute, it will be seen that the woman, in a valid antenuptial contract, must receive an estate either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower. In Moran v. Stewart, 173 Mo. 207, 73 S.W. (Mo.) 177, 179, it was said: “Jointure is defined by Sir Edward Coke to be ‘a competent livelihood of freehold for the wife of lands or tenements, etc., to take effect presently or in possession or profit after the decease of her husband for the life of the wife at least.’ Coke on Litt. L. l. c. 5, §§ 41, 36 b.

Measured by that definition, the contract herein fails. By it no estate, real or personal, was conveyed to the wife. True, she was to receive some household goods upon the husband’s death, if not previously disposed of. Whether or not personalty of such small value would have been reasonably adequate is not material. By the contract, she was only to receive that property conditionally. Such a provision was not in compliance with the terms of the statute. It was held, in the last above mentioned case, that a provision whereby the wife should have the use and benefit of 106 acres of land for her life, or as long as she remained a widow, was insufficient.

In Mowser v. Mowser, 87 Mo. 437, 440—441, the court said: “It is against public policy to allow a man, by an agreement before marriage, which does not secure to the wife a provision for her support during life after his death, to bar her right to dower. The statutes sanction no such agreement.” (Italics ours). In Young v. Sangster, 322 Mo. 802, 16 S.W.2d 92, 95, it was said: “It may be conceded that the contract, as written, was not sufficient to bar his wife’s claim of dower in his estate, because, under the contract, she received no estate from him to take effect after his death, * * In Brandon v. Dawson, 51 Mo.App. 237, 244, it was held that an agreement between parties in contemplation of marriage whereby each agreed to make no claim against the property of the one who should die first, is void as to the wife, there being no provision for her after the death of the husband. In Coulter v. Lyda, 102 Mo.App. 401, 76 S.W. (Kansas City) 720, 722, it was held that an antenuptial contract which conveys to a woman nothing that she did not already have, (such as the one here considered) will not bar her statutory rights. See also King v. King, supra.

However, defendants contend that even if the antenuptial contract here did not measure up to the requirements of section 474.120, V.A.M.S., so as to bar the marital rights of plaintiff, still since the parties had acted under it and treated it as valid and plaintiff had, during the lifetime of deceased, dealt with her property as she saw fit, had required deceased to execute instruments in accordance with the contract, and had availed herself of and accepted all of the benefits of the contract, she is now es-topped to claim that it is invalid; that she may not retain the benefits of the contract and the benefits zvhich would have been available to her without the contract.

In support of this contention defendants cite two cases. In Davis v. Cook, 337 Mo. 33, 85 S.W.2d 17, the court considered an antenuptial contract similar to the one here involved. It was held that the contract was not binding on the deceased wife but that since she had, during her lifetime, complied with its terms to the benefit of the surviving husband, he was estopped to claim benefits under the statute as against the provisions of the antenuptial contract.

The court rested its decision in that case (85 S.W.2d 1. c. 20) on Young v. Sangster, 322 Mo. 802, 16 S.W.2d 92, cited by defendants. The court held, in that case (16 S.W.2d 1. c. 95), that the antenuptial contract there involved was not binding on the wife “because, under the contract, she received no estate from him to take effect after his death, ■ * * *. But such a contract may become valid and binding upon the parties thereto, for all intents and purposes, by reason of their subsequent acts in connection therewith, * * In that case both parties dealt with their property independently of the other throughout the marriage. It was held that plaintiff, the surviving husband, was estopped from claiming that the contract was not binding upon him; that the fact that it was not binding on his wife when made is not material on the issue of estoppel as against the surviving husband.

The above authorities are all that are cited by defendants on principle which they urge, namely, that a wife may be barred from claiming the benefits of an antenup-tial contract not otherwise valid, merely because she exercised the privilege of dealing with her separate property during the marriage, owned by her prior to the marriage, as though she were a single woman. Note that, in both cases, the rule was applied as against the surviving husband. Defendants have cited no case where the principle has been applied to the surviving wife, and plaintiff says she has found no such case.

In Broyles v. Magee, (Mo.App.) 71 S.W.2d 149, it was held that an antenuptial agreement which did not possess the attributes of the statute previously mentioned, cannot bar the widow’s rights under the statute, and that the widow, having performed all of the terms of the agreement, was entitled to claim the benefits of the contract and those provided for widows under the statutes.

In Mowser v. Mowser, supra, it was held that it is against public policy to allow a man, by an agreement not in conformity with the statute, to bar a widow’s right to dower. We think, from the statute and decisions, that the statute here involved had, as its purpose, the safeguarding of the rights of women contemplating marriage, not those of men.

In Coulter v. Lyda, 102 Mo.App. 401, 408, 76 S.W. 720, the chief question involved was whether a contract, similar to the one here involved would bar a widow’s right to certain allowances provided by statute. The court held that her rights were not thus barred.

In King v. King, supra, the court held that the contract there involved failed to bar a widow’s rights under the statutes because it failed to expressly provide that the provisions therein made for her were made in lieu of dower, but also because it gave her nothing that she did not already have although, under its terms, the husband gave up his property rights in her estate owned prior to the marriage.

In 31 C.J.S. Estoppel § 110 a, p. 350, it is said that, as a general rule, by accepting benefits a person may be estopped from questioning the existence, validity, and effect of a contract. However, it is further said (p. 352) that an important exception to this rule is that where the contract is void as against public policy or against an express mandate of the law, a person who has accepted a benefit thereunder will not be estopped to defend against the contract when it is sought to be enforced against him. That principle of law is forcefully asserted in Miller v. Bowen Coal Mining Company, (Mo.App.) 40 S.W.2d 485, 490. In Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 881, the court said: “Equitable estoppel is impotent to purge transactions of the fatal infirmity of being in violation of law.” In harmony therewith, and as a clarification of that rule, it is stated in 30 C.J.S. Equity § 89, p. 458: “The general principles of equity will not be applied to frustrate the purpose of the laws or to thwart public policy. Equity will not permit that to be done by indirection which, because of public policy, cannot be done directly.”

The contract relied on by defendants has been said by the courts of Missouri to be void as against public policy. It was made in direct violation of the public policy of the state as declared by statute. To hold that plaintiff is estopped to deny its invalidity would be to permit by indirection that to be done which could not be done directly. That neither of the par-ties herein, nor this court has found a case in Missouri which holds as defendants contend the law to be, is some evidence that there is no such case. Lacking any positive authority to that effect, we will not flout well established precepts of the law as stated herein.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: MAUGHMER, Commissioner.

text:
    CITY OF INDEPENDENCE, Missouri, for the Use and Benefit of Charles GUINN, Plaintiff-Respondent-Appellant, v. George M. HARE and Mary Pearl Hare, Defendants-Appellants-Respondents, City of Independence, Missouri, Intervenor-Appellant.
    Nos. 23492 and 23496.
    Kansas City Court of Appeals. Missouri.
    June 4, 1962.

      Arthur B. Taylor and Kenneth H. Taylor, Independence, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for plaintiff and intervenor and John F. Thice, Independence, for intervenor, City of Independence.
    James L. Gillham, Independence, for defendants-appellants-respondents Hare.
   MAUGHMER, Commissioner.

This is an action to enforce the lien of a Special Sewer Tax Bill issued by the City of Independence, Missouri. After trial the court directed a verdict and entered judgment for claimant in the amount of $2,642.09 principal, plus accrued interest to April 11, 1961, in the sum of $1,170.71 or a total of $3,812.80.

In 1955, the City of Independence was a city of the third class. On August 29, 1955, it issued Special Tax Bill No. 41 for Sewer District No. 186, in the amount of $2,642.09 to Quickway Excavating Company, which company assigned to Charles Guinn, plaintiff in the present suit. Defendants George M. and Mary Pearl Hare by their answer admitted ownership of the real estate, but asserted Tax Bill No. 41 was void as to “procedure, form, content and effect” and was void for the further reason that it was issued pursuant to Ordinance No. 14118, which was invalid because not enacted according to law and in the manner and form prescribed by statute.

Some objections were registered by defendants to the introduction into evidence of Ordinance No. 14059, which created Sewer District No. 186. These objections appear mainly addressed to the real estate descriptions which were by metes and bounds and which defendants contend were not entirely accurate. However, the judgment lien is against the real estate so described and defendants’ complaints are not meritorious in this respect.

The real issue on appeal concerns the validity of Ordinance No. 14118, which was the ordinance levying and assessing the cost of constructing sewers in District No. 186 and under which Special Tax Bill No. 41 was issued. The ordinance itself recites its passage on August 29, 1955. The journal of the August 29 meeting shows that all twelve members of the council were present but is silent as to the votes on Ordinance No. 14118. The ayes and nays were not recorded.

The judgment here was entered on April 12, 1961. On April 18, defendants filed their motion to set aside or in the alternative to grant them a new trial. On May 17, 1961, and while defendants’ motion was pending and undisposed of, the City of Independence presented to the court its motion for leave to file an intervening petition. In support, the City suggested that the attack on the ordinance raised a matter of great public interest and that the City’s ability to sell future tax bills might be adversely affected. The City alleged further that in truth and in fact Ordinance No. 14118 was passed by a majority of aye votes and that the ayes and nays were actually taken. This application included affidavits signed by all twelve members of the council, the then mayor and city engineer, declaring that the ayes and nays were taken and that all twelve members voted aye. The City’s motion then prayed that the court reopen the case, allow the City of Independence to intervene and permit amendment of the record nunc pro tunc to show the taking and recording of the ayes and nays. The court denied the City’s motion to intervene, overruled defendants’ motion to set aside the judgment or grant a new trial and all three participants have appealed. The defendants Mr. and Mrs. Hare appeal from the judgment entered against them, while the plaintiff Guinn and the City1-, expectant in-tervenor, appeal from the denial of the motion to intervene.

Three questions are presented which must be answered in order to determine this appeal. First, is an ordinance under which a special tax bill is issued valid where the record does not show the taking or recording of the ayes and nays? Second, may the minutes of the journal be corrected to show such vote if in truth and in fact such vote was actually taken, and third, should the City of Independence under the facts of this case have been permitted to intervene for the avowed purpose of so correcting the record? The supporters of the judgment entered claim that the attack on the ordinance and ipso facto, upon the judgment itself, is a collateral attack and cannot be sustained regardless of the defects as to the ordinance. Generally presumptions are indulged in favor of the validity of special tax bills and that city officials do their duty. However, we reject plaintiff’s theory that these assumptions, which have received some lip service from the courts will render defective ordinances impregnable to assault or cure deficiencies in legislative enactments.

As Independence, in 1955, was a city of the third class, its powers were governed by what is now Chapter 77, RSMo 1959, V.A.M.S. Section 77.080 thereof provides in part as follows:

“The style of the ordinances of the city shall be: ‘Be it ordained by the council of the city of - as follows:’ No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the council shall vote therefor, and the ayes and nays shall be entered on the journal; and all bills shall be read three times before their passage”.

The provision of the statute that “no bill shall become an ordinance unless on its final passage a majority of the members elected to the council shall vote therefor, and the ayes and nays shall he entered on the journal” has long been held to he a mandatory provision and failure to record the ayes and nays invalidates or makes incomplete the enactment of such ordinance. In City of New Franklin ex rel. etc. v. Edwards, Mo.App., 23 S.W.2d 235, the journal recited the following vote: “Wilson, Yes; Bryan, Yes; Solomon, Yes”. The court commented there was no affirmative showing as to the number of councilmen, ruled the ayes and nays were not recorded, and struck down the ordinance as invalid. In Village of Beverly Hills v. Schulter, 344 Mo. 1098, 130 S.W.2d 532, 537, the journal entry read: “Each of the above 13 bills * * * were presented for passage, voted upon, and passed unanimously by all of the trustees present”. The court said: “In view of our mandatory statute that the yeas and nays shall be entered on the journal, we cannot hold that the journal entry here in question is sufficient”.

In Krug v. Village of Mary Ridge, Mo.App., 271 S.W.2d 867, the court declared that the statute requiring the ayes and nays to be entered on the journal is to afford and enforce publicity as to the votes of the individual members of the board of a municipal corporation upon matters coming before them for their official action and to fix upon each member the precise share of responsibility which he ought to bear.

Steiger et al. v. City of Ste. Genevieve, 235 Mo.App. 579, 141 S.W.2d 233, holds squarely that the statutory requirement that ayes and nays of aldermen voting on ordinances be entered on the journal is mandatory, should be strictly observed and constitutes a condition precedent to the validity of the ordinance. We believe that upon the initial record here which shows no record of the ayes and nays that the ordinance is invalid.

Now as to the second question: May the journal be corrected to show the ayes and nays if in truth and in fact such vote was taken? This court, State ex rel. Marcum v. Sappington et al., Mo.App., 261 S.W.2d 385, approved a mandamus proceeding to compel the municipal governing officials to amend the official minutes of a meeting to recite formal acceptance of relator’s oral contract offer.

In Cunningham et al. v. City of Butler et al., Mo., 256 S.W.2d 767, 768, the city intervened and was allowed to amend the journal nunc pro tunc to show that the ordinance had in truth and in fact been passed and the ayes and nays had been taken. The court said :

“(2) Plaintiffs say that Ordinance No. 36, passed on August 4, 1950, by which the city council provided for the construction of sewers in District No. 26, was void for the reason that the ayes and nays were not noted on the journal, as provided by Section 77.080 RSMo 1949, V.A.M.S. The record as entered by the City Clerk of the meeting on August 4, 1950, showed that five of the eight councilmen were present. Those present as shown by the journal were Blankenship, Norris, Foster, Stover, and Radford. The evidence of the City Clerk, Ray Wine-gardner, was that when Ordinance No. 36 was read for final passage all councilmen presented voted ‘aye’ and no one voted ‘nay’; that he recorded the vote as 5 ayes and no nays. On October 6, 1951, after the present suit was filed, pursuant to a motion for leave to amend the minutes of the city council of August 4, 1950, by a nunc pro tunc entry, the trial court ordered the minutes to be amended so as to reflect in full what occurred. The five councilmen above-named each signed an affidavit that he had been present and had voted for Ordinance No. 36. The record shows that this order was made by Phil H. Cook, Special Judge. The trial of the case on the merits began January 15, 1952, before Lawrence Holman, Special Judge. The order of Judge Cook was beyond question correct. Plaintiffs say in their brief 'Nunc pro tunc corrections of records are authorized only when there is some record upon which to base the correction.’ They cite State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167. In the case before us it could be ascertained from the minutes as made at the time Ordinance No. 36 was passed that the five councilmen present all voted ‘aye.’ It is evident that the nunc pro tunc order was proper”. See also Frago v. City of Irondale, 364 Mo. 500, 263 S.W.2d 356, 361.

In Steiger et al. v. City of Ste. Genevieve, supra, at page 236 of 141 S.W.2d, the St. Louis Court of Appeals said:

“Not only does a board of aldermen or municipal council have the inherent power to amend or correct its records to make them speak the truth (State ex rel., etc. v. Hackmann, 277 Mo. 56, 209 S.W. 92), but the power is said to be broad in cases where, through inadvertence or misapprehension, a record has been made up defectively so as not to reveal the actual proceedings that were had”.

In State ex rel. Compton Co. v. Walter, 23 S.W.2d 167, 170, the Supreme Court, after quoting with approval from an Illinois decision declaring a clerk may amend the record of a municipal corporation so long as he has the custody thereof according to his knowledge of the truth, said:

“(5) If a clerk may without direction lawfully amend the records of a municipal corporation according to the truth although he has no memorandum from which the amendment could be made, it must follow that under similar circumstances he could be coerced by mandamus to make the record speak the truth, either by recording that which he had failed to record or correcting that which he had incorrectly recorded. Our own courts have recognized that the strict and technical rules which apply to the correction of judicial records do not apply to the correction of municipal records. In State ex rel. School District No. 1 v. Hackmann, 277 Mo. 56, 63, 209 S.W. 92, 94, we quoted with approval from Boston Turnpike Co. v. Town of Pomfret, 20 Conn. 590, 596, the following: ‘Courts, however, have never adopted, and from their nature it would not be practicable to adopt, those strict, technical and peculiar rules as to their correction, which apply to the amendment of judicial records. On the contrary, it is deemed of so great importance to uphold the proceedings of our municipal corporations that courts are disposed to be as indulgent in allowing entries of their proceedings to be amended, as is consistent with the safety of those whose interests would be affected by them’ ”.

In our case the journal as made shows all twelve councilmen present and that the ordinance was passed. Correction or modification nunc pro tunc to show the ayes and nays would not be a change in the record but rather an expansion to show in detail the actual vote. We believe the City of Independence should have been permitted to intervene and that it should be heard on the application to correct the journal so as to show in detail passage of the ordinance and a jecording of the ayes and nays.

Paragraph 4, subsection 3, Section 507.-090, V.A.M.S. provides:

“In all cases and proceedings wherein the validity of an ordinance or regulation of any governmental subdivision of this state affecting the public interest is drawn in question, and the governmental subdivision, or an officer, agency or employee thereof is not a party, the governmental subdivision may in the discretion of the court be permitted to intervene, upon proper application

We have here a sewer district created by the City of Independence. Numerous tax bills were issued to provide funds for this improvement. Under this lawsuit the validity of the ordinance was questioned. It is a matter directly affecting the public interest of the City of Independence, and indirectly other cities. It is our belief and we hold under all these circumstances that the trial court should have permitted the City of Independence to intervene in this action.

For all the reasons stated herein, the judgment is reversed and the cause is remanded for retrial and with directions to permit the City of Independence to intervene and for the court to consider the application to amend the journal nunc pro tunc on its merits.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: RUARK, Presiding Judge.

text:
    Cliff B. SMITH, d/b/a Town and Country Supply Company, Plaintiff-Appellant, v. L. M. MALONE, Defendant-Respondent.
    No. 8059.
    Springfield Court of Appeals. Missouri.
    July 11, 1962.
    Henley & Fowlkes, Fred L. Henley, Car-uthersville, for plaintiff-appellant.
    No brief or appearance on appeal, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal from an order setting aside a judgment and returning it to the trial docket.

Plaintiff sued for damages caused by breach of contract. As appears by the petition and the contract incorporated therein by reference, the plaintiff Smith (now appellant) had a contract to build a house for one Fowlkes according to certain plans and specifications. On June 2, 1960, Smith entered into a subcontract with defendant Malone (now respondent) whereby Malone agreed to furnish the labor and tools required for the completion of said building, except certain specific items, for a price of $9500, to be paid in equal installments of 90% of the total wages paid by the subcontractor, and the balance on completion. The subcontractor agreed to commence work on June 2, 1960, to be present at the construction site on every working day and to have the work completed on or before October 2, I960.

On February 23, 1961, plaintiff filed the suit charging that defendant had failed to complete the building and praying for $4000 damages. No question is raised about service. On May 16, 1961, defendant not having answered, plaintiff took judgment. The court found the dwelling house was not completed on October 2, 1960, and remained uncompleted, and rendered judgment for $3874.43 damages.

On June 1, 1961, defendant filed an (unverified) motion to set aside the default judgment, alleging (1) the plaintiff filed the suit with fraudulent intent; (2) prior to answer time defendant discussed the suit with plaintiff and was informed by plaintiff that the filing of the suit was a fraud and he should ignore it; that it was for the purpose of coercing defendant to perform certain work without compensation; (3) the defendant also discussed the suit with one J. R. Fowlkes, one of plaintiff’s attorneys, and received similar information; (4) defendant had a “good and meritorious defense” and had it not been for the statements so made he would have employed counsel and made defense; (5) the judgment was obtained by fraud.

On July 3, 1961, hearing was had on the motion. Preliminary colloquy and discussion by the attorneys with the court refers to a motion to dismiss, but we find no such motion in the record. However, it does show that plaintiff-appellant objected to the introduction of any evidence.

The court took the question under advisement and on September 5, 1961, entered its order setting the judgment aside and returning the case to the docket.

Appellant concedes that we cannot consider the motion to set aside the default judgment as a motion for new trial in ordinary course (V.A.M.R. 78.02). It is not aimed at anything in the record or anything which transpired during the course of the trial. It is a motion to vacate because of something entirely extrinsic from the record or proceedings.

Nor can it, under the majority rulings in our state, be treated as a motion in the nature of coram nobis.

We are of the opinion that the appeal must be dismissed because there is no final judgment which can be appealed from. Our courts hold that there can be no appeal from an order setting aside a default judgment. Bussiere’s Adm’r v. Sayman, 257 Mo. 303, 165 S.W. 796, 800; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, 471; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, and cases cited at 1. c. 234; Owens v. Owens, Mo.App., 280 S.W.2d 867, and cases cited at 1. c. 869; McCormick v. St. John, 236 Mo.App. 72, 149 S.W.2d 894, 897; see Settlemeyer v. Musick, Mo.App., 325 S.W.2d 61, 63.

In the Kallash case, supra, at l. c. 470 of 347 S.W.2d, the court said:

“It must be kept in mind that this is not a case where the court has refused to set aside a default judgment and where the defendant seeks an appeal, nor is it a matter of a motion in the nature of a writ of error coram nobis, nor a proceeding for a review of a judgment irregular on its face, nor is the order vacating the judgment a granting of a new trial. * * * Cases involving such situations are not applicable here.”

Let it be said that there are cases in which the parties were both represented and briefed and presented the case to the appellate court on the merits of the subject in controversy, viz., as to whether the judgment should or should not have been set aside, and the court took the issues as presented and decided the case on those issues. But, for the reason aforestated, we must dismiss the appeal as premature. It is so ordered.

McDOWELL and STONE, JJ., concur.

      . Quattrochi v. Quattrochi, Mo.App., 179 SW.2d 757 (4); Ragland v. Ragland, Mo.App., 258 S.W. 728, 730; Schneider v. Schneider, Mo.App., 273 S.W. 1081, 1083; Hartford Fire Ins. Co. v. Stanfill, Mo.App., 259 S.W. 867, 870; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048, 1052; Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 881; see Edson v. Fahy, Mo., 330 S.W.2d 854, 857; Norman v. Young, Mo., 301 S.W.2d 820, 822.