author: OSBORNE, Judge.

text:
    Elvin C. OSBORNE, Appellant, v. BULLITT COUNTY BOARD OF EDUCATION, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.
    Rehearing Denied June 30, 1967.

      Gilbert Hale Nutt, William P. Mulloy, Louisville, for appellant.
    T. C. Carroll, Burlyn Pike, Taylor & Pike, Shepherdsville, for appellee.
   OSBORNE, Judge.

This is an appeal from an order of the Bullitt Circuit Court affirming the County Board of Education in discharging appellant as a teacher in the public schools of Bullitt County. Specifically the appeal involves the procedures to be followed by a school board in discharging a teacher who has a contract of employment. The charges as filed by Mr. M. J. Cundiff, as chairman of the County Board of Education and Mr. Thomas Jefferies, as secretary, charge appellant as follows:

“1. Insubordination based upon fact that you refuse to co-operate with the principal of your school in the conduct of the school and the orders issued by him and your conduct toward him has been such that it is disruptive of the progress of the school.
“2. You have distributed alleged copies of confidential records from files of the school that have because of your so doing has violated instruction of your superiors in office and created prejudices against the manner in which the school has been conducted, (sic)
“3. You have failed to properly instruct the pupils in the subjects taught by you and do not have proper attention from or control over your pupils.
“4. You have installed in your room, where you teach, a punching bag, without necessary permission to do so and without permission have moved basketball basket from where they were located (sic) to other places.
“5. Your suggestion as to conduct of P.T.A. has been such as would cause same to be discredited if followed out.
“6. Your conduct in connection with teaching has not been for best interest of the school.
“7. In threatening to file suit against the principal of the school and statements included in the copies of confidential reports distributed by you. (sic)

At the hearing, which was held on February 10, 1966, at the office of the Bullitt County Board of Education at 1:30 P.M., the appellant specifically objected to going to trial under the charges for the reason that they were not sufficiently specific to inform him of the nature of his offenses and did not meet the requirements of KRS 161.790. In addition to appellant’s objection to the vagueness of the charges, he attempted at the commencement of the hearing to examine the members of the school board concerning any prejudice they might hold against him and as to any information they had received adverse to him. The school board denied his request, and the members declined to testify. The hearing was conducted before the school board. Various witnesses testified for both parties. Both appellant and the Board of Education were represented by counsel.

In examining appellant’s first contention that the charges against him were not sufficiently specific, we must examine the language contained in KRS 161.790, wherein it is provided:

“The contract of a teacher shall remain in force during good behavior and efficient and competent service by the teacher and shall not be terminated except for any of the following causes:
“(a) Insubordination, including but not limited to 1. violations of lawful rules and regulations established by the local board of education for the operation of schools, and 2. refusal to recognize or obey the authority of the superintendent, principal, or any other supervisory personnel of the board in the performance of their duties;
“(b) Immoral character or conduct unbecoming a teacher;
“(c) Physical or mental disability;
“(d) Inefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved.
“(2) (a) Charges on the above causes shall be supported by written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board, (b) Marriage of a teacher shall not be cause for termination of the contract.”

We note from the above that the contract can not be terminated except for insubordination; violation of lawful orders and regulations; refusal to recognize or obey the authority of the superintendent, principal or other supervisory personnel; immoral character or conduct unbecoming a teacher; physical or mental inability; inefficiency; incompetency or neglect of duty. However, if charged with the latter three, a written statement must previously have been given to the teacher identifying the problems or difficulties. All charges must be supported by written records of teacher’s performance by the superintendent, principal or other supervisory personnel. Now, to test the charges with the requirements contained in the statute.

Charge #1 is “insubordination based upon fact that you refuse to co-operate with the principal of your school in the conduct of the school and the orders issued by him and your conduct toward him has been such that it is disruptive of the progress of the school.” We note that this charge is apparently drawn under § 1A of the statute as it includes insubordination, but it does not charge that there was a violation of any rule or regulation established by the board of education, nor does it charge that he refused to recognize or obey the authority of the superintendent or principal. It charged, instead, that he refused to cooperate with the principal. This may seem like “nit-picking” at first blush but there can be a great difference between not obeying and not cooperating. However, to pass over this failure, we are of the opinion that the charge as framed does not furnish appellant with facts upon which he could reasonably formulate a defense. It gives no date of his actions, nor does it indicate in any way the specific nature of the acts. The charge as it is framed could be validly asserted against almost any one, as it is more subjective than objective.

The second charge is “you have distributed alleged copies of confidential records from files of the school that because of your so doing has violated instruction of your superiors in office and created prejudices against the manner in which the school has been conducted.” (sic) To read this charge in its most favorable light, it appears the appellant is being accused of violating the instructions of his superiors by distributing copies of confidential records from the files of the school. This again would come under § 1A insubordination including violation of lawful rules and regulations established by the local board of education. However, there is no charge that the board had enacted a rule or regulation prohibiting the removal of these records from the files, and their removal, unless it is a violation of a rule lawfully enacted by the board, would not constitute misconduct.

The third charge, “you have failed to properly instruct the pupils in the subjects taught by you and do not have proper attention from or control over your pupils” would come under § ID inefficiency, incompetency or neglect of duty. However, here we find that the statute requires a written statement identifying the problems or difficulties which first must have been furnished to the teacher. The charge does not 'indicate that such statement was furnished nor does the charge contain within it such statement. Therefore, in our opinion, it does not meet the requirements of the statute.

The fourth charge reads, “You have installed in your room where you teach, a punching bag, without necessary permission to do so and, without permission, have moved basketball basket from where they were located to other places.” (sic) Certainly there is nothing contained herein that meets the requirements of the statute. The same is true of the fifth charge.

The sixth charge reads, “your conduct in connection with teaching has not been for best interest of the school.” (sic) This charge might possibly be construed as incompetency, however, again we point out the facts of the incompetency must be alleged and not the conclusion.

The seventh charge of threatening to file suit against the principal is not sufficient grounds for discharge as the suit might be justified, nor does it appear that the suit is malicious or groundless. We deem the foregoing statement of charges to be too vague and indefinite to furnish the appellant with sufficient information upon which he could base a defense. We also find that they do not conform to, or meet, the standards required by KRS 161.790.

Appellant’s next allegation of error in the proceedings is the refusal of the members of the school board to be called and examined upon their possible prejudice against him. We believe that they should have submitted to such examination. Most certainly appellant was entitled to show in the record that those who were responsible for his discharge were motivated by improper and unfounded reasons. We are deeply concerned with the procedure which requires a teacher to submit to a trial at the hands of the school board, the members of which wear three hats; the hat of the employer, the hat of the prosecutor, and the hat of the trier. In the case of Board of Education v. Chattin, Ky., 376 S.W.2d 693, we held that, upon appeal, the circuit court was limited to an examination of the record of the proceedings held before the school board. The ruling therein was based upon our holding in American Beauty Homes Corp. v. Planning and Zoning Commission of Louisville and Jefferson Co., Ky., 379 S.W.2d 450, in which we held that a judicial review of administrative action should be limited to the question of arbitrariness of the administrative body. We no longer think that the principles enunciated in American Beauty Homes should be extended to the problems herein involved. KRS 161.790(6) clearly states that in addition to examining the transcript of the hearing before the Board, the court shall hold additional hearings if this seems advisable and that evidence other than that contained in this transcript may be considered. To restrict the court to consideration of only that which occurred before the Board would be to completely ignore the provisions of this statute. Even though a school board is an administrative body, its functions are not exclusively administrative ; especially this is true where the Board is proceeding under the provisions of the foregoing statute in the trial of a teacher for violation of his contract of employment.

The Supreme Court of Alabama in two separate cases dealt with this problem and concluded that de novo proceedings from actions of administrative bodies are proper. In dealing with the same type of case now before the court, viz., the discharge of a teacher for misconduct wherein the Superintendent of Education refused to answer questions propounded to him at the hearing before the Board of Education, and the Board of Education refused to allow its minutes to be introduced in evidence, the court said:

“A board of education is a part of the executive department, but in the operation of our public school system it exercises not only purely administrative functions, but others of a legislative character, and still others of a quasi-judicial character. Of the administrative type are the hiring of teachers, their assignment in the school system, and the management and control of school property. Of the legislative type are the making of rules and regulations and the determination of policies governing the hiring and assignment of teachers, and the use of school property. Of the quasi-judicial type is the power to hear and determine proceedings for the cancellation of contracts of tenure teachers.
“Although a board of education in the exercise of such powers of cancellation acts as a quasi-judicial body, it does not thereby lose its identity as an administrative body and become a court to the extent that the regularity of its action is to be tested by strict legal rules prevailing in court proceedings.
“While no particular form of procedure is prescribed for such hearings, due process must be observed. Such is the rule generally as to hearings provided for by statute before the administrative agencies. Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129; Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Alabama Electric Cooperative, Inc., et al. v. Alabama Power Co., Ala.Sup., 36 So.2d 523; Alabama Power Co. v. City of Fort Payne, 237 Ala. 459, 187 So. 632, 123 A.L.R. 1337.
“The anomaly in procedure which permits the board of education, an administrative body, to serve in the triple capacity of complainant, prosecutor, and judge makes it vitally necessary that in reviewing administrative decisions courts zealously examine the record with the view to protecting the fundamental rights of the parties, lest the rule against arbitrariness and oppressiveness become a mere shibboleth. An appeal not being provided for, the review by mandamus must not be permitted to degenerate into a mock ceremony. The least that the courts can. do is to hold high the torch of ‘fair play’ which the highest court of our land has made the guiding light of administrative justice. Morgan v. United States, supra.” (State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689.) See also Ex Parte Darnell, 262 Ala. 71, 76 So.2d 770.

Jaffee, in his book on Judicial Control of Administrative Action, reviews the decisions of the several state courts in construing statutes that provide for trial de novo from proceedings of administrative bodies and concludes that the legislature should be free to vest the courts with de novo jurisdiction over these bodies.

“A legislature should be free to assign them first to an agency with trial de novo by a court rather than the usually appropriate limited review. Such an arrangement may have much to commend it. It may be possible to dispose of the great mass of business by informal or formal administrative process with judicial reconsideration available for the occasional case which is important enough to one of the parties to warrant the special values of judicial treatment. And there are certain decisions such as revocation of or failure to renew a license which are of crucial importance to the licensee, the decision of which is liable to be influenced by agency predilection or prejudice. A legislature may feel that for such cases there should be available the special safeguards of the judicial process. Considerations such as these should cause the courts to hesitate before holding that the statute imposes upon them a forbidden non-judicial function.” Louis L. Jaffee, Judicial Control of Administrative Action, p. 103, (1965).

We agree with the foregoing authorities that the legislature may properly require a trial de novo upon appeal from certain actions of administrative bodies without doing violence to the constitutional requirement of separation of powers. We believe the principle of due process requires that certain actions of administrative bodies be fully and completely reviewed in de novo proceedings especially where due process has not been observed in the administrative proceeding. For these reasons we believe that Board of Education v. Chattin, supra, should be overruled to the extent that it conflicts with the views herein set out.

KRS 161.790(6) provides:

“The teacher shall have a right to make an appeal both as to law and as to fact to the circuit court. * * * The court shall examine the transcript and record of the hearing before the board of education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record. Upon final hearing, the court shall grant or deny the relief prayed for in the petition * * * ”

Since the charges brought by the board were not sufficient to support the order of dismissal and the proceedings before the board did not meet the requirements of due process, the trial court should have set aside the order. The case is remanded for proceedings consistent with this opinion and the provision of the foregoing statute.

The judgment is reversed.

All concur.


source: Caselaw Access Project

author: WILLIAMS, Chief Justice.

license: Public Domain

text:
    Robert Glenn SEAMAN et al., Appellants, v. Lawrence E. CASTELLINI et al., Appellees.
    Court of Appeals of Kentucky.
    May 26, 1967.

      Andrew W. Clark, Hughes, Clark & Burke, Covington, for appellants.
    Robert F. Greene, William P. McEvoy, Burlington, Raymond R. Vincent, Florence, James A. Nolan, Covington, for appellees.
   WILLIAMS, Chief Justice.

The appellees Mr. and Mrs. Lawrence E. Castellini filed an action in the Boone Circuit Court seeking damages against the City of Florence, W. L. Harper Company, O. G. Loomis and Son, and four neighboring property owners. They claimed they had suffered damages from flooding due to the negligent construction of a sanitary sewer. The City of Florence cross-claimed against W. L. Harper Company and O. G. Loomis and Son. Before the case went to trial the court dismissed the claim against the four neighboring property owners. A jury returned a verdict against the City of Florence, W. L. Harper Company and O. G. Loomis and Son in the amount of $10,000. On the City of Florence cross-claim the jury returned a verdict against O. G. Loom-is and Son in the amount of $8,211.80, the cost of reconstruction of the sewer. The City of Florence and W. L. Harper Company paid their portion of the judgment. O. G. Loomis and Son has appealed.

In April 1960, the City of Florence had a sanitary sewer line built along appellees’ street. W. L. Harper Company was the contractor. Loomis and Son was the engineer. The main sanitary sewer line was on appellees’ side of the street. A city ordinance required residents to make connections at designated points along the street. Property owners on the opposite side of the street had to build their sewer lines across a storm sewer in order to reach the main sanitary sewer line. These connecting lines disrupted the flow of the storm sewer causing repeated overflow onto appellees’ property. The damage complained of resulted.

On the trial of the case, after the appellees had concluded presenting their evidence, the appellants made a motion for a directed verdict, which was overruled. The ground was the appellees had failed to establish facts sufficient to sustain their allegation that appellants were guilty of negligence. Testimony of civil engineers later taken was sufficient to present the question of appellants’ negligence to the jury. It is the rule that a plaintiff is entitled to the benefit of any facts developed by either party which might sustain his cause of action. Such facts may be developed by a defendant or a co-defendant. If it was error to overrule appellants’ motion at the time it was made, the error was cured when subsequent testimony supplied the omission in appellees’ case. Lyon v. Prater, Ky., 351 S.W.2d 173 (1961).

Appellants now allege that appellees were not entitled to recover on the ground they assumed the risk of damages by building an apartment building on a low lot. That defense was not pleaded, CR 8.03, and was waived. At any rate the jury was properly instructed and found in favor of appellees.

Before this case was tried the circuit court ordered the City of Florence to reconstruct the sewer. The order provided in part:

“ * * * the entry of this order shall not constitute an admission of liability or an admission against interests to the prejudice of any of the parties in a trial upon the merits in the cause.”

The entry of that order was not a judicial determination of liability as alleged by appellants.

Finally, appellants complain the court erred in submitting the City of Florence’s cross-claim to the jury in view of the fact the City was found jointly liable with appellants and W. L. Harper Company. The joint liability of the three defendants was based on a complaint for damages to a building. The cross-claim of the City was for sewer reconstruction or repair rendered necessary by appellants’ negligence. This then does not raise a question of contribution between joint tort-feasors. In effect there were two actions; one for damages caused by flooding a property owner’s building, and the other for damages caused the City by the necessity of reconstructing the sewer.

We find no reversible error in the case.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, Appellant, v. John E. CAMPBELL, Appellee.
    Court of Appeals of Kentucky.
    May 26, 1967.

      Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellant.
    S. M. Ward, Hazard, for appellee.
   CLAY, Commissioner.

The trial court sustained appellee’s motion under RCr 11.42 to vacate a judgment sentencing him to 10 years in the penitentiary for carnally knowing a female under the age of 16. The ground of the motion was the ineffective assistance of counsel. The Commonwealth appeals.

In 1958 appellee, along with four other persons, was charged with the crime of which he was convicted. As did two other codefendants, he pleaded guilty. He now claims he was coerced by his lawyer into entering that plea.

On the day of the trial a reputable, competent attorney (now deceased) was appointed to represent him. This attorney conferred with the prosecuting witness (and perhaps others) and advised appellee that because of the strong case against him he should plead guilty in expectation of a lighter sentence. Upon following this advice appellee was given 10 years, the maximum on the charge being 20. In answer to the question, “What made you plead guilty ?” appellee answered:

“I don’t know, the lawyer said I might take a chance on getting more time, or I could cop out for the lowest, or something like that, that’s about the only reason I copped out.”

After nine years in the penitentiary, ap-pellee asserts the guilty plea was bad advice and that his counsel’s insistence upon entering that plea constituted ineffective representation.

The Commonwealth first contends ap-pellee was not entitled to a hearing because his motion did not state specifically in what respects he was not given effective assistance by counsel, citing Ringo v. Commonwealth, Ky., 391 S.W.2d 392; Burton v. Commonwealth, Ky., 394 S.W.2d 933; Humphries v. Commonwealth, Ky., 397 S.W.2d 163. Since a hearing was held, we will not pass on that question.

There is nothing in this record to indicate that the advice given appellee by his counsel was not proper and sound. The attorney had made diligent effort to discover the incriminating evidence that would be presented against appellee, and he was convinced appellee stood no chance of beating the charge. As so often happens, a plea of guilty resulted in a lighter sentence than might have been imposed. To influence a defendant to accept this alternative is proper. See Ray v. Commonwealth, Ky., 398 S.W.2d 504; Smith v. Commonwealth, Ky., 404 S.W.2d 285. When an attorney, after making an adequate investigation, in good faith and in the exercise of reasonable judgment induces his client to take this course, we cannot discern in what respect this constitutes ineffective representation. Certainly there was nothing about this manner of representation which would shock the conscience of the court or render the proceedings a farce and a mockery of justice. Wahl v. Commonwealth, Ky., 396 S.W.2d 774.

In its findings the trial court stated there was a “strong possibility” that ap-pellee’s counsel could not properly represent him because he had been employed by a codefendant. There is a suggestion of a conflict of interest in this case, but the record fails to disclose that it existed or that counsel’s advice was influenced by anything but the best interests of appellee. Since the prosecuting witness claimed that a group of persons committed the act, the conviction of one or more would not shift the guilt from anyone who participated. Counsel’s original client was not prosecuted because he was not identified as having participated. Consequently, we cannot find the possibility of a conflict of interest sustains appellee’s claim that he did not have effective assistance of counsel.

The trial judge vacated this judgment because he had “serious doubt” whether appellee was properly and adequately represented. In our opinion this is not sufficient ground for vacating a judgment in an RCr 11.42 proceeding, particularly when effective representation by counsel is in question. There is a “heavy burden” on the movant in such a proceeding. Wahl v. Commonwealth, Ky., 396 S.W.2d 774. See also United States v. Edwards, D.C., 152 F.Supp. 179. He must do more than raise a doubt about the regularity of the proceedings under which he was convicted. He must establish convincingly that he has been deprived of some substantial right which would justify the extraordinary relief afforded by this postconviction proceeding. We cannot find that ap-pellee in any respect sustained this burden.

The judgment is reversed.

All concur.


text:
    W. A. WILLIAMS et al., Appellants, v. Dan SLATE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    As Modified on Denial of Rehearing June 16, 1967.

      L. B. Weir, Madisonville, for appellants.
    Richard L. Frymire, Madisonville, for appellee.
   CLAY, Commissioner.

Appellants in this suit sought to enjoin appellee from maintaining a barricade across a passway on land owned by him which allegedly had long been used by the general public. The Chancellor granted appellants substantial relief by enjoining appellee from closing the passway to the general public “traveling on foot, on horseback, or in small vehicles”. It is appellants’ contention that they had the right to use it as a coal-haul road for heavy trucks.

The sole issue in this case is whether the “prescriptive” right of the public in this passway was sufficiently broad to include its commercial use for coal hauling by truck. The Chancellor properly decided that the public had acquired a passway easement by long-continued user. The only question is the nature of the use which the easement authorizes.

It was not until 1954 that this old farm road was reconstructed to accommodate commercial coal haulage by truck. There is some dispute as to whether this substantial change in the nature of the use was permissive, but it is immaterial. Assuming it was adverse, it did not continue, prior to the filing of this suit, for the statutory period of 15 years, which would have created a right to such user. It is apparently appellants’ contention that if the general public had acquired a passway easement prior to 1954 (which the judgment confirmed), such easement carried with it the right to any public user which the road would physically support regardless of the nature of the use or the type of vehicles employed. The law is to the contrary.

An easement by prescription is limited by the purpose for which it is acquired and the use to which it is put for the statutory period. Ben Snyder, Inc. v. Phoenix Amusement Co., 309 Ky. 523, 218 S.W.2d 62; Campbell v. Winchester Realty Co., Ky., 294 S.W.2d 919. In Lyle v. Holman, Ky., 238 S.W.2d 157, 159, the following observations were made:

“When acquired by prescription it may be conditional and restricted according to the use and purpose of its enjoyment during the prescriptive period. It will not ripen into a greater estate after the period of limitation has passed. The right is crystallized as to form during the waiting period and is of the nature of the use during that period.”

The principle applies equally to a public or private easement. Baker v. Maggard, Ky., 255 S.W.2d 45. That case involved a public passway and the facts are quite similar to those we have here involved. It was held that where the prescriptive right of public use was acquired for pedestrian and horseback traffic, the public had no right to convert it to vehicular use, even though the owner had permitted an individual to improve the passway and put it to such additional use. For other authorities on this subject, see 5 A.L.R. 3rd 439.

In Cameron v. Barton, Ky., 272 S.W.2d 40, which involved a grant by deed of an easement for general passway purposes, we observed that a passway right was not restricted to ancient modes of travel and that a normal change in the use of a passway did not constitute a deviation from the original grant. However, a pass-way easement by prescription is more limited because we cannot look to the intentions of the parties involved but are restricted to the nature of the actual use which defines the easement. In any event, assuming that improved methods of personal transportation would be permissible, a radical change in the nature of the use and type of vehicle employed would not constitute a normal development.

The easement acquired by prescription was for normal rural transporta-' tion purposes. Converting the passway to a haul-road for heavy coal trucks was an entirely new and heavily burdensome use unrelated to that which had theretofore existed. A prescriptive right to such use could only be acquired, not by tacking it on to the prior use, but by its continuation for the full statutory period of 15 years. This was not established, and consequently appellants acquired no right to this type of user.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, ex rel. Robert MATTHEWS, Attorney General, Appellant, v. Jim (Jimmie) RICE, Appellee.
    Court of Appeals of Kentucky.
    Oct. 28, 1966.

      Earl R. Cooper, Marcus Mann, Salyers-ville, for appellant.
    Woodrow W. Burchett, Prestonsburg, Cordell H. Martin, Hindman, for appellee.
   MONTGOMERY, Judge.

This is an ouster proceeding under authority of KRS 415.050 and 415.060 against Jim (Jimmie) Rice, a purported member of the Magoffin County Board of Education. It is contended that Rice is not eligible for such membership because he had not met the statutory requirement of an eighth grade education. KRS 160.180(1) (c). The appeal is prosecuted from a judgment in favor of Rice.

The first contention urged by appellant is dispositive of the case. Appellant argues that Rice’s failure to respond properly to a request for admission under CR 36.01 amounts to an admission that he did not possess the necessary educational qualifications.

Appellant made a request that ap-pellee make the admission “That he has never completed the eighth grade education.” The response, omitting the caption and the certificate of service, is as follows:

“Comes the defendant, by counsel, and in Response to Request for admission, states that the information desired by plaintiff and their Counsel, is to be found in the Pleadings heretofore filed.
“Defendant admits that he is qualified and has completed the eighth grade as required by Statute, and that he attended elementary school to obtain the eighth grade education as hereinbefore set out.
“This April 16, 1965.
W. W. Burchett
W. W. Burchett, Prestonsburg, Kentucky
Cordell H. Martin
Cordell H. Martin, Hindman, Kentucky Attorneys for Defendant”

The pertinent portion of CR 36.01 follows:

“Each of the matters of which an admission is requested shall be deemed admitted unless * * * the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, *

Appellee did neither. Such failure should have been deemed an admission by appellee that he did not meet the statutory educational requirement. Sims Motor Transportation Lines v. Foster, Ky., 293 S.W.2d 226; Lyons v. Sponcil, Ky., 343 S.W.2d 836; Commonwealth, Dept. of Highways v. Claude Compton Lumber Co., Ky., 387 S.W.2d 314; Water Hammer Arrester Corporation v. Tower, 7 Cir., 171 F.2d 877; Bowles v. Batson, D.C., 61 F.Supp. 839. See also Clay, CR 36.01, Comment, pages 486-488.

Failure to respond properly under CR 36.01 may constitute an admission justifying the granting of a summary judgment or a directed verdict. Smather v. May, Ky., 379 S.W.2d 230; Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204, 15 Alaska 494. Appellant’s motion for summary judgment should have been sustained and judgment of ouster should have been granted.

Other questions presented are not decided and are reserved.


author: PALMORE, Judge.

text:
    George Lester BALL et al., Appellants, v. EASTERN COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 30, 1967.

      Jean L. Auxier, Pikeville, Abishi C. Cunningham, Welch, W. Va., for appellants.
    Julius Rather, Lexington, John M. Stephens, Stephens & Combs, Pikeville, Bert T. Combs, Lexington, George Richardson, Jr., Richardson & Hancock, Blue-field, W. Va., Albert S. Kemper, Jr., Blue-field, W. Va., for appellees Eastern Coal Corp.
    Grant F. Knuckles, Pineville, J. Ervin Sanders, Pikeville, Sanders & Redwine, Harrison Combs, Washington, D. C., M. E. Boiarsky, Charleston, W. Va., H. B. Noble, Hazard, for appellees United Mine Workers.
   PALMORE, Judge.

Appellants, 177 former employes of the appellee Eastern Coal Corporation (hereinafter Eastern), brought this suit for damages against Eastern and the appellee United Mine Workers of America (hereinafter UMW, or the union) claiming they were discharged in violation of their seniority rights under the National Bituminous Coal Wage Agreement of 1950, as amended, to which contract Eastern and UMW, as collective bargaining agent for its members, were parties. After development of the dispositive facts through appropriate pleadings, stipulations and pretrial conference the trial court made findings of facts and conclusions of law and entered a summary judgment denying relief and dismissing the action on the merits.

In 1953 Eastern was operating coal mines in Pike County, including its Nos. 4, 8 and 7. Nos. 4 and 8 were connected by a trestle and operated as a single unit, all of the coal from both openings being processed through a central cleaning plant and tipple at the No. 8 entry. No. 7 was located some two miles away and had its own tipple. Employes at Nos. 4 and 8 belonged to the UMW Local 5737. Those at No. 7 belonged to Local 5729.

On May 17, 1953, Eastern completed an underground haulway connecting Nos. 7 and 8, abandoned its tipple at No. 7, and began transporting coal from No. 7 through the underground haulway and processing it through the central cleaning plant and tipple at No. 8. Since the UMW constitution provides that no mine shall be under the jurisdiction of more than one of its local unions, on June 16, 1953, District 17 of the union dissolved Local 5729 and transferred its members to Local 5737.

During the next several months Eastern laid off a number of the miners, and disputes arose concerning the manner in which seniority was being or should be determined. The employes who had been working at Nos. 4 and 8 prior to the physical consolidation with No. 7 took the position that the employes at No. 7 became “new men” whose seniority dated from May 17, 1953, in the same manner as employes who had transferred from No. 7 to Nos. 4 and 8 before the consolidation had become “new men” as of their transfer dates. Evidently this was the approach taken initially by Eastern and the Local Mine Committee of the union, but some of the dissatisfied men appealed to higher authority (District 17) within the union, and on November 2, 1953, the president, vice president and chief field representative of District 17 determined in effect that on May 17, 1953, for purposes of seniority Nos. 4, 8 and 7 had merged into a single mine and that all employes retained their respective seniority dates as of immediately before that event. This decision was communicated to the Local Mine Committee by a letter dated November 2, 1953. The Local Mine Committee then took the matter up with Eastern, whereupon Eastern agreed to and did adjust its payroll accordingly. Thereafter, though Eastern continued its separate numerical designations of the various mine entries for the purpose of work assignments and inspection reports, and the union also continued to recognize such separate identities in its correspondence relating to safety inspections, for purposes of payroll and seniority they were and have been treated as one and the same mine.

Reductions in force at Eastern’s operations in Pike County culminated in a substantial number of layoffs in March and April of 1954. Appellants were employes at Nos. 4 and 8 who were discharged pursuant to the payroll seniority plan, but whose names would not have been reached for discharge under their version of the mine seniority plan. In response to their protests Eastern’s management advised them that Eastern had to “go along” with the officers of the local union. A committee representing appellants then requested the Local Mine Committee to file a grievance, but the Local Mine Committee took the position that no grievance existed and declined to do so. An appeal to District 17 asking that the Local Mine Committee be compelled to present formal grievances resulted in a decision by the executive board of District 17 on May 27, 1955, holding that the controversy had been properly resolved, and thus affirming the decision theretofore made by its officers and communicated to the Local Mine Committee in the aforementioned letter of November 2, 1953.

Being dissatisfied with the action of District 17, the aggrieved employes appealed to UMW, whose president appointed a commission composed of two members of the UMW executive board to make a report and recommendation. On November 16, 1955, the commission reported the facts of the controversy to the president and recommended that the opinion of District 17 be sustained.

On May 16 or 17, 1956, a committee representing the aggrieved employes appeared before the executive board of UMW at Washington, D. C., and was afforded a hearing on its appeal from the report and recommendation of the commission. After such hearing the UMW executive board affirmed the commission’s recommendation.

Eastern did not take part in any of the proceedings within the UMW organization.

In this suit the appellants contend that Eastern has breached the contract and UMW has breached its fiduciary duties to them.

More specifically, as we understand it, the _ osition of appellants is that the merger of the two seniority lists in the manner herein described violated their rights under the contract, that the union’s determination of its propriety and Eastern’s subsequent acquiescence amounted to an unauthorized amendment of the contract, and that the union’s participation in this violation of their contract rights and its refusal to submit their complaint to the grievance procedure set forth in the contract constituted a violation of its fiduciary duty of fair representation as their bargaining agent.

Appellants rely heavily on a principle that in our opinion is no longer the law. That principle, stated and applied in Piercy v. Louisville & N. Ry. Co., 198 Ky. 477, 248 S.W. 1042, 33 A.L.R. 322 (1932), is that a labor union “is not the agent of the member for the purpose of waiving any personal right he may have, but is only his representative for the limited purpose of securing for him, together with all other members, fair and just wages and good working conditions,” and does not have the authority to adjust or agree to a modification of his seniority rights under a contract between the union and the employer.

This action, though brought in a state court, comes within the ambit of § 301 (a) of the Labor Management Relations Act of 1947, 29 U.S.CA. § 185(a), and is controlled by federal law. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, 378 (1964)

In Aeronautical Indus. Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513 (1948), three former employees of Lockheed Aircraft Corporation brought suit against Lockheed challenging the validity, as to them, of an agreement between Lockheed and their union modifying the seniority provisions of a collective bargaining agreement that was in effect when the employes left the company to enter the military service. The right of each employe upon discharge from the service to restoration of his employment without loss of seniority was secured by § 8 of the Selective Training and Service Act of 1940, as amended. The contract modification agreed upon by the union and the employer during their absence in the military service “provided that ‘Union Chairmen who have acquired seniority shall be deemed to have top seniority as long as they remain Chairmen.’ In plain English this means that thereafter employees who served as union chairmen were entitled to be retained in case of layoffs regardless of their length of service in the plant.” 337 U.S. at 523-524, 69 S.Ct. at 1288. In upholding the modification the court said:

“It is of the essence of collective bargaining that it is a continuous process. Neither the conditions to which it addresses itself nor the benefits to be secured by it remain static. They are not' frozen even by war. * * *
“There are great variations in the use of the seniority principle through collective bargaining bearing on the time when seniority begins, determination of the units subject to the same seniority, and the consequences which flow from seniority. All these variations disclose limitations upon the dogmatic use of the principle of seniority in the interest of the ultimate aims of collective bargaining. * * *
“To draw from the Selective Service Act an implication that date of employment is the inflexible basis for determining seniority rights as reflected in layoffs is to ignore a vast body of long-established controlling practices in the process of collective bargaining of which the seniority system to which that Act refers is a part. * * *
“The agreements made by the Union with Lockheed represent familiar developments in the process of collective bargaining which the Selective Service Act presupposes and in the context of which it must be placed. * * *
“Of course, the Selective Service Act restricts a readjustment of seniority rights during the veteran’s absence to the disadvantage of the veteran. But it would be an undue restriction of the process of collective bargaining (without compensating gain to the veteran) to forbid changes in collective bargaining arrangements which secure a fixed tenure for union chairmen, whereby veterans as well as nonveterans are benefited by promoting greater protection of their rights and smoother operation of labor-management relations.
“All this presupposes, obviously, that an agreement containing the 1945 provisions expresses honest desires for the protection of the interests of all members of the union and is not a skillful device of hostility to veterans. There is not the remotest suggestion that the 1945 agreement was other than what it purported to he — the means for securing both to veterans and to nonveterans better working conditions through elected leaders not subject to the contingencies of a labor turnover.”

In Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1952), the Supreme Court upheld the authority under the National Labor Relations Act of a labor union to make a collective bargaining agreement with an employer giving its employes credit for pre-employment military service, to the prejudice of employes whose names had been on the seniority roster before they entered military service. Among the principles stated in reaching its conclusion the court said:

“Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.
“ * * * Seniority rules governing promotions, transfers, layoffs and similar matters may, in the first instance, revolve around length of competent service. Variations acceptable in the discretion of bargaining representatives, however, may well include differences based upon such matters as the unit within which seniority is to he computed, the privileges to which it shall relate, the nature of the work, the time at which it is done, the fitness, ability or age of the employees, their family responsibilities, injuries received in course of service, and time or labor devoted to related public service, whether civil or military, voluntary or involuntary. * *
“The National Labor Relations Act, as amended, gives a bargaining representative not only wide responsibility but authority to meet that responsibility.” (Emphasis ours.)

We come now to Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), the principles of which were held by the trial court to be controlling in this litigation. In that case two competing motor carriers, Dealers Transport Company and E & L Transport Company, divided territories. The employes of both were represented by the same union. As the shift in business in the Louisville area took place E & L began to lay off its employes there, and eventually those who otherwise could not have been absorbed by Dealers submitted to the local union a grievance in which they claimed the right to employment at Dealers through a merger of the respective seniority lists of the two companies. The dispute was carried through the contract-provided grievance procedure with the ultimate result that the E & L men prevailed. Though Dealers was a nominal party in the proceeding it “considered the dispute a matter for the union to decide” and was in substance a disinterested participant. 375 U.S. at 343, 84 S.Ct. at 368. Obviously it was the union that made the final decision in the proceeding.

This court, from which the appeal in Humphrey was taken, was of the opinion that the contract rights of the Dealers employes had been violated and that by reason of the antagonistic interests between its members the union was not in a position to give them fair “representation” in a grievance procedure. Our decision was reversed. On the first point, the Supreme Court placed a different construction from that reached by this court on a provision (§ 5) of the contract relating to seniority in the event of one employer’s absorbing the business of another. On the second point, the Supreme Court found that the grievance proceeding was an adequate avenue through which the union could properly exercise its right and authority to resolve an issue between two sets of its members.

Appellants distinguish Humphrey v. Moore on the basis of the specific contract provision (§ 5) in that case. True, in a footnote (375 U.S. at 345, 84 S.Ct. at 369, fn. 7) the court expressly said, “We need not consider the problem posed if § 5 had been omitted from the contract or if the parties had acted to amend the provision.” On the other hand, without that specific contract provision we think Humphrey may have presented a more serious question of contract violation, or to put it another way, the right of the union and the employer to amend the contract in the course of continuing collective bargaining, than does this case.

Our first conclusion is that the dovetailing of the seniority lists for Nos. 4 and 8 and No. 7 was neither a violation nor an amendment of the contract. When two mines become one they both lose their separate identities. Appellants would have it that only No. 7 lost its identity. It could be just as well argued the other way around. That the tipple is located at No. 8 does not alter the fact that Nos. 4, 8 and 7, being joined together in one operating unit, are now one mine. That is what the union decided, and if the question were before us on first impression, the union being denied any decision-making authority in the premises, that is what this court also would decide. Hence it was not necessary to amend the contract.

But we need not construe the contract ourselves. Applying the federal law as we construe it from the principles stated in the Supreme Court opinions herein cited, there being neither fraud nor bad faith, as bargaining representative for its members the union had the right and power to resolve this purely intra-union problem and, in the course of so doing, to effect an agreement with Eastern either interpreting or amending the contract accordingly. If a bargaining representative may alter seniority rights secured both by contract and by statute, as in Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1952), surely it must follow that it may do so when the rights are secured by contract only.

Proceeding further, we hold that it was not necessary for the dispute to be resolved through the grievance process. Though such a procedure may be “adequate” to the purpose, if the employer is willing to abide by the union’s decision there is no practical reason for proceedings that require its further participation. Whether the ample opportunity actually afforded the appellants in this case to be heard within the structure of the union was legally necessary in order to validate an agreement already made between Eastern and the union may be doubtful, but we are not required to reach the question.

Lastly, we think it is quite clear that the union did not in any sense fail in its duty of fair representation. As the court said in Humphrey (375 U.S. at 349, 350, 84 S.Ct. at 371-372), “we are not ready to find a breach of the collective bargaining agent’s duty of fair representation in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of employees against that of another. * * * Just as a union must be free to sift out wholly frivolous grievances which would only clog the grievance process, so it must be free to take a position on the not so frivolous disputes. Nor should it be neutralized when the issue is chiefly between two sets of employees. Conflict between employees represented by the same union is a recurring fact. To remove or gag the union in these cases would surely weaken the collective bargaining and grievance processes.”

The judgment is affirmed.

All concur.

      . Pertinent sections of the contract provide as follows:
      “SENIORITY
      “1. Seniority in principle and practice shall be recognized in the industry.
      “2. In all cases where the working force is to be reduced, employees in each job classification at a mine with the least service, shall be laid off first.”

      “8. Grievances under the seniority arrangements shall be handled in the usual way under the machinery of the contract providing for the consideration and disposition of grievances.”
      * * * * *
      “SETTLEMENT OF DISPUTES
      “Should differences arise between the Mine Workers and the Operator as to the meaning and application of the provisions of this Agreement, or should differences arise about matters not specifically mentioned in this Agreement, or should any local trouble of any kind arise at any mine, there shall be no suspension of work on account of such differences, but an earnest effort shall be made to settle such differences immediately:
      “First: Between the aggrieved party and the mine management.
      “Second: Through the management of the mine and the Mine Committee.
      “Third: By a Board consisting of four members, two of whom shall be designated by the Mine Workers and two by the Operators.
      “Should the Board fail to agree, the matter shall be referred to an umpire selected by said Board. Should the Board be unable to agree on the selection of an umpire, he shall be designated by the International President of the United Mine Workers of America and the President of the Operators’ Association affected. The decision of the umpire in any event shall be final.
      “District conferences may establish an intermediate board consisting of two (2) commissioners, one representing tbe Operators and one representing the Mine Workers with such power as said Conference may delegate.
      “Pending the hearing of disputes, the Mine Workers shall not cease work because of any dispute; and a decision reached at any stage of the proceeding shall be binding on both parties thereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.”
      * ⅜ * * ⅜
      “SETTLEMENT OF LOCAL AND DISTRICT DISPUTES
      “Should differences arise between the Mine Workers and the Operators as to the meaning and application of the provisions of this Agreement, or should differences arise about matters not specifi-eally mentioned in this Agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences immediately-
      “1. Between the aggrieved party and the mine managment.
      “2. Through the management of the mine and the Mine Committee.
      “3. Through District representatives of the United Mine Workers of America and a commissioner representative (where employed) of the coal company.
      “4. By a board consisting of four members, two of whom shall be designated by the Mine Workers and two by the Operators.
      “5. Should the board fail to agree the matter shall, within thirty (30) days after decision by the board, be referred to an umpire to be mutually agreed upon by the Operator or Operators affected and by the duly designated representatives of the United Mine Workers of America, and the umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and salary incident to the services of an umpire shall be paid equally by the Operator or Operators affected and by the Mine Workers.
      “A decision reached at any stage of the proceedings above outlined shall be binding on both parties hereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.”

      . For convenience, we shall call the system contended for by the Nos. 4 and 8 miners the “mine seniority plan” as opposed to the “payroll seniority plan” decided upon by the union, that being the descriptive terminology used in appellants’ brief. However, as hereinafter observed, the dovetailing of seniority lists upon consolidation of two mines into one is not inconsistent with our conception of a “mine seniority plan.”

      - § 301(a) of the LMRA does not exclude state court jurisdiction of suits for violation of labor contracts governed by federal law. Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, 486 (1962).

      . “Textile Workers Union of America v. Lincoln Mills of Ala., 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, of course, has long since settled that § 301 has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts.” Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 269, 9 L.Ed.2d 246, 250 (1962). Cf. Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Company, 369 U.S. 95, 82 S.Ct. 571, 576, 7 L.Ed.2d 593, 598 (1962), holding that “incompatible doctrines of local law must give way to principles of federal labor law.”

      . Moore v. Local Union No. 89, etc., Ky., 356 S.W.2d 241 (1962).

      . Cf. Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964), at 375 U.S. 351, 84 S.Ct. 372.


author: STEINFELD, Judge.

text:
    BOMANZI OF LEXINGTON, INC., Appellant, v. Ann C. TAFEL, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 30, 1967.

      William E. Sloan, Wylie & Sloan, Lexington, for appellant.
    William D. Grubbs, Woodward, Hobson & Fulton, Louisville, Herbert D. Sledd, Brown, Sledd & McCann, Lexington, for appellee.
   STEINFELD, Judge.

Ann Tafel, the appellee, sued Bomanzi, Inc. and Bomanzi of Lexington, Inc. to recover money due on a promissory note which was evidence of a debt of Bomanzi, Inc., to Ann. The trial court entered judgment against both defendants for the total amount for which she sued. Only Bomanzi of Lexington, Inc., has appealed.

Bomanzi, Inc., was insolvent and was indebted to many creditors including stockholders, all but one of whom held promissory notes. These are referred to as debentures. John Tafel, husband of Ann, was the one who held no note. The note on which Ann sued was issued to her at the same time as those to the stockholders. One John Marlowe was a large creditor of Bomanzi, Inc. On June 3, 1963, he offered to invest a substantial sum of money in a new corporation if Bomanzi, Inc., would convey all of its assets to the new corporation. On behalf of Bomanzi, Inc., the directors agreed on the condition that the new corporation assume and agree to pay all of the creditors of Bomanzi, Inc., excepting the indebtedness represented by the notes held by stockholders and the note held by Ann. All stockholders agreed to surrender their notes. Ann was not a party to this agreement and her husband had no power to agree for her. On June 7, 1963, Ann was requested to surrender her note but instantly refused. Pursuant to KIRS 271.415, on June 24, 1963, the Board of Directors of Bomanzi, Inc., resolved to make the transfer. Bomanzi of Lexington, Inc., was formed and on July 20, 1963, the entire stock of merchandise, fixtures and equipment of Bomanzi, Inc., were conveyed to it by a bill of sale. John Marlowe made the investment as he agreed. Advertisement of the transfer was inserted in the Lexington Herald Leader on July 28, August 1, August 4 and August 11, 1963. On July 9, 1963, Ann learned of this transaction and on August 1, 1963, through her attorney, she sent a written protest to Bomanzi of Lexington, Inc. She filed this action on September 25, 1963.

She demanded judgment against Boman-zi, Inc., for the amount of the note which it had promised to pay, together with interest thereon. She alleged that Bomanzi of Lexington, Inc., received a fraudulent conveyance from Bomanzi, Inc., in violation of KRS 378.010; that the transfer of assets to it was a preference in violation of KRS 378.060; and that there was a Bulk Sale without compliance with the provisions of KRS 355.6, a portion of the Uniform Commercial Code. She claims that each of the above theories entitled her to a judgment against Bomanzi of Lexington, Inc., for the amount of the note and the interest thereon until it is paid.

Bomanzi, Inc., did not answer. Bomanzi of Lexington, Inc., admitted the transfer occurred at a time when it knew the trans-feror was insolvent and unable to meet its liabilities. It attempts to justify the transaction because Bomanzi of Lexington, Inc., assumed all obligations of Bomanzi, Inc., except the debentures and neither Bomanzi, Inc., nor any of its stockholders received any consideration for the transfer except the satisfaction of not being “associated with or hav(ing) their names linked with a bankrupt or insolvent enterprise.” It also claims that Ann was guilty of laches in not taking action at an earlier date.

Ann and Bomanzi of Lexington, Inc., each moved for summary judgment and filed in support of their respective motions various affidavits, letters and other writings. The trial court granted a summary judgment in favor of Ann against Boman-zi, Inc. and Bomanzi of Lexington, Inc., jointly and severally for the full amount of the balance of her note together with interest thereon from its date until paid.

Only Bomanzi of Lexington, Inc., appeals. It claims that the summary judgment was erroneous in “that the Appellee has been permitted * * * to recover * * * from the new corporation by a personal judgment against it, when in fact, had the other principals been willing to let the old corporation collapse into insolvency, the Appellee would have taken nothing.” It argues that there was “no intent whatever to defraud Appellee, although it (the transfer of assets) was admittedly made without Appellee’s affirmative consent.”

Ann will prevail to the extent hereinafter decided, if sustained by any one of the three contentions which she asserts. She had the same legal right as any other creditor. Farmers Bank of Fountain Run v. Hagan, 242 Ky. 535, 46 S.W.2d 1084. We have concluded that the transaction was a preference in violation of KRS 378.060; therefore, it is unnecessary for us to decide whether the transfer was a fraudulent conveyance in violation of KRS 378.010 or that there was no compliance with KRS 355.6 (a bulk sale). The amount of the recovery by Ann would be the same — her pro-rata share of the assets of Bomanzi, Inc. In construing KRS 378.010 it has so been held in Ely & Walker Dry Goods Co. v. Freedberg, 226 Ky. 713, 11 S.W.2d 964; and re: KRS 378.060 in Union Trust & Savings Co. of Maysville v. Taylor, 142 Ky. 183, 134 S.W. 196 and May v. Pikeville National Bank, 218 Ky. 575, 291 S.W. 768. With respect to bulk sales, prorata distribution among creditors, but subject to priority, if any, was required before the adoption of the Uniform Commercial Code. Ford et al. v. Consolidated Grocery Company, 229 Ky. 510, 17 S.W.2d 448. That policy was continued by KRS 355.6-106(3).

Except as it might defeat valid claims of creditors, it is conceded that the directors of Bomanzi, Inc., were authorized by KRS 271.415 to make “A voluntary sale * * * of all the assets of (the) corporation * * * upon such terms and conditions as it deems expedient, * * *

Ann relies on KRS 378.060 which says in part that “any sale * * * made by a debtor * * * in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion, in whole or in part, of others, shall operate as an assignment and transfer of all of the property of the debtor, and shall inure to the benefit of all of his creditors * * *

There are certain statutory exceptions which are not applicable here. Ann argues that a transfer made by an insolvent corporation is presumed to have been made with the intent to prefer if the transfer in fact results in a preference. She cites Greathouse v. Millard, Ky., 320 S.W.2d 630 in which we said at page 632:

“ * * * it is generally held that a transfer made by an insolvent will be presumed to be made with such intent if in fact it does constitute a preference, and a man of ordinary prudence under like circumstances would know that the transaction would so operate. McKee v. Scobee, 80 Ky. 124, 128; Allen v. Dillingham’s Assignee, 104 Ky. 801, 808, 47 S.W. 1076, 1078; Union Trust & Savings Co. of Maysville v. Taylor, et al., 142 Ky. 182, 134 S.W. 196.”

There is no question whatsoever that the transfer resulted in preferring creditors to the exclusion of Ann who was a creditor of the same class. Without her consent the stockholders and directors of Bomanzi, Inc., had no authority to ignore its obligation to Ann. Stephens v. Allied Bldg. Credits, Inc., Ky., 265 S.W.2d 60.

Appellant argues that there must be actual intent to prefer. We find that since the result would be a preference, intent is apparent. In McKinney Deposit Bank v. Cyrus W. Scott Mfg. Co. (and consolidated cases) 207 Ky. 340, 269 S.W. 343 we said at page 344:

“But it is a well-settled rule that when a man is insolvent and executes a mortgage when he knows, or by ordinary care should know, his condition, he will be held to intend the necessary consequences of his act. The purpose of the statute is to secure equality between creditors. The thing it aims to accomplish is the prevention of the preference of one creditor over the others. If the statute was held to apply only where an actual intent to prefer one creditor to another appeared, its real purpose would be defeated; for its purpose is that there shall be no preference of some creditors to others by an insolvent.”

We hold that the “sale” to Boman-zi of Lexington, Inc., was a transfer within the meaning of KRS 378.060. Ann was not guilty of laches. She protested promptly and this action was filed timely. KRS 378.070(1). National Roofing Materials Co. v. Smith, 165 Ky. 848, 178 S.W. 1125; Gwinn Bros. & Co. v. Peoples General Store, et al., 269 Ky. 813, 108 S.W.2d 1001.

Appellant states that “Relief to set aside the transfer or to consider the sale void was not sought in the complaint, * * * The complaint is before us. After demanding judgment for $4,800.00 and interest from August 31, 1962, against Bomanzi, Inc., there is the further demand, “2. That the aforesaid transfer be declared void and inoperative as to the plaintiff and that the property transferred, or a sufficient amount thereof, be subject to plaintiff’s claim.” Obviously the claim that Ann was not seeking to void the sale is without merit. Alternately, Ann demanded judgment against Bomanzi of Lexington, Inc., for $4,800.00 with interest at the rate of 6% per annum from August 31, 1962.

The trial court erred in entering judgment against the new corporation for the full amount of Ann’s note together with interest thereon. The law stated in Evans v. Herbranson, 241 Iowa 268, 41 N.W.2d 113, 15 A.L.R.2d 925, 936, with respect to a bulk sale applies here:

“The Bulk Sales Law makes no provision for a personal judgment against a buyer for a creditor’s claim. Under section 555.4, 1946 Code, I.C.A., the buyer is to become a receiver and held accountable to the creditors for all the goods etc. and proceeds therefrom which come into his possession. The purpose of the Bulk Sales Law is to restore the status quo, so that the property may be subjected to the claims of creditors as though the sale had not been made. A creditor is entitled to no more. The receiver must account to him for his pro rata share, but a creditor is not entitled to a personal judgment against the purchaser-receiver for the amount of his claim or any part thereof, if he makes a proper accounting.”

The transferee is liable only to the extent of the value of the property received by it, and that liability is to the transferor’s creditors prorata. Southwestern Drug Corporation v. McKesson & Robbins, 141 Tex. 284, 172 S.W.2d 485, 155 A.L.R. 1056; 24 Am.Jur. 364 section 261. Bomanzi of Lexington, Inc., failed to make proper accounting.

The remedies contemplate liquidation of the assets transferred so that all creditors, according to their respective priority, if any, will share ratably. Katz v. Scott, 229 Ky. 739, 17 S.W.2d 1024; Kessler v. Tapp, 297 Ky. 607, 180 S.W.2d 552. Under the facts herein, appellant assumed a role equivalent to that of a receiver or trustee. Bomanzi of Lexington, Inc., was obligated to account to those creditors of Bomanzi, Inc., who had not forgiven their claims. Kessler v. Tapp, supra. The court below shall determine the amount, if any, which Ann would have received through a liquidation of the assets of Bomanzi, Inc. and a distribution to all creditors except the stockholders who had waived their right to participate. For the amount she would have received a judgment shall be entered against Bomanzi of Lexington, Inc.

The judgment is affirmed in making an award to Ann C. Tafel. It is reversed as to the amount adjudged, for proceedings consistent with this opinion.

All concur.


author: WALKER, Justice.

text:
    N. A. ANDRETTA, Petitioner, v. W. E. WEST et ux., Respondents.
    No. A-11539.
    Supreme Court of Texas.
    May 24, 1967.
    Rehearing Denied June 21, 1967.

      Edward Kliewer, Jr., and Joe T. Hood, Dallas, for petitioner.
    Wynne & Wynne, Gordon Wynne, Wills Point, for respondents.
   WALKER, Justice.

On the principal question presented by this appeal, we hold that the owner of a nonparticipating royalty interest is entitled, under the terms of his deed, to share in compensatory royalty payments made pursuant to an agreement between the lessee and the holder of the executive rights.

Mr. and Mrs. W. E. West, respondents, owned 100 acres of land. On September 4, 1942, they executed an oil, gas and other mineral lease on the property for a primary term of ten years and as long thereafter as production from the land continued. The lease provided for the usual one-eighth royalties on oil and gas, and stipulated that in the absence of drilling the lease would terminate unless a delay rental of $250.00 was paid annually. Superior Oil Company subsequently acquired the lessee’s interest. On March 22, 1943, respondents conveyed an undivided one-fourth non-participating royalty interest to S. H. Jenkins, and this interest was acquired by N. A. Andretta, petitioner, several days later.

There was never any production from the land. On August 31, 1944, respondents and Superior made the agreement which gave rise to the present suit. Most of the provisions of this instrument are quoted in the opinion of the Court of Civil Appeals. It recites that Superior had drilled a producing well on the land adjoining the West property, that a dispute existed between respondents and Superior as to whether the latter was obligated to drill an offset well on the 100-acre tract, and that the parties had composed their differences in the manner therein provided. Superior then agreed to pay respondents monthly “a lieu royalty in cash equivalent to one-eighth (⅛) of the proceeds from the sale of all oil produced and sold from” the well on the adjoining tract. It was further stipulated that such payments should be construed to be royalty payments made to lessor under the terms of the 1942 lease, that the beginning of operations for the drilling of a well on the 100-acre tract would relieve Superior of any obligation to make the payments, that Superior would have the right at any time to discontinue the payments by surrendering the lease in its entirety, and that the agreement “is an amendment of said lease, effective for the sole purpose of maintaining said lease in full force and effect during the performance of the agreements, terms and conditions hereinabove set forth, for the time and in the manner herein provided.” It is admitted that the lease continued in force until it was surrendered by Superior in July, 1957.

Pursuant to the terms of the 1944 amendment, which was promptly recorded, Superior paid a total of $27,978.16 to respondents during the period from August 1, 1944, to May 31, 1957. No payments were made to petitioner by either Superior or respondents. Petitioner did not learn of the amendment to the lease or the payments made to respondents until a few months before the present suit was filed. He originally sued respondents and Superior to recover one-fourth of the amount so received by respondents.

In an appeal from the order sustaining respondents’ plea of privilege, it was held that petitioner has no cause of action against Superior because he did not give notice of his interest as required by the terms of the lease. Andretta v. West, Tex.Civ.App., 318 S.W.2d 768 (wr. ref. n. r. e.). Petitioner then abandoned his suit against Superior and proceeded against respondents. The trial court concluded that petitioner has no cause of action against respondents, and that even if he did his claim would be barred by the two-year statute of limitations. Judgment was accordingly rendered that petitioner take nothing, and the Court of Civil Appeals affirmed. The intermediate court agreed with the first conclusion of the trial court and did not reach the limitation question. 402 S.W.2d 543.

Respondents contend, and the Court of Civil Appeals held, that the payments under the 1944 amendment were rentals rather than royalty. We do not agree. The instrument discloses on its face that there was a difference between the parties as to whether Superior was under a duty to drill an offset well on the leased premises. To settle this dispute they created a money substitute for actual production from the well which the lessee might have been compelled to drill. The monthly payments were based on production from the well on the adjoining property, which is characteristic of a “lieu” or “compensatory” royalty. It was agreed that the payments would maintain the lease in force even beyond the primary term, and this could not be accomplished by the payment of delay rentals. The parties further stipulated that payment of the compensatory royalty might be discontinued upon surrender of the entire lease, whereas the lease itself gave the lessee the right to relinquish part of the land and pay delay rentals on the remainder. It was also provided in the 1944 amendment that the payments should be construed to be royalty payments under the lease, and that the agreement was an amendment to the lease. We recognize that calling the payments royalty is not conclusive as to their true nature, but words of art are given considerable weight in determining the intention of the parties. Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143; Morriss v. First National Bank of Mission, Tex.Civ.App., 249 S.W.2d 269 (wr. ref. n. r. e.). In this instance the basis and agreed effect of the payments are such that the same constitute royalty and not delay rentals, and the descriptive term used by the parties is entirely accurate. See Morriss v. First National Bank of Mission, supra; Moses, “In Lieu” Royalty Agreements in the Oil Industry, 3 Houston Law Review 84.

The Court of Civil Appeals also held that under the terms of the royalty deeds, petitioner is not entitled to share in the payments even though the same do constitute royalty. It relied on cases such as Archer County v. Webb, 161 Tex. 210, 338 S.W.2d 435, and Campbell v. Dreier, Tex.Civ.App., 382 S.W.2d 179 (wr. ref. n. r. e.), where it was held that payment of shut-in gas royalty as provided in an oil and gas lease did not maintain a term royalty interest held under a deed stipulating that the same should continue so long as oil or gas was produced from the land. In each case the court pointed out that the duration of a term royalty is ordinarily governed by the provisions of the deed and not by the terms of a mineral lease on the same land, but neither of these decisions is persuasive here.

The granting clauses of the royalty deeds in the present case purport to convey “an undivided one-fourth interest in and to all of the oil royalty, gas royalty, and royalty in casinghead gas, gasoline, and royalty in other minerals in and under, and that may be produced and mined from” the 100-acre tract. It is unnecessary to determine the effect of this language, because the instruments also refer to the existing lease and provide that the sale “covers and includes the same percent interest as first herein-above named, of all the oil royalty and gas royalty and casinghead gas and gasoline royalty, and royalty from other minerals or products, due and to be paid under the terms of said lease.” The latter provision entitles petitioner to one-fourth of all royalties payable under the lease, including the substitute royalty paid in accordance with the 1944 amendment. See Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617; Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563; Hoffman v. Magnolia Petroleum Co., Tex.Com.App., 273 S.W. 828.

Respondents say that petitioner must look to Superior for payment of his share of the compensatory royalty. In support of this contention they cite Evans v. Opperman, 76 Tex. 293, 13 S.W. 312, and Patton v. Mitchell, Tex.Civ.App., 13 S.W.2d 146 (no writ). These cases hold that where there is no fiduciary relationship or privity of contract between claimants to a fund and one of them is paid by the person from whom it is due, the law will not imply an obligation on the part of the claimant who receives the money to hold the same for the other claimant. Our situation here is quite different. Respondents conveyed the royalty interest to petitioner’s grantor, and agreed that the holder of such interest should receive one-fourth of all royalty paid under the terms of the Superior lease. We have then both privity of contract and, as pointed out below, a confidential relationship between the parties.

In somewhat analogous situations, it is generally held that a vendor must account to his vendee for rents collected by the former which rightfully belong to the latter. See Rives v. James, Tex.Civ.App., 3 S.W.2d 932 (wr. dis.); Bandel v. Sabine Lumber Co., 194 La. 31, 193 So. 359; Beckwith v. Clark, 8th Cir., 188 F. 171; 7 Willis-ton, Contracts, 3rd ed. 1963, § 938. A co-tenant who receives rent from a third person for use of the entire property is accountable to the other tenants in common for their shares. See Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633, 66 A.L.R. 916; Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164; 20 Am.Jur.2d Co-tenancy and Joint Ownership, § 40. The surface owner is liable to the State for the latter’s share of bonus and rentals paid such owner by the lessee under a lease on mineral classified land. Shell Petroleum Corporation v. Tippett, Tex.Civ.App., 103 S.W.2d 448 (wr. ref.). We hold that in view of the relationship between the parties to the present case, respondents are accountable to petitioner for the latter’s one-fourth of the compensatory royalty payments. See Restatement of Restitution, § 125. This brings us to the limitation question, which involves a consideration of the relationship existing between the parties.

An amicus curiae suggests that this case presents an appropriate opportunity to define the precise standard of conduct required of the holder of the executive right. We are here concerned with a relatively narrow aspect of that problem. Since no attack is made on either the original lease or the 1944 amendment, it is unnecessary to determine whether respondents violated any duty to petitioner in the execution of these instruments.

The holder of the executive right has the power to make and amend leases affecting the enjoyment of a non-participating royalty interest owned by another. It was in the exercise of such power that respondent's amended the lease to provide that the same might be maintained by the payment to them of the full compensatory royalty. The owner of a non-participating royalty interest would not ordinarily learn of such an arrangement unless he was advised by one of the parties. When we consider the power entrusted to respondents and their superior knowledge, it is clear to us that they were in a confidential relationship with petitioner in so far as the lease amendment and the payments thereunder are concerned.

We are not prepared to say, on the facts developed in the present case, that respondents were under an absolute obligation to search the records and determine the name and address of the person entitled to the royalty under their deed to Jenkins. If they knew the name and whereabouts of the royalty owner, it was their duty to notify him of the lease amendment and account to him for his share of the payments as received. See Cobb v. First National Bank, 91 Tex. 226, 42 S.W. 770; Baker v. Cook, Tex.Com.App., 15 S.W.2d 600. If they did not know his name and address, they nevertheless are chargeable in equity as constructive trustees with the duty to hold one-fourth of the royalty subject to the demand of the rightful owner. See Pomeroy, Equity Jurisprudence, 5th ed. 1941, § 1047.

The statute of limitations began running against petitioner when he learned that respondents had received and were claiming royalty to which he is entitled or when he had information that would have led a person of ordinary prudence to a discovery of the facts. Bogert, Trusts and Trustees, 2nd ed. 1962, § 953. That is the effect of the rule as stated in Cole v. Noble, 63 Tex. 432, and Wilson v. Simpson, 80 Tex. 279, 16 S.W. 40, where the court said that while the statute will begin to run in favor of a constructive trustee from the time the plaintiff could have indicated his right by action or otherwise, the trustee must bring himself clearly within the position of a continued and adverse claimant and the plaintiff must have no reasonable excuse for failing to prosecute his claim within the proper time. See Collins v. Griffith, Tex.Civ.App., 125 S.W.2d 419 (wr. ref.). Petitioner did not learn of the lease amendment or the payments to respondents until shortly before he instituted suit. His only sources of information were respondents, Superior, and the recorded lease amendment. He was not charged with constructive notice of the amendment, which was executed and recorded after he acquired his royalty interest. See Article 6631, Vernon’s Ann.Tex. Civ.Stat.; White v. McGregor, 92 Tex. 556, 50 S.W. 564. There was no occasion for him to search the records or make inquiry of either respondents or Superior when he did not know or have any reason to suspect that they had agreed upon monthly cash payments as a substitute for production from the leased premises. He did write Superior in 1945 advising that he owned the royalty interest and asking whether the company contemplated drilling on the West tract. The company replied that it had no plans to do any additional drilling in the area but did not mention the lease amendment or the payments to respondents. In our opinion petitioner’s cause of action is not barred by the statute of limitations.

The judgments of the courts below are accordingly reversed, and the cause is remanded to the district court with instructions to enter judgment for petitioner.


author: CALVERT, Chief Justice.

text:
    Melba Jean PAGE, Relator, v. Honorable Charles SHERRILL et al., Respondents.
    No. B-184.
    Supreme Court of Texas.
    May 31, 1967.

      Nugent & Haston, Cleo Haston, Kerr-ville, for relator.
    Lee & Lee, Jack Lee, Mason, for respondent.
   CALVERT, Chief Justice.

This is an original proceeding in which relator seeks a writ of mandamus to compel the respondent, Honorable Charles Sher-rill, Judge of the 112th District Court of Texas, to vacate a temporary child custody order.

On July 7, 1966, the marriage of Melba Jean Page, relator, and William E. Page was dissolved by a decree of divorce entered by the Second 38th District Court of Kerr County, Texas. The custody of the parties’ two minor children was awarded to relator.

On September 20, 1966, William E. Page filed a petition in the Second 38th District Court alleging a change of conditions, asserting that relator was unfit to have custody of the children, and seeking a change of custody to his sister and brother-in-law, Maxine and Harry Powell. On October 10, 1966, relator answered plaintiff’s petition with special exceptions and a general denial. On January 26, 1967, William E. Page filed his first amended original petition in which Maxine and Harry Powell joined as plaintiffs.

On March 16, 1967, plaintiffs filed their second amended original petition, alleging that relator was unfit as a custodian and citing acts demonstrating custodial unfitness performed by relator in Kerrville and Fredericksburg, Texas. Alleging that relator was then residing in Alpine, Texas, plaintiffs asserted that “if said children remain [in Alpine] away from friends and relatives * * * and away from their family doctor, * * * because of the habits, attitude and conduct of [relator], the said minors * * * are in danger of suffering irreparable and permanent injuries to their health and * * * it is dangerous for them to be in such condition ⅛: * * »

Plaintiffs’ petition was presented to Judge Sherrill who had been assigned temporarily to the Second 38th Judicial District. The assignment of Judge Sherrill appears regular, and his right to sit as Judge of the Second 38th Judicial District is not questioned by the parties.

On March 16, 1967, Judge Sherrill issued an order, without notice, commanding the sheriff or any authorized officer in the county where the children were found to take them from the custody of relator and deliver them to Kerrville, Texas, to the Supervisor of Child Welfare who, in turn, was “to place them under the care, custody and control of such person or persons in Kerrville, Texas, who, in his opinion will, care for them to the best interest of said children during the pendency of this suit, or until further order of this court.” The order was based upon a finding, made by Judge Sherrill “from the verified allegations of said petition,” as follows:

“ * * * the Court is of the opinion that the health and welfare of the two minor children, Linda Ann Page and Glenda Ann Page are in danger, under the present circumstances; that it would be to the .best interest of the health and welfare of said minors for the present custody to be changed during the pendency of this suit, and there is danger, under the present circumstances, of said children suffering irreparable injury under the present situation.”

; In the same order, Judge Sherrill commanded the relator to appear in the District Court of Kerr County, Texas, on March 20, 1967, and show cause, if any, why the custody of the two children should not remain as ordered during the pendency of the suit.

On March 17, 1967, pursuant to the court’s order, the children were taken from relator who resided in Alpine, Texas, and were turned over to the Supervisor of Child Welfare in Kerrville, Texas.

On March 20, 1967, relator appeared in-the District Court of Kerr County and filed a motion to quash the court’s order of March 16, 1967. The court proceeded to-hear argument on relator’s motion to quash. The court then indicated that it was ready to hear evidence on the show cause order of March 16, and plaintiffs’ counsel offered to go forward with evidence to substantiate such order. Relator’s counsel,, however, refused to participate in a hearing on the show cause order, asserting that to do so would constitute a waiver of relator’s rights. The court overruled relator’s-motion to quash. Relator then brought the present mandamus action to vacate the temporary child custody order of March 16.

Relator contends first that a district court has no power to take minor children from their parents without notice. While it is true this power has not been specifically granted, general authority for the exercise of such power is set forth in the Constitution of Texas:

“The District Court shall have * * * original jurisdiction and general control over * * * minors under such regulations as may be prescribed by law.”' Tex.Const. Art. V, § 8, Vernon’s Ann.St..

It was early declared that the foregoing ■constitutional provision placed jurisdiction over the custody of minors in the district courts and empowered those courts to transfer such custody. See Ex parte Reeves, 100 Tex. 617, 103 S.W. 478 (1907). It has long been recognized that the district courts have broad discretion in determining the custody of children, even to the extent of taking the custody of a minor from its own parents. Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894). Moreover, the power may be exercised as an incident to the granting of a divorce, Art. 4639, Vernon’s Texas Civil Statutes, or it may be exercised in an independent habeas corpus proceeding. Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949).

There would seem to be no room for doubt of the power of a court to enter an order, without notice to the parents, for the temporary custody of a child of parties to a pending suit for divorce. Art. 4639, Vernon’s Texas Civil Statutes, confers power on a divorce court to make temporary orders respecting the welfare of children of the parties in the broadest possible language. The article provides:

“ * * * The court shall have power, in all divorce suits, to give the custody and education of the children to either father or mother * * * to be determined and decided on the petition of either party; and in the meantime to issue any injunction or make any order that the safety and well-being of any such children may require

The express grant of power to make any order that the safety and well-being of children may require, carries with it by necessary implication the power to make temporary custody orders without notice. And just as the statutory grant of power to the district courts to adjudicate the custody of children in divorce actions did not preempt their power to adjudicate custody in independent suits, neither does the statutory implied grant of power to make temporary custody orders in divorce suits, without notice, preempt the power of the courts to make such orders, without notice, in independent custody proceedings.

Power of the district court to enter an emergency custody order, without notice, when no valid suit for divorce is pending was upheld in Green v. Green, 146 S.W. 567 (Tex.Civ.App.—Amarillo 1912, writ dism’d). In that case the trial court granted an injunction on petition of a wife, without notice to the husband, commanding the husband to desist from removing their children from the county and ordering him to deliver one of the children to the wife. The court of civil appeals held that it was within the discretion of the district judge to enter such an order as was necessary “to properly guard the welfare of the children until a final hearing could be had on the [custody] issue.” Green v. Green has been cited with approval by this court on at least two occasions. See Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953). Cf. Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 113 A.L.R. 889 (1937); Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286 (1920).

Since the district courts are vested with general supervisory control of minors, they are charged with the profound responsibility of protecting their health and safety. Effective discharge of this responsibility under situations of emergency will sometime demand immediate action by the courts. Such action may, by necessity, consist of a temporary taking of a child from the possession of its legal custodian, with or without notice, pending a full hearing. It follows that the district court’s power to enter such temporary orders is implied since it is necessarily incidental to the power of general control over minors granted to the district courts by section 8 of Article V of the Texas Constitution.

Relator contends further that the taking of her children without notice was a violation of due process, relying principally upon the authority of Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). In that decision the United States Supreme Court held that failure to notify a divorced parent of the pendency of proceedings for the adoption of his child constituted a deprivation of due process of law. The Court stated that without doubt notice is required where “the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies.” Moreover, the Court held that the constitutional infirmity resulting from failure to give notice could not be cured by a subsequent hearing on a motion to set aside the decree; particularly since the burden of proof, normally upon the parties seeking the adoption, is shifted in the subsequent hearing to the party who had lost parenthood. This burden, the Court observed, “would not have been imposed upon him had he been given timely notice in accord with the Constitution.”

In contrast to Armstrong, the present case presents no violations of due process. The court’s order to take the children from relator’s custody, although without notice, is purely a temporary order; it does not purport to be a final adjudication of relator’s rights. Clearly the order contemplates only a temporary interruption of custody to be followed by proper notice, appropriate pleadings, and a full hearing in which the burden of proof will not be upon relator but upon the parties seeking a change of custody.

We hold that the district court had the power to issue the temporary order of March 16, 1967. Moreover, the court did not abuse its discretion in issuing the order, and neither does the order deprive relator of due process of law.

The writ of mandamus is denied.

      . Emphasis ours.