author: DOERNER, Commissioner.

text:
    Paul J. TOENJES and Dolores J. Toenjes, Plaintiffs-Respondents, v. L. J. McNEARY CONSTRUCTION COMPANY, a Corporation, Defendant-Appellant.
    No. 32264.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.

      Ziercher, Tzinberg, Human & Michen-felder, Clayton, for defendant-appellant.
    Sullivan & Joyce, St. Louis, for plaintiffs-respondents.
   DOERNER, Commissioner.

Paul J. Toenjes and Dolores J. Toenjes, his wife, sued the L. J. McNeary Construction Company, a corporation, and L. J. Mc-Neary, its principal stockholder, for $9500 actual and $20,000 punitive damages for fraud arising out of plaintiffs’ purchase of a house and lot from the Construction Company. The court sustained defendant’s motion for a directed verdict at the close of all of the evidence as to McNeary but overruled it as to the corporation. A verdict in favor of plaintiffs for actual damages of $7800 and punitive damages of $1.00 was returned by the jury, and defendant Construction Company appealed from the resulting judgment.

The L. J. McNeary Construction Company was the developer of a subdivision in St. Louis County named Tara South III. Their interest having been aroused by a newspaper advertisement, plaintiffs visited the subdivision on November 14, 1959, and talked to Harry Freeman, one of defendant’s salesmen, in the basement of a display house. Plaintiffs selected a lot marked 49 on the plat shown them, and then accompanied Freeman outside to inspect the location they had chosen. Because the street to that point was not paved and the ground was muddy they were unable to walk to Lot 49, but Freeman pointed to an identifying object and told plaintiffs that the lot was in that area. Plaintiffs observed that the lot sloped from the front towards the back, and that the decline was particularly steep at the rear, ending in a creek or drainage canal. Because of the smoothness of the land, which did not look like the natural terrain, Toenjes questioned Freeman about the ground. Freeman assured plaintiffs that there had been no fill placed on the lot except for that which had been obtained when the street was graded, and that the lot was composed of sound and firm ground “ * * okay for residential use.”

Plaintiffs on the same day signed a sales contract by which they agreed to purchase for $13,600 Lot 49 and a certain type of house to be erected thereon by defendant, and made an earnest money deposit of $10.00. The contract provided that plaintiffs’ financing would be through an FHA loan, which defendant was to arrange for them. On December 8, 1959, plaintiffs paid $390 as additional earnest money. In the Spring of 1960, when construction of the house had not begun, Toenjes called defendant’s office several times and spoke to a Mr. Boehm. Boehm informed him at different times that there had been a delay in obtaining FHA financing; that the FHA required more soil tests; and that they wanted to make sure that the ground was good and firm. Plaintiffs were under pressure to vacate their apartment, and eventually Boehm told them that since they had to move defendant could obtain a conventional-type loan for them. Accordingly, on June 19, 1960, plaintiffs executed a new sales contract, conditioned on obtaining conventional-type financing, in which the purchase price of the lot and their down payment remained the same, but the additional amount to be paid on the closing was increased from $1600 to $2400, and the period the loan was to run was reduced from 30 years to 25.

Thereafter defendants built the house and sodded the lot. The sale was closed on September 7, 1960, on which occasion Toen-jes again asked Freeman about the lot, whether it was good, firm ground and whether they would have any problem with it, and the latter assured him that it was good, firm ground. Plaintiffs moved in on September 9, 1960. About a month later, the day after a rain, a hole approximately the size of a water bucket appeared in their backyard. Plaintiffs complained to defendant, who filled and sodded it. About a week later a much larger hole appeared in the same spot, and though defendant promised to again repair it the hole was not filled. In the latter part of November, on a Sunday morning, defendants were awakened by a sound like a huge waterfall, and upon looking out the window towards their backyard saw a column of water shooting up 2 to 3 feet high at the place where the previous holes had developed. The water then ran down the slope to the drainage canal at the rear of the lot. Toenjes contacted defendant, and after some delay four of defendant’s employees came to the scene. In December or January, 1961, defendant filled in the hole and the gully which had been eroded with dirt, logs, boards and rocks, and resodded the area. On Sunday, March 19, 1961, after it had rained the previous day, a column of water again shot out of the ground at the same place and washed out a much larger hole. Defendants were advised of the second erosion but did not correct it and it remained at the time of trial. Mr. Lawrence McNeary, president of defendant Construction Company, told Toenjes that the water was coming from a sink hole located on the property of Behnke Builders, another developer. In April, 1961, a second washout occurred at still another place, partly on the western side of plaintiffs’ lot but the major portion on lot 48 owned by their neighbors, the Desnoyers. In September, 1962, a stilling basin and standpipe was built by the Construction Company in the washout between lots 48 and 49, with an outlet to the drainage canal. Since the stilling basin was built no water has erupted from the original washout on plaintiffs’ lot, but when it rains heavily the soil erodes into the hole, which measured 27 feet at its widest part and is 28 feet from the rear of their house. Toenjes has used rocks and wood in an attempt to prevent further erosion and erected a fence around the hole to protect their young children.

Patterning their two verdict directing instructions after MAI 23.05, plaintiffs hypothesized in Instruction No. 3 that defendant represented to them that Lot 49 was composed of sound and firm ground for residential use, and in Instruction No. 5 that there was no fill on Lot 49 other than what was taken from the grading of the street in the subdivision. Those instructions are the subjects of defendant’s first two points, which we will consider in the order presented.

The nine elements and essentials of an action for fraud are so well known as not to require reiteration. Yerington v. Riss, Mo.; 374 S.W.2d 52, 57; 37 C.J.S. Fraud § 3, pp. 215, 216. The first is that the representation relied on was made. Defendant readily concedes in its brief that plaintiff produced' direct evidence that both of the hypothesized representations were made. But as to the second element, that of the falsity of the representation, defendant initially contends that the trial court erred in overruling its motion for a directed verdict, and in submitting Instruction No. 3 to the jury, since the evidence failed to show that Lot 49 was not composed of sound and firm ground for residential use. This assignment necessitates a further statement of the evidence.

Howard Weinreich, plaintiffs’ witness, who had lived for 24 years on an adjoining tract, testified that he was familiar with defendant’s land before it had been subdivided, and that he had hunted on it many times during that period. He stated that prior to the grading there had been a 4 foot deep cavity or washout in the rock in the vicinity of the present Lots 48, 49 and SO, and that after a rain water came out of an opening, visible in the rock, and washed down the hill to the creek. It took about an inch of rainfall to result in water being emitted from the opening, he said, and the amount discharged varied with the amount of rain. Weinreich related that he saw the grading done when the defendant was developing the subdivision and that fill was placed on Lots 48, 49 and 50 to a depth of 20 feet in places. He stated in effect that the place where the water came out of the rock before the development was the same place from which it erupted after the development, and explained that he could locate the area by sighting down a driveway on an adjoining tract. On cross-examination, when asked whether there was any other way he could locate the area, he answered: “Well, sir, I kind of watched that spot because I expected them to have trouble with that amount of water that came out of there at times I seen. I thought they would probably have trouble filling it up.”

Defendant takes the position that the representation proven related solely to the compaction of the fill that was placed on the lot, and in that connection stresses its own evidence to the effect that the fill was compacted to comply with the standards of the FHA. We do not share defendant’s narrow view. The representation proven and hypothesized in Instruction No. 3 was not merely that Lot 49 was composed of sound and firm ground, but that it was sound and firm ground “for residential use.” As plaintiffs point out, the representation went to the entire lot, and was not confined to that portion upon which the house was built. And the quoted phrase is important, for “ * * * The truth or falsity of representations is to be judged in the light of the meaning which plaintiff would reasonably attach to them in the existing circumstances. * * * ” 37 C.J.S. Fraud § 17, p. 251, and the words employed must be considered against the background and in the context in which they were used. Emily v. Bayne, Mo.App., 371 S.W.2d 663. Here plaintiffs were interested in buying a home for themselves and their children, and their inquiries were directed towards ascertaining the suitability of the lot for that purpose. Defendant assured them, according to plaintiffs’ evidence, that the ground was sound and firm, “ * * * okay for residential use.” Among other meanings ascribed to the word “sound” is “Free from flaw, defect, or decay; perfect of the kind; undamaged or unimpaired; * * *” Webster’s New International Dictionary, Second Edition. Regardless of how well the defendant may have compacted the fill on Lot 49, we are of the opinion that from plaintiffs’ evidence that the fill was placed over a hole or cavity from which underground water was emitted after a rain, the jury could reasonably find that the lot was not composed of sound and firm ground, suitable for residential use. And since the plaintiffs’ evidence was sufficient to make a submissible case as to that representation, the trial court did not err in overruling defendant’s motion for a directed verdict, or in submitting Instruction No. 3 to the jury.

The representation submitted in Instruction No. 5, it will be recalled, was that there was no fill on Lot 49 other than what was taken from the grading of the street. We note, in passing, that that representation was not pleaded in plaintiffs’ petition, but no complaint on that score was raised below or is made here. Pointing to the sixth paragraph of the instruction, which required the jury to find that as a direct result of such representation the plaintiffs were damaged, defendant contends that the court erred in overruling its motion for a directed verdict, and in submitting Instruction No. 5 to the jury, since the evidence failed to show that the fill, regardless of its source, was the cause of plaintiffs’ damage. Inasmuch as we have held that plaintiffs made a submissible case on the representation hypothesized in Instruction No. 3, and defendant’s motion for a directed verdict was general in nature, it follows that the court did not err in overruling defendant’s motion. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Nelson v. Wabash R.R. Co., Mo., 300 S.W.2d 407.

However, the sufficiency of the evidence to support the giving of Instruction No. 5 presents a more serious question. The ninth and last essential element of actionable fraud is that of the hearer’s proximate and consequent damage. Yerington v. Riss, Mo., 374 S.W.2d 52; 37 C.J.S. Fraud § 3, p. 216. As stated in 23 Am.Jur., Fraud and Deceit, § 172, p. 987, quoted with approval in Lammers v. Greulich, Mo., 262 S.W.2d 861, 864: “* * * ‘In contradistinction with trespass and other direct injuries for which the complainant is awarded nominal damages if he should fail to plead and prove actual damage, deceit belongs to that class of tort of which pecuniary loss constitutes a part of the cause of action.’ * * * ” Hence proof of substantial injury and damage is essential to recovery in an action for fraud and deceit, Dolan v. Rabenberg, 360 Mo. 858, 231 S.W.2d 150; and since a failure to establish any one of the essential elements of fraud is fatal to a recovery, Powers v. Shore, Mo., 248 S.W.2d 1; Bayer v. American Mut. Cas. Co., Mo., 359 S.W.2d 748; the general rule is that no action for damages may be maintained where the plaintiff has not sustained any damages as a result of the fraud charged. Bales v. Lamberton, Mo., 322 S.W.2d 136; Dolan v. Rabenberg, supra.

It is important to note the narrow scope of the representation hypothesized in Instruction No. 5. The representation submitted therein was not that no fill had been placed on Lot 49. It could not have been, for from Toenjes’ own testimony it is apparent that at the time he first viewed the lot he was fully aware that the natural terrain had been altered, and that some fill had been placed on the plot. Nor did the representation relate to the depth of the fill. The representation actually proven, and submitted in Instruction No. 5, related solely to the source of the material; i. e., that the only fill on Lot 49 was that which had been derived from the grading of the street. While there was some evidence that the more elevated part of the subdivision was graded down, the record is far from clear as to the actual source of the fill which was placed on Lot 49. But assuming that the representation was false, since no issue of its falsity is raised, and that the fill placed thereon came from some source other than the street, we are unable to see how that fact caused the plaintiffs to suffer any injury or damage. The real cause of their damage was that fill had been placed over a natural outlet from which water was emitted after a substantial rainfall. The washout which occurred on plaintiffs’ lot was the inevitable result of water seeking release. The eruption of the water and the hole which resulted would have happened whether the fill came from the street or from another source. Hence there was no causal connection shown between the representation hypothesized and the plaintiffs’ injury. Bales v. Lamberton, Mo., 322 S.W.2d 136. Nor was there any evidence that the damages sustained were the direct and proximate result of the fraud submitted. Bell v. Butte Investment Co., Mo., 250 S.W. 381. Lacking such proof no action on the representation submitted could be maintained. Mills v. Keasler, Mo., 395 S.W.2d 111; Bales v. Lamberton, supra; Lammers v. Greulich, Mo., 262 S.W.2d 861. And since there was no evidence to support the giving of Instruction No. 5 its submission constituted prejudicial error. Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Hart v. Midkiff, Mo., 321 S.W.2d 500; Switzer v. Switzer, Mo., 373 S.W.2d 930.

On the measure of damages plaintiff offered and the court gave Instruction No. 7, copied from MAI 4.01, by which the jury was told that if it found the issues in favor of plaintiffs then it must award them such sum as it believed would fairly and justly compensate plaintiffs for any damages it believed they sustained, “ * * * and are reasonably certain to sustain in the future * * * ” as a direct result of the occurrence mentioned in the evidence. Defendant asserts that the court erred in giving Instruction No. 7 for the same reason urged as to Instruction No. 5, that the plaintiffs failed to prove that any damage resulted from the representation submitted in the latter instruction. What we have said regarding Instruction No. S applies with equal force to the submission of Instruction No. 7. Defendant also complains that it was prej-udicially erroneous to include the quoted words concerning future damages (bracketed as optional in MAI 4.01 and footnote 2) because plaintiff failed to introduce any evidence as to such damages. As plaintiffs point out, no specific objection of that nature was made at the trial before submission to the jury, and no such specific allegation of error was set forth in defendant’s motion for a new trial. Accordingly, the objection was not preserved for review. Civil Rule 79.02, V.A.M.R.; Moll v. Springdale Park, Inc., Mo., 395 S.W.2d 126.

The remaining assignments concern matters not likely to again occur in the event of a new trial, and therefore need not be considered.

For the reasons stated the judgment is reversed and the cause remanded.

PER CURIAM.

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

Accordingly, judgment is reversed and the cause remanded.

ANDERSON, Acting P. J., RUDDY, J., and LACKLAND BLOOM, Special Judge, concur.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    Ex parte John Sherman MILES.
    No. 24585.
    Kansas City Court of Appeals. Missouri.
    Aug. 11, 1966.

      Lewis E. Pierce, Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for petitioner.
    Lawrence F. Gepford, Jackson County Pros., R. Bruce Sears, Asst. Pros. Atty., Kansas City, for respondent.
   ORIGINAL PROCEEDING IN HABEAS CORPUS

BLAIR, Judge.

This is an original proceeding in habeas corpus by which the petitioner, John Sherman Miles, seeks to be discharged from the custody of Arvid Owsley, Sheriff of Jackson County, who restrains him of his liberty by virtue of a commitment for contempt entered against him by the Circuit Court of Jackson County on a charge and judgment that Miles attempted to tamper with a juror and thereby to interfere with the administration of justice. The circuit court sentenced him to confinement in the county jail for 12 months and to pay a fine of $1,000.00. Sufficient it is to say that appropriate pleadings have put this proceeding properly at issue and that it has been submitted to us on these pleadings, the transcript of testimony on which the trial court based its commitment, the commitment itself, and the oral arguments and written briefs in this court.

Our view of this controversy requires that we set out the commitment in full to enable easy comparison of its recitals with the observations and rulings we make in deciding this proceeding. Its recitals follow:

“Now on this 30th day of March, 1966, the Court having heretofore on March 23, 1966, heard the evidence in this matter and taken the same under advisement, now on this day being fully advised, finds beyond a reasonable doubt as follows :
“1. That on January 31, 1966, John Sherman Miles, contemnor herein, made two telephone calls to one Cecil L. Wendleton, a person acquainted with one Fred L. Johnson, who was on that date serving as a juror in criminal cause C-34186 entitled State of Missouri vs. John Sherman Miles, which cause was then being tried in Division No. 11 of this court before the Honorable J. Donald Murphy; that in said telephone conversations, contemnor herein, requested and solicited the said Wendleton to attempt to bribe and tamper with said juror Johnson by offering to pay two hundred dollars each to said Wendleton and Johnson, if said juror Johnson by his conduct could in some manner obtain a mistrial in the criminal case then being tried, and contemnor requested said Wendleton to contact said juror Johnson and inform him of the proposed bribe.
“2. That on the same date said Cecil L. Wendleton was also contacted on the telephone by one A1 Sullivan, a person with whom contemnor was acquainted, and that said Wendleton was asked by Sullivan to contact juror Johnson on behalf of the contemnor herein who was the defendant in the criminal cause then on trial.
“3. That the said Cecil L. Wendleton did contact juror Johnson pursuant to Sullivan’s request and talked to him about the case in which Johnson was then sitting as a juror, and attempted to influence said Johnson’s judgment as a juror by telling him that he, Wendleton, was personally acquainted with John Sherman Miles, and that he would appreciate it if Johnson would stand up and say a good word for Miles.
“4. That in addition to the two telephone calls made directly by contemnor to Wendleton, contemnor Miles procured the said Sullivan to call Wendleton and ask Wendleton to contact juror Johnson with the intention of affecting said juror Johnson’s judgment in the case in which he was then sitting as a juror.
“5. That by reason of the foregoing facts, contemnor is guilty of an attempt to tamper with the said juror Fred L. Johnson, and such conduct on the part of contemnor constitutes a criminal contempt on this court and an interference with the administration of justice.”

The petitioner and the respondent are in agreement that the commitment is for indirect criminal contempt and they are correct. Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 996-998, 15 L.R.A.,N.S., 389; Curtis v. Tozer, Mo.App., 374 S.W.2d 557, 568. The petitioner contends that a review by us of the evidence before the committing court will establish that it was insufficient to support the commitment and therefore that he is entitled to be discharged. Although the petitioner and the respondent are in disagreement concerning the extent of the review we must make of the evidence, an unvarying line of decisions firmly establishes the rule that the commitment is not conclusive on us and that it is our duty to go behind its recitals and to analyze all of the evidence on which they are based and to determine whether they are supported by the evidence. Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 41 L.R.A.,N.S., 478; Osborne v. Purdome, Mo., 250 S.W.2d 159; Curtis v. Tozer, supra, 374 S.W.2d l. c. 570. Furthermore, if we find that the recitals of the commitment are supported by the evidence, we must further find that such evidence establishes petitioner’s guilt of indirect criminal contempt beyond a reasonable doubt. In Curtis v. Tozer, supra, l. c. 581, the St. Louis Court of Appeals, dealing with a habeas corpus proceeding brought by a number of petitioners committed for indirect criminal contempt, said: “Those jurisdictions in which contempt proceedings are regarded as quasi-criminal in nature require a standard of proof greater than a mere preponderance of the evidence but less than beyond a reasonable doubt. 12 Am.Jur., Contempt, Sec. 75. We are spared the difficulties attendant upon putting into words a degree of proof that would be between those poles. In Missouri, although we deny that such proceedings are criminal in nature, Osborne v. Purdome, Mo., 244 S.W.2d 1005, l. c. [8, 9] p. 1012, 29 A.L.R.2d 1141, we require that guilt be proved beyond a reasonable doubt. Osborne v. Purdome, Mo., 250 S.W.2d l. c. [11] p. 163.” Following this declaration of the law, the court examined the testimony for and against each petitioner and determined as to each whether he was guilty beyond a reasonable doubt. The petitioners not shown to be guilty beyond a reasonable doubt were discharged.

The relevant evidence we must review was as follows: Fred L. Johnson testified that on January 31, 1966, he was serving as a juror in the Circuit Court of Jackson County in a criminal case entitled “State of Missouri v. John Sherman Miles”, the petitioner. The trial commenced on that day and was recessed at 4:30 P.M. until the next day. Johnson went home and shortly received a telephone call from Cecil Wendleton who worked with him as a meat cutter at Topper’s Food Market in Kansas City. Asked what the nature of the call was, he testified “Well, he asked me what I was doing, how the trial was proceeding, and I proceeded to ask him what trial he meant. Kind of caught me off guard wondering how he knew I was on a trial, being as I was just going down for jury duty. So I proceeded to ask him. He said the trial you are on. I said ‘What trial do you mean?’ He said ‘John Sherman’s trial’. I said ‘How do you know that?’ He said, ‘I just know it.’ I says, Well, Cecil you will have to tell me because this could have some bearing on my thought as far as this man’s trial. I am supposed to be able to have a clear conscience on the man’s trial. * * * I just told him that I had to know because it could have a bearing on the trial, and I wanted to give a fair decision to this man, as fair as I could, and I was told when the trial started that if I knew anybody that knew anybody on the trial that I shouldn’t be on the jury.” According to the record, this is the extent of the conversation Johnson said he had with Wendle-ton that day. However, Johnson testified that the conversation “worried” him and the next morning he called Wendleton “and told him exactly that I needed to know what I asked him the day before, and I said, I just asked him if anybody had wanted me to do anything and he said no, that he was just wondering how the trial was going.” When he. went to court that morning he informed the judge of these conversations and a mistrial was declared.

Cecil Wendleton testified that on January 31, 1966, “about 5:15” P.M. one A1 Sullivan telephoned him. The testimony of what Sullivan said to Wendleton during this call is woefully sketchy, obscure and unsatisfactory. The most that was elicited from Wendleton regarding the subject of Sullivan’s call resulted from an effort finally made by the court: “The Court: Did Sullivan say anything to you about the Miles case? The Witness: Yes. The Court: Until you got the call from Sullivan, did you know that your friend, Johnson, was on the Miles case ? The Witness: No, sir.” He testified that Sullivan requested him to call Johnson as a personal favor to him. A study of this record from end to end fails to disclose exactly what Sullivan wanted Wendleton to say to juror Johnson, unless it is to be inferred from what Wendleton did say to him when he called him at Sullivan’s request about five minutes after Sullivan’s call. He testified: “I said, Hello, Fred, how are you,” and he said, ‘Hello Cec’, he calls me instead of Cecil, and I said, ‘How is your jury duty doing,’ something like that, and I think he said, ‘All right’ and I asked him, I said, ‘What is it, the John Miles case?’ and he said ‘Yes’ — he didn’t say yes, he said ‘How do you know that?’ I told him I had heard it and — I am trying to remember. He kept asking me how I knew it, and I told him I had just heard it and that I had known him (petitioner) a long time. If he (Johnson) would stand up and say a good word, or something like that. * * He also testified that he told Johnson that Miles was his friend and that he was “a good boy, or something like that.” He admitted that juror Johnson did call him the next morning but his version of the conversation differs from that of Johnson. “Q. What was the nature of that conversation? A. He told me what he had to do. Said he had talked with the deputy sheriff, I believe it was, and the Judge, and disqualified — not disqualified hisself, I guess, just tell them what had happened, because I wasn’t supposed to know that, or anything about it, and said that he would have to go in and tell everything, say everything.” Wendle-ton testified that he knew Sullivan. Sullivan owned the Intercity Market. He had “traded” there. “I used to work for him off and on, but he never called me” (before). He testified that he was also acquainted with the petitioner and that petitioner went to Sullivan’s market, “I think, to cash checks once in a while. He used to.”

Wendleton further testified that shortly after he finished his call to Johnson he received a call from petitioner “about five thirty — quarter to six, something like that”. He asked petitioner where he had gotten his phone number and petitioner said he got it from A1 Sullivan. Petitioner asked him whether he knew juror Johnson and he told him he did. He asked petitioner “What kind of trouble are you in?” and petitioner answered “Some kind of deal over a tractor or stolen merchandise.” “He just said that he would, it would be worth it to him if he could get a mistrial, and he would give us both (Wendleton and juror Johnson) $200 apiece, and he wouldn’t have to come in contact with” Johnson. “He didn’t say how the money was going to get to me” at that time. Later that night, “must have been about 8:30 or 9 o’clock”, petitioner called him again “and asked me if I had got ahold of Fred (Johnson) and I said ‘No’ and he asked me if I would go through with it, and I said, ‘I don’t think so.’ ” Again petitioner offered to pay Wendleton and juror Johnson $200.00 “apiece” if he could get a mistrial.

Juror Johnson did not testify that this offer was ever conveyed to him by Wendle-ton. Wendleton swore that he did not convey this offer to Johnson and no one asserts that his testimony in this regard is untrue or that this offer was ever conveyed to juror Johnson by any one in any way.

A1 Sullivan testified that he knew both petitioner and Wendleton. He swore that he had never made a telephone call to Wendleton about petitioner’s case or about juror Johnson.

Petitioner denied that he had “procured” Sullivan to call Wendleton. He denied that he called Wendleton or that he ever mentioned his predicament to either Sullivan or Wendleton until some days after the mistrial was declared. He admitted knowing Sullivan and Wendleton.

We examine the evidence to determine its sufficiency to support the commitment, and if it does, we will then examine it to determine whether it establishes petitioner’s guilt beyond a reasonable doubt. First, we examine paragraph 4 of the commitment which declares: “(C)on-temnor Miles procured the said Sullivan to call Wendleton and ask Wendleton to contact juror Johnson with the intention of affecting said juror Johnson’s judgment in the case in which he was then sitting as a juror.” (Emphasis supplied) Of course, there is no direct evidence that petitioner procured Sullivan to ask Wendle-ton to influence juror Johnson. Accordingly, the holding of the trial court that he did so must be based entirely, if at all, on circumstantial evidence. Circumstantial evidence is insufficient to establish petitioner’s guilt unless the circumstances and facts relied on to establish his guilt are not only consistent with each other and with the theory of his guilt, but are also inconsistent and irreconcilable with his innocence, and they must point so clearly and satisfactorily to his guilt that they exclude every reasonable theory of his innocence. State v. Burton, Mo., 357 S.W.2d 927; State v. Walker, Mo., 365 S.W.2d 597; State v. Stoner, Mo., 395 S.W.2d 192. Moreover, the rule in criminal cases that circumstantial evidence is insufficient to establish guilt, if it serves only to raise a mere suspicion of guilt, however strong that suspicion may be, is the same rule that applies in contempt cases. Robertson v. Johnson, 210 Mo.App. 585, 243 S.W. 215; State v. Rogers, Mo., 380 S.W.2d 398; State v. Jones, 363 Mo. 998, 255 S.W.2d 801. Besides, circumstantial evidence which establishes no more than a motive, an intent and an opportunity to commit an offense, standing alone, is insufficient to establish guilt. State v. Rogers, Mo., 380 S.W.2d 398; State v. Ramsey, Mo., 368 S.W.2d 413.

On this record, it can be found that petitioner had a motive to procure some one to ask Wendleton to influence juror Johnson. Certainly the two calls the record shows he made to Wendleton to offer him $200.00 to pay juror Johnson $200.00 to insure a mistrial justifies a finding that he had a motive and an intent to influence juror Johnson. It shows, perhaps, because of his acquaintance with Sullivan, that he had an opportunity to try to procure Sullivan to ask Wendleton to try to influence juror Johnson. Assuming that petitioner had a motive, an intent and an opportunity to induce Sullivan to call Wendleton and ask him to try to influence juror Johnson, just where is the evidence that he did it? The concurrence of a motive, an intent and an opportunity to commit the contempt charged against him, standing alone, does not make guilt. The record must show that, by some word or deed, overt or covert, he did procure Sullivan. The facts and circumstances we have recited from the testimony fail utterly to establish, beyond a reasonable doubt, or at all, that the petitioner “procured” Sullivan to do anything, regardless of petitioner’s motive, intent or hope to secure a mistrial and regardless of what either he or Sullivan asked Wendleton to do. We do not overlook that the committing court believed that Wendleton’s evidence that Sullivan called and asked him to try to influence juror Johnson, coupled with petitioner’s two later phone calls to Wendleton, somehow established that petitioner “procured” Sullivan. We have answered this theory by demonstrating the lack of evidence that petitioner actually “procured” Sullivan to call Wendleton and that petitioner’s two later phone calls to Wendleton establish no more than motive and intent to influence juror Johnson as they relate to the fundamental and vital inquiry: Did petitioner procure Sullivan?

It is true that a study of this record raises a strong suspicion that petitioner “procured” Sullivan, but suspicion alone is not sufficient in our system that requires proof beyond mere suspicion, and we cannot rule this cause out of outrage and assume guilt on evidence we are forbidden to accept as enough. On this record, we must follow established principles and we must hold, as we do, that the facts and circumstances before us are wholly insufficient, absent evidence, direct or circumstantial, and it is not present, establishing that petitioner, by some word or deed, overt or covert, actually procured Sullivan to ask Wendleton to try to influence juror Johnson.

We now consider whether the two phone calls made by petitioner to Wendleton offering him $200.00 to bribe juror Johnson by paying him $200.00 to bring about a mistrial rendered petitioner guilty of “an attempt to tamper” with juror Johnson which constituted “criminal contempt” and “an interference with the administration of justice” as the committing court found. Commitment, supra, paragraphs 1, 5. As observed already, juror Johnson did not testify that this offer was ever conveyed to him by Wendleton. In his testimony, he was not even interrogated about it and it was not even mentioned. Wendleton swore that he did not convey this offer to juror Johnson. No one asserts that he did. Indeed, it is conceded that he did not. In these circumstances, our duty is to follow the ruling of the Supreme Court in an analogous proceeding, In Re Elliston, 256 Mo. 378, 165 S.W. 987, 990: “All of the authorities seem to agree that a court of general jurisdiction has the inherent authority to punish for contempt any person who willfully or wantonly attempts, by any means whatsoever, to improperly influence a juror in the impartial discharge of his duties as such, whether by conversation, attempt to bribe, or to exert any undue influence with an officer in the selection of the personnel of the jury. 9 Cyc. p. 16, par. 2 and cases cited. But after a careful reading of the numerous cases there cited I have failed to find a single case where the court has punished a person, as in this case, where he in no manner approached, discussed, or offered to bribe the juror or officer in person. In other words, the courts seem to attach to the words, ‘to attempt to influence a juror,’ the meaning that the contemner or his representative must approach the juror in person before the contempt is completed.

“In the case at bar the appellant requested Highsmith to see the juror for him, but Highsmith never did so, nor did he ever intend to so do. That being true, the juror was not influenced, nor was he attempted to be influenced, in his action as a juror; but the appellant attempted to have Highsmith to influence the juror, which he never did. That conduct of appellant, in my opinion, after a careful consideration of all of the authorities cited, and which I have been able to find bearing upon the subject, did not constitute contempt of court. If, however, he or Highsmith, his representative, had approached the juror and had in any manner attempted to influence him, then clearly both of them would have been guilty of contempt; but, under the facts as charged in the citation and established by the un-contradicted evidence, neither of them was guilty of contempt. * * *.

“The Legislature evidently entertained the views here expressed, and in order to punish those who might be guilty of such misconduct enacted sections 4356, 4357, and 4894, R.S.1909, (presently Secs. 557.130, 557.140 and 556.150, V.A.M.S.) which have been in force for many years. These statutes cover this case as a glove covers the hand, and should be vigorously enforced whenever their provisions have been violated, as clearly appears in the case at bar. We are, therefore, of the opinion that if the appellant is guilty of the charge stated in the citation, he should be proceeded against under the sections of the statute referred to, and not by citation for contempt of court.” Accordingly, we must rule, and we do, that the evidence that petitioner made two phone calls to Wendleton offering him $200.00 to bribe juror Johnson by paying him $200.00 to bring about a mistrial was insufficient to establish that petitioner was guilty of “an attempt to tamper” with juror Johnson which constituted “criminal contempt” and “an interference with the administration of justice.”

Although the rulings we have made are entirely dispositive of this proceeding, we will nevertheless examine the commitment, as written, to ascertain whether it was legally sufficient in the first place. Since we have ruled that petitioner’s two phone calls to Wendleton and his effort to induce him to bribe Johnson did not constitute criminal contempt and an interference with the administration of justice, the recitals of the commitment that he made those calls and exerted that effort are wholly insufficient for the reason that the trial court could not and did not find that petitioner’s purpose to bribe juror Johnson was ever conveyed to him by Wendleton. In re Elliston, supra.

We examine the recital in the commitment “That in addition to the two telephone calls made directly by contemnor to Wendleton, contemnor Miles procured the said Sullivan to call Wendleton and ask Wendleton to contact juror Johnson with the intention of affecting said juror Johnson’s judgment in the case in which he was then sitting as a juror”. (Emphasis supplied) Commitment, paragraph 4. Our appellate courts have held consistently and repeatedly that, in contempt proceedings, the facts and circumstances constituting the contempt, and not mere legal conclusions, must be recited in the commitment, regardless of whether the contempt is direct, i. e., arising out of conduct in the presence of the court [Ex parte Stone, Mo., 183 S.W. 1058, 1059; Ex parte Creasy, 243 Mo. 679, 148 S.W. 914, 922, 41 L.R.A.,N.S., 478; Ex parte Shull, 221 Mo. 623, 121 S.W. 10, 11] or, as here, is indirect, i. e., arising out of conduct outside the presence of the court. Reardon v. Frace, 344 Mo. 448, 126 S.W.2d 1167, 1168; Osborne v. Purdome, Mo., 244 S.W.2d 1005, 1011, 29 A.L.R.2d 1141; G_ v. Souder, Mo.App., 305 S.W.2d 883, 887 (7, 8); White v. Hutton, Mo.App., 240 S.W. 2d 193, 200(9); Ex parte Heffron, 179 Mo.App. 639, 651, 162 S.W. 652, 656. We must construe the commitment strictly in favor of the petitioner, and no inferences, presumptions or intendments are permitted to be indulged against him in order to aid its recitals. Scott v. Davis, Mo. App., 328 S.W.2d 394, 396, and authorities cited. The recital of paragraph 4 that petitioner “procured” Sullivan to call Wendleton and ask him to influence juror Johnson is the merest legal conclusion and, in view of the decisions we have cited, cannot be regarded on any legal theory as a recital of facts and circumstances constituting a contemptuous procurement of Sullivan by petitioner. Of course, as we have ruled, there is no evidence that petitioner procured Sullivan to ask Wendleton to influence juror Johnson and it was therefore impossible for the committing court to recite any facts and circumstances that justified its mere legal conclusion that petitioner procured Sullivan. For these reasons paragraph 4 of the commitment is wholly insufficient.

Because paragraphs 1, 5, dealing with the effort at bribery, and paragraph 4, dealing with the claimed procurement of Sullivan, contained the fundamental and vital recitals of the commitment, and since we have held that both are fatally defective, it results that the entire commitment is fatally defective.

For all of the reasons assigned, the respondent, Arvid Owsley, Sheriff of Jackson County, does not restrain petitioner of his liberty by authority of a legal commitment for criminal contempt and he must be discharged from custody.

It is so ordered.

All concur.

      . Consult also Sec. 557.110 V.A.M.S. This footnote ours.


author: HOGAN, Judge.

text:
    W. H. CLAPPER and Noma Williams, Appellants, v. Frank CHANDLER, Administrator of the Estate of Stanley Clapper, Deceased, Respondent.
    No. 8522.
    Springfield Court of Appeals. Missouri.
    Aug. 16, 1966.

      Herbert Douglas, Douglas & Douglas, Neosho, for appellants.
    James L. Paul, Pineville, for respondent.
   HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of McDonald County, refusing to set aside an order of the probate court directing a sale of the intestate’s realty to satisfy the claims of creditors. The principal question involved is whether the original order of sale was void for want of compliance with the notice requirements of paragraph 2 of Section 473.493.

Our jurisdiction has been questioned on the ground that title to real estate is involved within the meaning of Section 3, Article V of the Constitution of 1945. Inasmuch as the order complained of was made by the probate court, and the jurisdiction of the circuit court on appeal was only such as could be exercised by the probate court, In re Myers’ Estate, Mo., 376 S.W.2d 219, 222 [4]; In re Franz’ Estate, Mo., 372 S.W.2d 885, 902 [10], we conclude that the order or judgment appealed from cannot be said to have affected title directly in the appellate jurisdictional sense, and we therefore deny the appellants’ motion to transfer the cause to the Supreme Court on that ground. See Bank of Forest City v. Pettijohn, 338 Mo. 506, 92 S.W.2d 189; Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 952-953, 2 S.W.2d 771, 774 [4-6] [7].

On October 17, 1962, Stanley Clapper, age 28, died intestate in McDonald County. An application for letters of administration was filed in the probate court on April 3, 1963, and letters were issued to the respondent on the same day. Appellant Noma (or Norma) C. Williams is the decedent’s sister, and appellant William Clapper is his brother. The application for letters of administration also listed six additional sisters as decedent’s heirs, but gave no estimate of the amount of his real or personal property. On June 10, 1963, the administrator petitioned the probate court for an order to sell 280 acres of land belonging to the estate, on the ground that the sale was necessary to satisfy the claims of creditors. On the following day, the court issued an order setting the hearing on the petition for July 15, 1963, and requiring that notice of the hearing be given to all “heirs and devisees who are interested persons,” both by publication and by ordinary mail, and further ordering that proof of publication be filed in court on or before the date of the hearing.

It has been stipulated that no notice was given to any of the heirs by mail, and that the insertion dates of the order of publication were June 21, June 28, July 5 and July 12, 1963. The hearing on respondent’s petition for an order of sale was held on July 15, 1963, twenty-four days after the date of the first insertion, whereas paragraph 2 of Section 473.493 specifies that when service by publication is ordered the hearing shall be held not less than thirty days nor more than forty-two days after the date of the first insertion of the publication.

Subsequently, the order of sale was made and appellant Williams and her husband undertook to purchase the property for the sum of $6,000.00. They were unable to obtain the money to make the purchase; the order of sale originally entered was thereafter modified and eventually a sale was made to a Mr. Fred C. Hinds. Mr. Hinds, we gather, has paid the sum of $7,200.00 for the realty, and the record at least indicates that he has received a deed. No final settlement has been filed in the estate, or at least had not been filed at trial time. A number of proceedings were had in the probate court relating to this order of sale between the time it was originally entered on July 15, 1963, and the time the sale to Mr. Hinds was completed and approved by the probate court on February 24, 1964. The validity of these various proceedings and the probate court’s interim orders is not questioned; the issue actually tendered and tried in the probate court, and again in the circuit court, is whether the original order of sale was void, or merely irregular or erroneous for lack of compliance with the notice provisions of Section 473.493. The circuit court, from whose judgment the appellants have prosecuted this appeal, refused to set aside the order of sale, relying principally upon the language of Section 473.013 (the so-called “single notice” provision) and secondarily upon the appellants’ participation and acquiescence in the sale proceedings as constituting a species of waiver or estoppel.

The case is before us for review de novo under the provisions of Rule 73.-01(d), Cranford v. Langston, Mo.App., 356 S.W.2d 581, 584 [1], and we have given the whole record and the applicable law entirely fresh consideration, as is our duty. Cross v. Gimlin, Mo., 256 S.W.2d 812-813 [2, 3]; Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129 [1, 2]. We have, nevertheless, made certain assumptions concerning matters which are not questioned. We have assumed that the orders modifying, setting aside, and then reinstating the original order of sale are valid. They were all made within one year after the original order was entered, Section 473.500, and no sale prior to that made to Mr. Hinds was actually consummated. Section 473.517. Also, we have assumed that appellants’ method of attack upon the order was proper. Actually, the appellants’ pleading was styled an “Application to Set Aside Order for the Sale of Real Estate dated February 24, 1964,” but the appellants made it clear that they were attacking the original order, which had been set aside in January 1964, after Mrs. Williams failed to consummate her purchase of the property. Issue was joined without objection by the respondent. We have assumed it is within the power of the probate court to set aside a wholly void order at any time prior to its approval of the final settlement. In re Tate’s Estate, Mo.App., 262 S.W.2d 70, 77-78 [9]; 1 Woerner, American Law of Administration, Section 146, p. 493 (3rd ed. 1923). We do not attempt to characterize the appellants’ motion as a proceeding under the provisions of Section 472.150 or as a motion in the nature of a writ of error coram nobis, as discussed in In re Sheldon’s Estate, 354 Mo. 232, 238, 239, 189 S.W.2d 235, 237, 238 [4] [7], though in this case the invalidity of the order is not only patent upon the record; the factual matters relied on by the appellants are stipulated. Again, the issue actually tendered and tried was whether the original order was void for want of notice, and of course, fundamentally, our duty as an appellate court is to determine whether the real matters in issue were tried without error. State ex rel. Bush v. Sturgis, 281 Mo. 598, 604, 221 S.W. 91, 92, 9 A.L.R. 1315, 1319.

Section 473.013, upon which the trial court relied, is as follows:

“The administration of the estate of a decedent from the filing of the application for letters testamentary or of administration until the decree of final distribution and the discharge of the last administrator or executor is deemed one proceeding for purposes of jurisdiction. Such entire proceeding is a proceeding in rem. No notice is jurisdictional except the notice by publication provided in section 473.033, unless the provision requiring the notice expressly provides that the notice is jurisdictional.”

This section is taken from Section 62 of the Model Probate Code. Literally, it provides that the administration of a decedent’s estate shall constitute one continuous proceeding in rem, the original notice of which suffices as notice of the entire proceeding. State ex rel. Plymesser v. Cleaveland, Mo., 387 S.W.2d 556, 559-560; Summers, Introduction to the Probate Code, 25 V.A.M.S. vii-viii (1956). The question before us is whether the statutory language requiring only the original notice can be applied literally to the sale of an intestate’s realty to satisfy the claims of creditors. In our opinion, it cannot.

In rationalizing our opinion, we have set certain considerations to one side. It has been suggested by at least one careful writer on the subject that a proper construction of Section 473.013, as it applies to Section 473.493, involves constitutional principles; that due process may require notice even though the sale is part of a proceeding in rem. Maus, 4 Missouri Practice, Section 1083, p. 313. Possibly so, but we have neither the authority nor the inclination to base our opinion upon that ground. It has also been suggested that when the heirs’ addresses are known, as they were in this case, due process requires that personal notice be given, if notice is required. We have likewise set that suggestion to one side; we have assumed that if the notice required by Section 473.493, par. 2, is jurisdictional despite the language of Section 473.013, publication is sufficient. Rather, we have reached our conclusion by examining what we understand to be the notion or conception underlying the theory of an administration as a single proceeding, of which a single notice is sufficient.

Because a probate proceeding is an in rem proceeding, and because the court’s jurisdiction is based on its power over the res (the decedent’s property) rather than its jurisdiction over the person, a persuasive argument can be made that a single, reasonable notice is sufficient notice of the entire administration proceeding from beginning to end. Nevertheless, the res must be affirmatively subjected to the court’s jurisdiction, Restatement, Judgments, Section 32, comment (e), p. 130, and possession or control of the property itself is regarded as essential to the exercise of jurisdiction in rem. 30A Am.Jur. Judgments, Section 131, p. 246. In the situation at hand, the res consisted of the property of the decedent grasped through the personal representative as an officer of the court, State ex rel. Gott v. Fidelity and Deposit Co. of Baltimore, Md., 317 Mo. 1078, 1089-1090, 298 S.W. 83, 88 [8], but, in our view, if the title and right to possession of the decedent’s realty did not vest in the personal representative by virtue of the grant of letters, then the probate court acquired no in rem jurisdiction as to the real property. 1 Woerner, American Law of Administration, Section 148, pp. 500-504. Indeed, the single proceeding, single notice scheme of the Model Code was based on the assumption that the probate court took jurisdiction of the land of the decedent as well as his personalty from the inception of the proceeding, Model Code, p. 91, and its provisions make it mandatory that the personal representative take possession. Model Code, Section 124, and Comment, pp. 133-134. The rather narrow question to be determined, then, is whether the Probate Code of 1955 vests the personal representative with an interest in or right of possession to realty more extensive than he had under the former law, so that the res grasped by the probate court includes an intestate’s realty, or whether, as under the prior law, the primary interest in and right of possession to realty vests in the heirs. Under the former law, a proceeding to sell an intestate decedent’s realty was a proceeding in invitum, a forced devestiture of the heirs’ title, Jones v. Carter, 56 Mo. 403, 406 [1], and therefore notice of the application for an order of sale for the full statutory period was an indispensable prerequisite to the jurisdiction of the probate court to order the sale. Norton v. Reed, 253 Mo. 236, 250-251, 161 S.W. 842, 846 [1] [2].

We conclude, after careful consideration, that under the present law the probate court acquires no more jurisdiction initially over an intestate’s realty than it did under the prior statutes. It is true that Section 473.260 provides that the heirs’ or devisees’ possession is “ * * * subject to the possession of the executor or administrator * * * and [the property] is chargeable with the expenses of administering the estate [and] the payment of other claims and allowances * * * except as otherwise provided in this law,” but; in a sense, the heirs’ right of possession has always been qualified, for as was pointed out in Eoff v. Thompkins, 66 Mo. 225, 226, “ * * * [w]hen a man dies, his real estate, though technically descending to his heirs, does so cum onere— immediately comes into the custody of the law, to be administered in due course. * * * ” Nor does Section 473.263, concerning the possession of the decedent’s assets, make it the duty of the personal representative to take possession of the real property, as does' its counterpart in the Model Code. This section does not even seem to give the personal representative a permissive right to possession of the decedent’s realty, as do the foreign statutes considered by its framers to be similar. The Final Report of the Joint Probate Laws Revision Committee, p. 69 (1955), indicates that Section 473.263 was taken in part from the Kansas statute, Section 59-1401, K.S.A. (1964), which gives the personal representative a permissive right to possession of the realty, and also in part from the Minnesota statute, which confers similar authority, Peterson v. Peterson, 173 Kan. 636, 251 P.2d 221, 224 [2, 3]; Bowen v. Willard, 203 Minn. 289, 281 N.W. 256, 258-259 [2], but Section 473.263, it seems to us, still conditions the personal representative’s right to possession of realty upon a specific order of the probate court, as did the former law. Rollins v. Shaner, 316 Mo. 953, 959-960, 292 S.W. 419, 421-422 [9]; Langston v. Canterbury, 173 Mo. 122, 130-131, 73 S.W. 151, 152-153 [2]; Trenton Motor Co. v. Watkins, Mo.App., 291 S.W.2d 659, 663 [2, 3], We may also note, without attempting any general construction of the Probate Code, that the rules of descent and distribution still vest the heirs (and surviving spouse) with title to an intestate’s real property, subject to the payment of claims, Section 474.010; that his heirs still have at least a limited right to dispose of their interest in the realty by virtue of Section 473.460, subsection 4; and, presumably, they are still entitled to partition, subject to the debts of the estate. Rule 96.14. It is therefore our opinion that compliance with the notice provisions of Section 473.493 is still an essential condition precedent to the exercise of the probate court’s jurisdiction to order the sale of an intestate decedent’s real property to satisfy claims, as it was prior to 1955. Inasmuch as the defective publication rendered it substantially less likely that the heirs did receive actual notice of the hearing on respondent’s petition for an order of sale, and since the personal notice which the probate court ordered was not given, we conclude that the order originally entered and subsequently renewed was void, and not merely irregular or erroneous. Restatement, Judgments, Section 8, Comments (a) and (b), pp. 46-48. We do not undertake to say that if publication alone had been ordered by the probate court, and if such publication had been properly made, and the requirements of Section 473.493 with respect to hearing date had been followed, that such would have been insufficient. We do think that the notice requirements of Section 473.493 were amended and made specific precisely to avoid the kind of confusion which arose in connection with statutes requiring publication only for a prescribed number of consecutive weeks, which sometimes left the requisite period of actual notice in doubt. See City of Brunswick ex rel. Barkwell v. Benecke, 289 Mo. 307, 314-319, 233 S.W. 169, 170-172.

We bear in mind that if appellants had voluntarily appeared at the hearing upon the petition, they would have waived the notice provisions, and that notice might have been specifically waived. Section 472.130. The record does not establish such a waiver, however, and the fact of actual notice is not sufficient to make the order valid. Restatement, Judgments, Section 6, comments (d) and (e), pp. 38-39. Nor have we overlooked the respondent’s insistent argument that appellants’ participation or acquiescence in the sale precludes them from questioning its validity. We think, however, that we cannot apply the principle of “estoppel,” or perhaps more properly ratification, to this case. To reiterate, the question whether the order of sale is void or merely reversible or voidable for failure to comply with the procedural requirements of Section 473.493 depends in turn upon whether compliance with these procedural requirements is a condition precedent to the exercise of jurisdiction by the court. Restatement, Judgments, Section 8, Comment (b), pp. 46-48. As we have stated at length, we conclude that the notice requirement of Section 473.493 is still a condition precedent to the exercise of the probate court’s jurisdiction, Norton v. Reed, supra, 253 Mo. at 251, 161 S.W. at 846 [2]; Young v. Downey, 150 Mo. 317, 330, 51 S.W. 751, 754, and that the order of sale is wholly void, and not merely voidable or erroneous. This is not a case in which the appellants have received the proceeds of a judicial sale and seek to repudiate it, as was Meddis v. Kenney, 176 Mo. 200, 75 S.W. 633; there has been no distribution of the proceeds, and in our view the appellants’ mere acquiescence or participation in the sale would not preclude them from contesting the validity of the original order. See Linville v. Ripley, 347 Mo. 95, 101, 146 S.W.2d 581, 583-584 [7, 8]. The order should have been set aside.

We are aware that such a disposition of the cause leaves some loose ends. Probably the conveyance executed leaves a cloud on the heirs’ title, which the probate court cannot, of course, remove. We also bear in mind that the scheme of the Probate Code has in view that no order will be set aside when it will affect “any act done or any right acquired in reliance on any such order, judgment or decree.” Section 472.150. Nevertheless, the doctrine of caveat emptor applies to sales of realty to satisfy claims, In re Claus’ Estate, Mo.App., 167 S.W.2d 372, 375 [9], and the defects of process in this case were readily discoverable on an inspection of the records of the probate court. The purchaser’s rights, of course, are not ascertainable in the probate court, but remain subject to determination in the proper forum. See In re Schell’s Estate, Mo.App., 390 S.W.2d 618, 620 [3].

For the reasons indicated, the judgment is reversed and the cause remanded, with directions to enter a judgment setting aside the order of sale dated February 24, 1964.

STONE, P. J., concurs.

TITUS, J., not participating, because not a member of the court when this cause was submitted.

      . L.1955, p. 385, Section 179, as amended L.1957, p. 829, Section 1. Except where otherwise noted, all references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.R.

      . L.1955, p. 385, Section 31, as amended L.1957, p 829, Section 1.

      . Which provides for notice of the issuance of letters by publication, and by ordinary mail to each heir and devisee whose name and address is shown by the application for letters or other records of the court.

      . “§ 62. Character of Proceeding. The administration of the estate of a decedent from the filing of the petition for probate and administration or for administration until the decree of final distribution and the discharge of the last personal representative shall be considered as one proceeding for purposes of jurisdiction. Such entire proceeding is a proceeding in rem. No notice shall be jurisdictional except as provided in sections 69 and 70 [which provide for notice of the beginning of probate proceedings].” Model Probate Code, Section 62, p. 91 (Simes 1946). This document is hereinafter referred to as the Model Code.

      . The author cites State ex rel. Deems v. Holtcamp, 245 Mo. 655, 669-670, 151 S.W. 153, 157 [8, 9].

      . See Comment, 70 Harv.L.R. 1257, 1269-1270 (1957), suggesting that Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, implies such a requirement. To the contrary, see In re Shew’s Estate, 48 Wash. 2d 732, 296 P.2d 667, 669 [4]; Comment, 50 Mich.L.R. 124, 132-138 (1951).

      . See, e. g., Barrette v. Whitney, 36 Utah 574, 106 P. 522, 525-526, 37 L.R.A.,N.S., 368; Simes, The Administration of a Decedent’s Estate as a Proceeding in Rem, Model Oode, Part III, pp. 505-516; Comments, supra, 70 Harv.L.R. at 1260-1261; 50 Mich.L.R. at 127-132; Restatement, Judgments, Sections 2, p. 12, and 32, p. 127 (1942).

      . See also Simes, The Administration of a Decedent’s Estate as a Proceeding in Rem, supra, Model Code at pp. 509-510.

      . Model Code, Section 124, p. 133. “Every personal representative shall have a right to, and shall take, possession of all the real and personal property of the decedent except the homestead and exempt property of the surviving spouse and minor children. He shall pay the taxes and collect the rents and earnings thereon until the estate is settled or until delivered by order of the court to the distributees. He shall keep in tenantable repair the buildings and fixtures under his control and may protect the same by insurance. He may maintain an action for the possession of the real property or to determine the title to the same.”


author: TITUS, Judge.

text:
    STATE of Missouri ex rel. William James HOUSER, Relator, v. The Honorable Arthur U. GOODMAN, Jr., Judge of the Circuit Court of Dunklin County, Missouri, Respondent.
    No. 8614.
    Springfield Court of Appeals. Missouri.
    Sept. 1, 1966.

      Ford, Ford & Crow, Wendell W. Crow, Kennett, for relator.
    McHaney, Billings & Welman, William O. Welman, Kennett, for respondent.
   ORIGINAL PROCEEDING IN PROHIBITION

PRELIMINARY WRIT OF PROHIBITION MADE ABSOLUTE

TITUS, Judge.

Respondent, Judge of the Circuit Court of Dunklin County, issued the herein complained-of order in a damage suit filed by Erma Brumley against William James Houser, the relator. The circuit court action ensued from an accident involving automobiles operated respectively by Mrs. Brumley and relator and, according to plaintiff’s petition, caused her to suffer “painful and disabling injuries” to most every particle of her body, which injuries “are permanent and progressive in nature” and have caused, inter alia, diminution of “her ability to work, labor and enjoy life.”

Relator propounded interrogatories to be answered by Mrs. Brumley. Of the thirteen interrogatories posed, eight were followed by subinterrogatories (two to fifteen in number) which required response only if the principal question was answered in the affirmative. Summarily, the interrogatories inquired concerning Mrs. Brumley’s accident injuries, identity of persons and institutions which furnished medical care, her employment, earnings, and the expenses incurred because of the casualty. The interrogatories also sought information of “other automobile accidents” and data as to “any medical care or treatment” plaintiff had received in the ten years before the accident. Interrogatory numbered nine (which followed the inquiry of “other automobile accidents”) queried: “Have you ever sustained any injuries either before or after the date of the incident complained of in your petition, other than as set out in your answer to the preceding question. If so, please state: [a] When were you so injured? [b] How were you injured? [c] What is the name and address of the doctors who treated you?”

Mrs. Brumley filed her objections “to the interrogatories * * * for the following reasons: 1. That the number of said interrogatories is such as to constitute oppression; [A] Said interrogatories call for a minimum of one hundred ninety-two answers by plaintiff. Wherefore, plaintiff prays for a protective order as provided in Rule 57.01 [c] ”

Thereafter respondent entered his order that: “Defendant withdraws interrogatories 3-H to 3-0 inclusive. Plaintiff’s objections as to interrogatories 9 to 9-C inclusive sustained and overruled as to the remaining Interrogatories. Ordered that no deposition shall be taken of Plaintiff concerning any matter covered by these Interrogatories.”

Relator brings this original proceeding in prohibition seeking restraint on the enforcement of the last two sentences of respondent’s order. Irrespective of jurisdictional limitations placed upon this court in appellate processes (which are not here involved), we have concurrent jurisdiction with the Supreme Court as to all “original remedial writs,” including prohibition. V. A.M.S. Constitution, Article V, Sec. 4; State ex rel. City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415(2); State ex rel. City of Creve Coeur v. Weinstein, Mo.App., 329 S.W.2d 399, 401.

On July 21, 1966, relator served respondent with a copy of his petition for writ of prohibition herein, together with written notice said petition would be filed in this Court on July 28, 1966, which was done. Thereafter, we initially issued a preliminary writ in this case prohibiting respondent from enforcing the last sentence of his order and set August 19, 1966, as the date for him to appear and show cause, if any he had, why the preliminary writ should not be made permanent or an immediate rule in prohibition should not be ordered. Subsequently we were informed the Circuit Court case had been set for trial on August 24, 1966. This setting date has been confirmed by respondent in his return to the preliminary writ, and he also states the setting was made on July 25, 1966. As it appeared to us relator would not have a reasonably sufficient time to depose plaintiff unencumbered by respondent’s order after this Court could determine this matter and before the circuit court case was set for trial, we issued an amended preliminary writ wherein respondent was additionally prohibited from trying said circuit court case, from setting it for trial, and from exercising any further jurisdiction in that matter until the further order of and final judgment of this Court. In respondent’s return he has admitted the factual allegations of relator’s petition, including the entry of the order, supra, but has denied, among other things, he has done anything to oppress relator or that the interval between August 19, 1966 (assuming we could have determined this matter on that date), and August 24, 1966, was an insufficient time for relator to depose plaintiff unshackled by his order. Respondent did not file suggestions in opposition to issuance of the initial or amended preliminary writ.

The Rules of Civil Procedure afford discovery methods designed to eliminate elements of surprise often employed as sandbags to dam the flow of information and impede the disclosure of truth. Discovery should provide a party with access to anything relevant to the proceedings and subject-matter of the case not protected by privilege. Regardless of this and other multitudinous pronouncements of a similar ring, and the fact “The supreme court rules are quite clear and * * * have been further construed and defined by decisions of the appellate courts of this state,” such courts continue “to receive an inordinate and apparently unnecessary number of applications to regulate the use of interrogatories” and other discovery procedures. State ex rel. Hof v. Cloyd, Mo. (En Banc), 394 S.W.2d 408, 411. Perchance this adversity springs from a misunderstanding by trial courts and counsel as to the impact of numerous denials of applications for remedial writs. That peremptory writs have been used to review interim orders in discovery cases does not mean these discretionary writs will or should issue in each case where the court opines the trial court’s interim order was erroneous. Unless there appears no other wholly adequate means of redress, the parties in most cases (as is true of most other interim orders) must be confined to a review of the order on appeal from the final judgment. Appellate courts cannot serve as a scullery to scour every misstep of the trial courts. Ergo, a trial court may not always take solace in the fact a writ is denied because refusal of such writs does not, per se, mean the trial court is error-free and counsel has wrongfully employed the discovery device. These asides are wishfully supplied for the edification of both trial lawyers and trial courts, coupled prayerfully with a desire they may also serve both again as a revelation of the purposes of discovery procedures and be used accordingly. “Whether questions are proper in form and substance is,” in the first instance, “for the determination of the trial court; and the court should keep in mind that if an objection is sustained the interrogator has the right to reframe and resubmit the question in proper form or to propound additional ones. ‘The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, undue expense, embarrassment, or oppression. * * *’ Civil Rule 56.01(a), V.A.M.R.” State ex rel. Hof v. Cloyd, supra, Mo. (En Banc), 394 S.W.2d 408, 411-412.

The reference made to interrogatories under Rule 56.01(a), V.A.M.R., has a bi-fold aspect, id est, (1) the number of interrogatories in a given set, and (2) the number of sets of interrogatories. Mrs. Brumley’s objections to relator’s interrogatories were confined to the first aspect by claiming “the number of interrogatories is such as to constitute oppression.” When she married her objections to the interrogatories with a prayer for a protective order under Rule 57.01(c), it was required that such application for order be made by written motion (Rule 74.02, V.A.M.R.) wherein she obligated herself to “state with particularity the grounds therefor” and to set forth “the relief or order sought.” Rule 55.30(a) V.A.M.R. She did neither. Had respondent found, in fact, the number of interrogatories in the one set proffered to be oppressive, the expected ruling would be for the court to sustain the objections to relator’s interrogatories in their entirety and thus leave to relator the burden of thereafter filing another set of interrogatories containing a reasonable number of questions, or pursuing his search for information via deposition, or down other paths of discovery. Stephen Amusement, Inc. v. Paramount Film Distributing Corp., S.D.N.Y., 4 F.R.Serv.2d 33.353, Case 2. That respondent did not rule on Mrs. Brumley’s objections in the expected manner and did not state the number of inquiries constituted oppression, permits us to infer respondent considered the quantity of questions imposed no undue burden on Mrs. Brumley. No specific objections were lodged against interrogatories numbered 9 to 9-C. What was said by the Supreme Court in State ex rel. Hudson v. Ginn, Mo. (En Banc), 374 S.W.2d 34, at page 37, would indicate these questions were germane to the subject matter involved. Nevertheless, we do not undertake to speculate why respondent singled out these interrogatories in the penultimate sentence of his order. What has previously been observed would indicate relator is not without other or similar procedures to secure the information sought by interrogatories 9 to 9-C, or to secure redress by other means if respondent did, in fact, err in his ruling relative thereto.

We now oscillate our attention to the last sentence of respondent’s order wherein he “Ordered that no deposition shall be taken of plaintiff concerning any matter covered by these interrogatories.” Rule 57.01(a), V.A.M.R., states that “Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both such purposes. After commencement of the action the deposition may be taken without leave of court. * * * ” The authority granted by this rule (and under similar statutes) to take depositions has been held to be a “right” or “privilege” of a party to the litigation.

While it is true Mrs. Brumley prayed “for a protective order as provided in Rule 57.01 [c],” her objections were directed to relator’s interrogatories. The subject of depositions, as far as the record is concerned, was never broached and no notice had been served to take any depositions. Although it may have application to additional discovery devices through reference in other rules, Rule 57, V.A.M.R. concerns itself with depositions, and, dealing with protective orders, Rule 57.01(c) provides:

“After notice is served for taking a deposition, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order * * * that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters * * * or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or undue expense, oppression, or to compel a witness or party to make discovery.”

Missouri Rule 57.01(c) is patterned generally after Federal Rule 30(b) with two notable exceptions. Rule 30(b) authorizes the Federal Courts to “make an order that the deposition shall not be taken” or to make an order the deposition “may be taken only upon written interrogatories.” Missouri courts are, by implication at least, denied such authority but even with these added provisions of Federal Rule 30(b), Federal Courts are most reluctant to interfere with a party’s right to take a deposition or limit its scope once that mode of inquiry has been selected. 4 Moore’s Federal Practice, Sec. 30.09, p. 2031, and cases therein cited; 23 Am.Jur.2d, Depositions and Discovery, Secs. 245, 247, and 248, pp. 634-637. While respondent’s order does not undertake to limit relator’s discovery exclusively to interrogatories as to all inquiries, it will do a fair job of gelding relator’s right to depose the plaintiff as to the most important elements of her claim if it is permitted to stand.

Insofar as depositions are concerned, it seems clear a trial court may make a protective order under rule 57.01(c) only after notice to take a deposition has been served, only after a motion for a protective order has been seasonably made, and only after movant shows good cause for protection. Not one of these components was in esse when respondent’s order was entered.

With few exceptions, the forte of any court is to relegate itself to limbo until presented proper pleadings to be employed as vehicles for judicial locomotion. Even in matters over which a court has general jurisdiction, it cannot, ex mero mota, set itself in motion nor have power to determine questions unless they are presented to it in the manner and form prescribed by law. Jurisdiction to decide concrete issues in a particular case is limited to those presented by the parties in their pleadings, and anything beyond is coram non judice and void. The fact depositions (after commencement of the action) may be taken without leave of court, indicates this is a phase of a case where a trial court should remain passive until prompted into action by the presentation of some appropriate pleading calling for its attention and action.

As there was no notice outstanding to take depositions at the time respondent’s order was made, as plaintiff had not moved for a protective order on depositions nor shown cause why one should be given, and because the order was obviously made by the court ex mero mota, we hold that respondent’s order is void and made beyond his jurisdiction insofar as it ordered no deposition of plaintiff could be taken concerning a matter covered by relator’s interrogatories.

While it is not always essential the remedy of prohibition be the only one that might be applied (State ex rel. St. Louis & K. R. Co. v. Hirzel, 137 Mo. 435, 37 S.W. 921, 924, 38 S.W. 961; State ex rel. Mack v. Scott, 241 Mo.App. 674, 235 S.W.2d 106, 109), in this instance we do not believe relator’s other remedies are wholly adequate. There is usually no adequate substitute for taking the oral deposition of a witness or adverse party, Mr. Justice Whittaker has said “From my long experience at the Bar, I can readily agree that the device of * * * written interrogatories * * * except for proof of formal matters, is a tool of discovery very inferior to oral examination.” Perry v. Edwards, D.C.Mo., 16 F.R.D. 131, 133. Also, unless relator could establish himself as a clairvoyant with power to divine what questions would have been asked and what answers would have been given on an unobstructed deposition of plaintiff, we can foresee an insurmountable task for relator on appeal in convincing an appellate court concerning the materiality of respondent’s error.

A writ of prohibition may be invoked to restrain the enforcement of orders beyond or in excess of the authority of the judge, and to keep a court within the compass of its jurisdictional action as defined by law. There can be no question that prohibition is the appropriate remedy to prevent a court from making an order it has no jurisdiction to make.

There is no dispute the order in question was made and there appears to be no legal authority, under the circumstances in this case, for respondent making an order that no deposition of plaintiff should be taken concerning any matters covered by relator’s interrogatories.

We do not see any justification in the delay or expense entailed in requiring briefs, argument, and submission at a later date. Therefore, an immediate absolute rule in prohibition is ordered. Also, to insure relator may be afforded reasonable time after the date of our determination of this cause and the time the Circuit Court case may again be set for trial, we further now prohibit respondent from setting said case for trial or from trying said case prior to or before the 17th day of October, 1966.

STONE, P. J., and HOGAN, J., concur.

      . Parenthetically we note that without answering interrogatories 9 to 9-0, inclusive, Mrs. Brumley used but thirty-eight sentences in answering the questions, including such a sentence as “No.”

      . Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L.Ed. 451; State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920, 922; Glick v. McKesson & Robbins, Inc., D.C.Mo., 10 F.R.D. 477; Rule 57.01(b), 4 RSMo 1959, p. 4976, V.A.M.R. 41-82, p. 195.

      . Oceanside Union School District, etc. v. Superior Court, 58 Cal.2d 180, 23 Cal.Rptr., 375, 373 P.2d 439, 442, note 4; State ex rel. City of Mansfield v. Crain, supra, Mo.App., 301 S.W.2d 415, 419-420.

      . State ex rel. Wilson v. Burney, 193 Mo.App. 326, 186 S.W. 23, 28; State ex rel. Methudy v. Killorem, Mo.App., 229 S.W. 1097, 1099; Woelfle v. Connecticut Mut. Life Ins. Co., 234 Mo.App. 135, 112 S.W.2d 865, 873; State v. Aubuchon, Mo., 381 S.W.23 807, 812.

      . State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, 29, 129 Am.St.Rep. 536; Riggs v. Moise, 344 Mo. 177, 128 S.W.2d 632, 635; In re Beauchamp’s Estate, Mo.App., 184 S.W.2d 729, 734. 20 Am.Jur.2d, Courts, Sec. 94, p. 455, states: “The general rule is that a court cannot undertake to adjudicate a controversy on its own motion; it can do this only when the controversy is presented to it by a party, and only if it is presented to it in the form of a proper pleading. A court has no power either to investigate facts or to initiate proceedings.” Swing v. St. Louis Refrigerator & W. G. Co., 78 Ark. 246, 93 S.W. 978: “A court does not have * * * as a general rule, power to give judgment respecting a matter not submitted to it for decision, and over which it has jurisdiction.” Sale v. Railroad Commission, 15 Cal.2d 612, 104 P.2d 38: “A court is a passive forum for adjusting disputes, and has no power either to investigate facts or to initiate proceedings. Litigants themselves largely determine the scope of the inquiry and the data upon which the judicial judgment is based.”

      . State ex rel. Gulf Oil Oorp. v. Weinstein, Mo.App., 379 S.W.2d 172(2); State ex rel. Schoenfelder v. Owen, 347 Mo. 1131, 152 S.W.2d 60(1); State ex rel. Henry v. Cracraft, 237 Mo.App. 194, 168 S.W.2d 953; State ex rel. City of Mansfield v. Crain, Mo.App., 301 S.W.2d 415(7).

      . State ex rel. Wilson v. Burney, supra, 193 Mo.App. 326, 186 S.W. 23; State ex rel. Leake v. Harris, 334 Mo. 713, 67 S.W.2d 981, 983.

      . State ex rel. Riggs v. Seehorn, 344 Mo. 186, 125 S.W.2d 851, 852; State ex rel. Lane v. Montgomery, 221 Mo.App. 1043, 295 S.W. 824, 825; Scarritt Estate Co. v. Johnson, 303 Mo. 664; 262 S.W. 373, 377.

      . State ex rel. National Outdoor Advertising Co. v. Seehorn, 354 Mo. (En Banc) 170, 188 S.W.2d 657, 660; State ex rel. Robertson v. Sevier, 342 Mo. 346, 115 S.W.2d 810, 116 A.L.R. 651; 42 Am.Jur. Prohibition, Sec. 43, p. 178, 73 C.J.S. Prohibition § 28, p. 106.