author: SAM C. BLAIR, Special Judge.

text:
    CITY OF HANNIBAL, Missouri, a Municipal Corporation (Plaintiff) Respondent, v. Ben N. WINCHESTER and Ruth Winchester, his wife, et al. (Defendants) Appellants.
    No. 30897.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied Oct. 15, 1962.

      William B. Spaun, Hannibal, for appellants.
    Dennis R. Davidson, City Counselor, Hannibal, for respondent.
   SAM C. BLAIR, Special Judge.

On November 4, 1959, the original petition in this litigation was filed as a class suit by authority of a resolution of the City Council of Hannibal, under the provisions of Section 71.015, V.A.M.S., the Sawyer Act, to secure a declaratory judgment from the Hannibal Court of Common Pleas authorizing Hannibal to proceed with annexation of territory on the periphery of that city.

Later, on February 7, 1961, the Council adopted a resolution to amend the original petition by deleting from it certain landowners and their lands. Pursuantly, the City presented its amended petition and the court allowed it to be filed “over the objection of Defendants.” The defendants dismissed do not appeal. The defendants remaining in the suit after the amendment are now undertaking to appeal.

On us rests the duty in every controversy brought to this court to determine for ourselves whether we have jurisdiction, and this, whether the parties question our jurisdiction or not. Mo. Dig. Vol. 2, Appeal & Error, Key 23 p. 600. This we proceed to do, for unless the complaints brought to us are from final and appealable orders or judgments, we are without jurisdiction.

The appealing defendants who remain in the suit present two principal points: (1) the trial court wrongly allowed the cause, a class suit, to be “dismissed or compromised” by allowing the filing of the amended petition dropping some of the landowners and their lands, in violation of Section 507.070, V.A.M.S., Subsection 3, V.A.M.R. 52.08(c), directing in essence that no class suit may be “dismissed or compromised” without notice to all parties interested; and (2) in denying the (remaining) defendants as third-party plaintiffs the right by third-party petition to bring into the suit Harry Musgrove, Melvin Serenco and the Mus-grove-Serenco Realty Company as third-party defendants. All other arguments revolve around these two points and depend for their legal vitality oil them.

To say that this record is deplorably unsatisfactory is to put it mildly, for time and time again we scrutinize arguments in the briefs before us and then search the record at large and in vain for any slightest support for those arguments. V.A.M. R. 82.12 requires “The transcript on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision by either appellant or respondent, * * *.” The present transcript testifies to an almost complete disregard for this rule.

Fundamental it is that an appellate court cannot accept mere assertions in briefs, except when the parties are in agreement, concerning the basis of a trial court’s ruling, and that the court must look alone to the transcript itself to ascertain what the court did and its reason for doing so. LaRue v. Bloch, 215 Mo.App. 501, 255 S.W. 321; Key v. Key, Mo.App., 93 S.W.2d 256. We must take the transcript as we find it, and we cannot piece or inch it out by reliance on unsupported assertions in the briefs.

We examine appellants’ first point: That the trial court allowed the suit to be “dismissed or compromised” without any notice to the interested parties and that this resulted in dismissal of some of the parties and the dropping of their lands, leaving no adequate representation of the class. We are mindful of our ruling in Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., Mo.App., 308 S.W.2d 769, 772 (2, 3), that where “adequate representation is essential to the preservation of the rights of the class, an order that in effect denies adequate representation is reviewable by appeal” as a final order, notwithstanding the appeal is not from a judgment finally disposing of all parties and all issues in the cause, a condition ordinarily precedent to a final and appealable judgment. Section 512.020, V.A.M.S., notes 93-104; Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597. We look to the transcript presented to us to ascertain whether appellants’ complaints can and ought to be reviewed by us. For unless this transcript presents a controversy analogous to Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, the present complaints do not arise from a final and appealable order, do not constitute an exception to the general rule as the order in Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, and we are without jurisdiction.

Returning to the transcript, we find the following: The original and amended petitions are in the record, it is true. But neither bears a caption. The body of neither petition refers to any single individual defendant by name, but broadly refers to all defendants as “the Defendants” at all times. We have no way of ascertaining, except from mere assertion in appellants’ brief, what defendants were dropped and a for-tiori we cannot tell from the transcript whether dropping them prejudiced the suit or the class in any way. Added to this the original and amended petitions are both very lengthy and both contain legal descriptions of great length. Particular tracts of land are not described, only the entire tract to be annexed, and this court has no way of knowing from the transcript what lands were dropped from the original petition by the amended petition and by whom they were owned, and no one but a professional engineer or surveyor working on the ground could know. We believe it would have been entirely practical for the appellants to have presented to this court a transcript that would have furnished us with the decisive and vital information which this transcript leaves so palpably absent.

The briefs name Harry Musgrove, Melvin Serenco and the Musgrove-Serenco Realty Company as having been dropped and “also the property of many of the original defendants,” without even stating who the “many * * * original defendants” were or what lands they owned within the area of proposed annexation. It is impossible to tell from the transcript whether dropping any of these particular defendants and their lands and “many of the original defendants” and their lands, unnamed, and undescribed particularly,' was prejudicial to the suit or adequate representation of the class. In this whole transcript there is nothing relevant to this argument of denial of “adequate” representation except a lengthy motion “for Rehearing, Review and New Trial” claiming the dismissals were in violation of Section 507.070, V.A.M.S., Subsection 3; V.A.M.R. 52.08(c) ; Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra; and that they resulted in multifarious sorts of fatality and prejudice to the suit and to adequate representation of the class.

Here again we are confronted by the uniform rulings that a mere assertion of an action or an error urged in a motion for a rehearing or a motion for a new trial is “not evidence of the thing stated,” does not prove itself, and is of no effect or force unless supported by the transcript, and we do not have such a transcript before us. Noren v. American School of Osteopathy, 223 Mo.App. 278, 2 S.W.2d 215, 218; Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W.2d 876, 879; Mo.Dig. 2A, Appeal & Error, 712, 713(2); Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 585. We can place no reliance on this motion in ruling this cause. We must disregard it.

We recall the elementary principle that we must presume right rather than wrong action by the trial court in the absence of any evidence to the contrary, Lubrication Engineers, Inc., v. Parkinson, supra, of which there is none. On this transcript, we will not rely on this presumption for our ruling. We elect to dispose of this point for other reasons.

But if we desired to presume, our conclusion would be that this point is wholly without merit and that all defendants were notified, as required by the statute and the rule, and that no prejudice resulted from the amendment; for the transcript discloses that the amended petition was filed, and the dismissals were allowed, “over the objection of the Defendants,” all defendants. What “objection” was entered is not particularized in the transcript. How the defendants could object without being present in court, and how they could be present without notice of what was being done, are questions that leave us wondering why they persevere in saying they had no notice. But be this as it may, we are content to rule, and we are convinced we must rule, that the transcript on this aspect of the case is so entirely insufficient that a proper respect for the Supreme Court Rules of appellate procedure, particularly 82.12 (b), requires us to dismiss this point as one based on a transcript which fails to show an order resulting, as in Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, in that denial of “adequate” representation which we there held final and appealable. For to allow an appeal in this case on the transcript presented, hearing no analogy to Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, would set a precedent permitting litigant after litigant successively to bring to this court piecemeal, by separate appeals, issue after issue, almost ad infinitum, to the intolerable delay of the final disposition of all parties and the final termination of the litigation as a unit. This point is dismissed.

We examine appellants’ next point. Specifically, they say, “The Court erred and abused its discretion by overruling (sic) defendants, as Third Party' Plaintiffs, to bring Harry Musgrove, Melvin Serenco, and the Musgrove-Serenco Realty Company, because the defendants in a class action, represent all parties in the proposed to be annexed area, and were acting to represent all of the class from the encroachment by outsiders, in an independent action. Any representation that is not adequate may open the way to collusion or fraud which would sacrifice the rights of the absent members of the class.”

Urging us to hold the denial of the third-party petition to be an appealable order, appellants cite Webb-Boone Paving Co. v. State Highway Commission, 351 Mo. 922, 173 S.W.2d 580, and Bruun v. Katz Drug Co., Mo., 211 S.W.2d 918. Neither of these decisions bears any resemblance to the ruling made by the trial court in this cause. They cite City of St. Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23. All this decision rules that might be deemed of relevance is that there are two classes of intervention: (1) those where intervention is not indispensable to the enforcement of a right claimed by the intervenor, and (2), those where the right to intervene is by the statute made absolute, or where the claim can be established, preserved, or enforced in no other way than by intervention. In the first class, intervention is purely permissive and discretionary and an order denying it is not a final order or judgment reviewable on appeal. But in the second class, where intervention is essential to the preservation of the petitioner’s rights, the denial of it is a final order or judgment reviewable on appeal.

Appellants might have cited, as similar, State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257, 2 A.L.R.2d 216, and Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286, for all are to the same effect. Ratermann v. Ratermann Realty & Inv. Co., Mo.App., 341 S.W.2d 280. But these rulings do not reach, much less determine, the question which confronts us.

For appellants present to us no order denying them any absolute right to file a third-party petition. Since State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, l. c. 130, it has been the rule: “Under our statute * * * the granting by the trial court of a motion of the original defendant to implead a new third-party defendant is discretionary.” Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 803(6).

Appellants have no absolute right and they cannot look to these intervention cases as analogies supporting them in their claim that the order presented by this point is an appealable one. Indeed, they claim no absolute right, only an abuse of discretion.

We acknowledge that we said in Wegman v. Fendelman, Mo.App., 333 S.W.2d 290, 297(6,7), the “action in dismissing the third-party petition was responsive to the third-party defendants’ motion to dismiss, based upon failure to state a claim upon which relief could be granted, and constitutes, in itself, a final and appealable order.” (Emphases added). Quite enough it is to say that we are not dealing here with an appeal complaining of such an action. We deal here with the complaint that the trial court abused its discretion in denying the third-party plaintiffs’ petition. Moreover, the entire controversy as a unit, had been already ruled by the trial court. In consequence, we are not governed in this case by Wegman v. Fendelman, supra, for the appellants’ appeal here is only from the denial of the third-party plaintiffs’ petition, while the principal suit has been left in the trial court and is not now before us as a unit for decision. Accordingly, what was said in Wegman v. Fendelman, supra, cannot be argued as constituting a precedent here because the question before us now was not there “raised by the record, considered by the court, and necessary to a decision.” State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017, l. c. 1028.

Our view, in these circumstances, is that the order of denial from which the appeal is undertaken is not an order or judgment we have jurisdiction to review, because it does not constitute an exception to the rule that an order or judgment ordinarily must dispose of all parties and all issues in the cause to be final and appealable. Section 512.020, V.A.M.S., notes 93-104; Weir v. Brune, supra. Any other ruling, we say at the cost of repeating, would set a precedent permitting litigant after litigant successively to bring to this court piecemeal, by separate appeals, issue after issue, almost endlessly, to the intolerable delay of the final disposition of all parties and the final termination of the litigation as a unit.

Even if the order were an appealable one, and we say this only as an aside, we are confronted again just as much on this point by the gross deficiencies in the transcript as by those which frustrated us in our search for any facts supporting the first point made. There is absolutely nothing in this inadequate transcript exhibiting any abuse by the trial court resulting in opening “the way to collusion or fraud which would sacrifice the rights of the absent members of the class,” as appellants are claiming. Everything we said about the transcript in discussing the first point applies with equal force to this second point, and it is enough to add on this point, as we have said of the first point, that a proper respect for the Supreme Court Rules of appellate procedure, particularly 82.12(b), supra, would require us, in any event, to ignore this point on the ground that we have not been furnished with a transcript embracing any adequate facts supporting any abuse of discretion.

For all the reasons discussed, the rulings are not appealable and the appeal must be dismissed.

It is so ordered.

RUDDY, Acting P. J., and WOLFE, J., concur.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    REORGANIZED SCHOOL DISTRICT R-I OF CRAWFORD COUNTY, Missouri (Plaintiff) Appellant, v. REORGANIZED SCHOOL DISTRICT R-III OF WASHINGTON COUNTY, Missouri (Defendant) Respondent.
    No. 30797.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1962.

      G. C. Beckham, Steelville, for appellant.
    Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for respondent.
   WOLFE, Judge.

This action was instituted by Reorganized School District R-I of Crawford County, Missouri, against Reorganized School District R-III of Washington County, Missouri, for the purpose of securing a declaratory judgment fixing the boundary between the districts. There exists a dispute over certain areas in Washington County from which the defendant district has been receiving taxes. The plaintiff claimed that these areas are within its district and that the defendant has wrongfully been paid the taxes therefrom. There was a judgment for the defendant, and the plaintiff prosecutes this appeal.

It was alleged in the petition that the plaintiff Crawford County District embraced within its boundaries an area in Washington County which was formerly served by three common school districts. These were formerly Oak Hill Common School District No. 8, Metcalf Common School District No. 21, and Paige Common School District No. 22. It is alleged that the defendant district was receiving taxes from 12 sections of land properly within the plaintiff district and sought to have the boundary fixed by a decree of court.

The answer denied that the area in dispute was a part of the plaintiff district. It admitted that it was receiving taxes therefrom. It further set up the statute of limitations and laches.

Ordinarily matters affecting the legality of the organization of a school district cannot be inquired into except by quo warranto in the name of the state. This action, however, is between two school districts. In the case of Walker Reorganized School District R-4 v. Flint, Mo.App., 303 S.W.2d 200, it was held in a well reasoned opinion by the Kansas City Court of Appeals that a declaratory judgment action will lie in a dispute such as this between two school districts. We are in accord with that holding.

There are twelve sections in all, which each of the opposing districts claims as part of its district. The plaintiff Reorganized School District R-I of Crawford County was organized on June 28, 1949. The defendant Reorganized School District R-III of Washington County was organized November 1, 1949. Prior to the reorganization by vote of the district involved, each district had filed for approval a plan of reorganization, and the approved plan for each district was voted on and passed in the districts on the dates above mentioned. Both district plans as submitted and voted upon described the areas that they were to embrace by school districts serving the area at the time of the reorganization, and not by metes and bounds, but maps were submitted with the proposed plan of reorganization by both proposed school districts to the State Department of Education. These maps showed the boundaries of the old school districts.

Mr. Arthur L. Summers, of the State Department of Education, who holds and had held the position of Director of School District Reorganization and Pupil Transportation since 1948, testified on behalf of the plaintiff. He stated that he had official custody of the files pertaining to reorganization of school districts and produced those relating to the parties litigant. In these files were the maps purporting to show the areas included in each of the districts as it was proposed to be reorganized. The boundary of each of the common school districts indicated by the maps is in conformity with the plaintiff district contention, and shows all of the area claimed by the plaintiff to be within the plaintiff district. This is true of plaintiff’s maps and the maps submitted by the defendant in 1949.

Most of the evidence centers about Section 8, Township 39 North, Range 1 West, Washington County. The plaintiff Reorganized School District R-I of Crawford County contends that this section was part of the old Oak Hill Common School District No. 8, Washington County, at the time that district became a part of the plaintiff Reorganized School District R-I of Crawford County. The defendant contends that Section 8, Township 39 North, Range 1 West, was not a part of the Oak Hill District, but was a part of the Baker District at the time that district became a part of the defendant Reorganized School District of Washington County.

The earliest map introduced in evidence by plaintiff is in the minute book of the Baker School District for the years 1911 to 1919, and the map does not include Section 8 in the old Baker School District which became a part of the defendant district. Other old maps, one from the office of the County Superintendent of Schools and another from the County Clerk’s office, also show that Section 8 was in the Oak Hill District taken in by the plaintiff district R-I of Crawford County. All of the available minute books of the Baker School District were put in evidence by the plaintiff. Only the first book contained a map of the district, certified to by the Clerk of the District, and there were no minutes of any change. There were no minutes from 1919 to 1943 except for an entry in 1936. If minutes had been kept for this period, the books apparently were not available. Those of 1944 to 1958 were introduced in evidence, and these contained no plat of the Baker District.

It had been stipulated at the outset of the trial that as to Section 8 in controversy, taxes on that section had been paid to the Baker School District since the year 1940, and to its successor, Reorganized School District R-III of Washington County, after it became a part of that district. Prior to 1940 the taxes on that section were paid to the Oak Hill District, which in 1949 became a part of the plaintiff Reorganized District.

A witness who had been clerk of the Baker District from 1936 to 1956 was called by the plaintiff and testified that she knew of no election whereby Section 8 had been voted into the Baker School District, and the available minutes mentioned no such election. She said that while she was clerk she thought that Section 8 belonged to the Baker District and acted upon that assumption, but that she had never heard of a vote on it. She said that there was an election to vote in additional territory, but she did not think it was Section 8. She thought that some children from Section 8 had attended the Baker School, but she was not certain that they lived in Section 8.

The clerk of the plaintiff Crawford District testified that she had been unable to locate any records of the old Washington County Common School Oak Hill No. 8, now a part of the plaintiff district. She had located one book of the old Paige District, but this was of little probative value. The entries were few, but in no way indicated any change in the boundaries of the district.

There was testimony by other witnesses that there had been no change in the Baker District, and this, from all records available, never did include Section 8 for which the defendant is contending.

The clerk of the county court testified that the only record he had of the districts in question was the map mentioned, which corresponds to the plaintiff’s map. He stated that he had no record of any change in the districts and that the tax changes made were done by the assessor, who certified to the clerk the school district to which the taxes were to be allocated.

The superintendent of the plaintiff district testified that he-had held that position for five years. He said that he had made inquiry about the area in dispute, and that in so far as he could ascertain, there had been no children living in the disputed area during the years immediately preceding the formation of R-I of Crawford County,, and that there were none living there now.

He stated that it first came to his attention, about two years prior to the time of trial, that the plaintiff district was receiving no taxes from the area, and he then requested the School Board, through its attorney, to do something about it. On cross-examination he stated that this district had no bus routes into the area. He also stated on cross-examination that the defendant district would be reasonably convenient over Highway 114.

By the stipulated facts it was agreed that prior to 1940 the taxes on Section 8 had been paid into the Oak Hill District, later taken into the plaintiff district, but that since that time they were paid into the Baker District and later into the defendant district when the Baker District was taken into it.

Section 6, Township 38 North, Range 1 East, according to the stipulation, had been taxed since 1932 in the Ebo District, and later in its successor, the defendant district. Prior to 1932, taxes were paid into the Paige District, which is now a part of the plaintiff district.

Sections 7 and 8, Township 38 North, Range 1 East, according to the stipulation, had been taxed as in the defendant district since 1951, but prior to that taxes were received by plaintiff district and the Paige District, which it took in.

The stipulation further states that the same situation took place in regard to Sections 17, 18, 19, and 20, Township 38 North, Range 1 East, except that the defendant Washington County District did not start receiving these taxes until 1956. Prior to that they were paid to the plaintiff Crawford County District from the date of its reorganization up to 1956. Prior to that the taxes were paid to the Paige District, which it took in.

It was stipulated that the taxes on Section 29, Township 38 North, Range 1 East, had been paid into the Paige District up to 1948, and that thereafter they were paid into the Flint Hill Common School District, or its successor, Washington County R-III, the defendant.

The other sections in controversy are 30, 31, and 32, Township 38 North, Range 1 East. These were also in the Paige District, which was taken in by Crawford County District and which received taxes until 1958, after which the taxes were paid to the defendant Washington County District.

The only witnesses offered by the defendant district testified that it was generally considered that Section 8 was in the Baker School District. One testified that a man named Mercer had lived in a cabin in Section 8, and that his children had attended the Baker School. The Superintendent of Washington County R-III of the defendant district testified that it was generally thought that Section 6 was in his district, but he knew of no children living there. All of the area in question, with the exception of Section 8, is timberland, uncultivated and uninhabited. Section 8 has recently been developed for mining purposes.

Upon this evidence the trial court found that the Baker School District had enumerated children in Section 8 in the Baker District, and that for a period of years taxes had been collected from the other sections by the defendant district without challenge, and that bus transportation was available in the defendant Washington County District; that no such transportation had been furnished by the Crawford District, and that the area in dispute could therefore be better served by the defendant district. It therefore held that the plaintiff district had failed to show any legal reason for barring the defendant district from collecting taxes and exercising school jurisdiction over the disputed territory. It further found that the plaintiff’s action was barred by laches and limitations.

As stated, plaintiff Crawford County School District R-I appealed from the judgment entered. The respondent asserts that the judgment of the court was for the proper party in that the party plaintiff, the appellant here, did not sustain its burden of proof. We are cited to three cases, two of which are suits to quiet title to real estate, and the other is a suit to set aside a tax deed. No title to real estate is herein litigated, so we do not find such cases analogous. There is, however, no doubt that the burden here, as in other cases, rests upon the plaintiff.

Extending this argument to the evidence, the respondent states that Exhibits B-l, C-l, and D-l were of no probative value, citing us to Ensminger v. Stout, Mo.App., 287 S.W.2d 400, which holds that the conclusions of a police officer contained in a police report were not admissible. We are also cited to Sorrell v. Hudson, Mo.Sup., 335 S.W.2d 1, relating to the admissibility of a city ordinance without compliance with Section 490.240, RSMo 1949, V.A.M.S., which requires certification of the ordinance or other proof of its authenticity.

We do not see that these cases relate to evidence such as we have before us. The three maps of which respondent complains were in the files of the State Department of Education. Exhibit B-l was a map submitted by the plaintiff in 1949, and the other two exhibits were maps submitted by the defendant that same year. All of the maps were submitted by the respective Boards of Education of the two counties and were in the state file relating to the reorganized school district of the county submitting them. They were records properly received in evidence under and by virtue of Section 490.240, RSMo 1949, V.A.M.S. The custodian of the records identified them, told of the mode of their preparation, and said they were made in the course of the school business of each county. These maps leave no doubt that the boundaries of the old common school districts were exactly as the plaintiff contends. They are fortified as they relate to Section 8 by the Baker School District minute book. This old book carried a clear certification of the sections embraced within it, and it does not include Section 8 for which the Washington County District R-III, respondent, contends.

Two other maps, one from the files of the county court, and another from the file of the county superintendent of Washington County, are questioned by the respondent as to their admissibility. But we do not need to consider these, for the record evidence of the boundaries of the old common school districts is conclusive without these two maps. It all shows that the sections involved were voted into and became a part of the plaintiff district in 1949.

The law as it relates to the establishment of districts such as those under consideration was discussed by the Missouri Supreme Court en banc in State ex inf. Eagleton et al. v. Van Landuyt et al., 359 S.W.2d 773. In it the court stated that the establishment of public school systems is primarily a function of the state, and on questions of organizational disputes involving a district extending into an adjoining county, the final solution rests with the State Board of Education under Section 165.673, RSMo 1949, V.A.M.S.

Certainly a plan approved without dispute — and here there was none — must have the same finality. Reorganized School District R-I of Crawford County was established in 1949. Its boundaries had been determined and approved by the state board. This was final, and the district, by a subsequent vote then established, included within it all of the area for which it contends.

Respondent asserts that the court properly held that the statute of limitations had run against the plaintiff’s action, and we are cited to Section 516.010 relating to limitation of actions for recovery of land, and to Sections 516.110 and 516.120 relating to personal actions. Section 516.360 provides that these limitations shall apply to-the state. This action is neither for the recovery of real property or a personal action within the statute. The action is to enforce a public right, and it is therefore not within the statutes mentioned. State ex rel. Wyatt v. Cantley, 325 Mo. 67, 26 S.W.2d 976. As to laches it was stated in State ex rel. Taylor v. Blair, 357 Mo. 586, 210 S.W.2d 1, l. c. 3:

“ ‘Laches on the part of the government in bringing suit is said not to be a defense in the case of a claim which is founded on sovereign right. It is also observed that the laches of the officers of the government cannot be set up as a defense to a claim which is made by the government.’ 19 Am.Jur., Equity § 495. In 30 C.J.S., Equity, § 114, it is said: ‘The doctrine of laches cannot be applied against public rights. While the contrary has been held, by the weight of authority the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest, or, as the rule is sometimes expressed, the laches of its officers or agents will not be imputed to the government. This rule applies, however, only to suits brought by the government in its sovereign capacity to enforce or to protect a public or governmental right; if it sues for the use and benefit of an individual, or for the enforcement or the protection of a private and proprietary right rather than a public or governmental right, laches is pleadable against it the same as against an individual.’ ”

It is our duty to try the case de novo on appeal, and we find the boundaries of the plaintiff school district were fixed in 1949 and remained unchanged since then. For some wholly unexplained reason, and completely without authority of law, the taxes of certain sections of the plaintiff district have been erroneously transferred to the defendant district at various times since then. There are no school children in the entire area in question, and there have not been since 1949.

For the reasons stated, the judgment is reversed and remanded to the Circuit Court with directions to enter a decree for the plaintiff, holding all twelve sections to be within the boundaries of Reorganized School District R-I of Crawford County.

ANDERSON, P. J., concurs.

RUDDY, J., not sitting.


author: DOERNER, Commissioner.

text:
    O’HANLON REPORTS, INC., National Inspection Bureau, and Standard Accident Insurance Company, Plaintiffs-Appellants. v. Ben NEEDLES, d/b/a Ben Needles & Son Hauling and Express Company, Willie Johnson, and Utilities Insurance Company, Defendants-Respondents.
    No. 31012.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Leritz & Leritz, Joseph L. Leritz, St. Louis, for plaintiffs-appellants.
    Schwartz, James & Sweet, Wilbur C. Schwartz, Grove Sweet, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

Plaintiffs O’Hanlon Reports, Inc. and National Inspection Bureau, the joint employers of one Lawrence E. Rosebrock, and Standard Accident Insurance Company, their workmen’s compensation insurer, seek by this action to enforce an alleged right of subrogation against the third party tort-feasor and his liability insurer. After the jury had been impaneled and plaintiffs had concluded their opening statement, defendants moved that plaintiffs’ claim be dismissed for the reason that under the facts outlined in the opening statement no cause of action existed against defendants. After a lengthy discussion between the court and counsel it was agreed between the parties that in ruling on the motion the court should take into consideration the facts as stated in plaintiffs’ opening statement, Count II of plaintiffs’ petition (to which further reference will be made), and a stipulation by defendants that they had not reimbursed plaintiff Standard Accident Insurance Company for the compensation it had paid the injured employee. Thereupon the court directed the jury to return a verdict for defendants, judgment conforming therewith was entered, and after an unavailing motion for a new trial plaintiffs appealed.

The facts as outlined in plaintiffs’ opening statement, which are to be taken as undisputed, were these: On July 31, 1951, Lawrence E. Rosebrock, an employee of plaintiffs O’Hanlon Reports, Inc. and National Inspection Bureau, was injured in the city of St. Louis in an accident arising out of and in the course of his employment when his automobile was struck by a truck owned by defendant Needles, doing business as Ben Needles & Son Hauling and Express Company, and operated by defendant Johnson. Shortly thereafter (the record in the main is devoid of precise dates), Rosebrock employed counsel and filed a personal injury action for $47,000 against Needles. Rosebrock was disabled and unable to work, and plaintiff Standard Accident Insurance Company, the insurer, began to pay him compensation. Thereafter, on October 25, 1951, Standard Accident notified these defendants by letter of its claim for reimbursement for the compensation it was paying Rosebrock. As far as the record shows, defendants did not answer the letter. Standard Accident continued to pay Rose-brock compensation until sometime in October 1952, and in all paid him a total of $1,262.50. Standard Accident knew that Rosebrock had filed suit against Needles, and that Needles’ liability insurer, Utilities Insurance Company, was defending it on his behalf, but Standard Accident did not seek to intervene in that action. A settlement was negotiated by Rosebrock’s counsel, whereby Utilities Insurance paid Rose-brock and his wife the sum of $12,500.00, and on October 21, 1952, Rosebrock dismissed his suit against Needles, with prejudice.

In addition to the foregoing facts given in the opening statement, the record also shows that this action was instituted by the plaintiffs on July 28, 1956, by the filing of a petition containing two counts, the first of which was directed at defendants, and the second at Rosebrock. In Count I plaintiffs pleaded in substance the foregoing facts, alleged that they did not learn of the settlement by Rosebrock of his suit until after it had been made, and prayed judgment against the defendants for $1,-262.50. In Count II plaintiffs incorporated the same facts by reference, and in addition alleged (1) that at the time Standard Accident undertook to pay compensation, Rosebrock and his attorneys agreed that they would reimburse it out of any recovery made in Rosebrock’s suit against Needles; and (2) “* * * that under the provisions of the Missouri Workmen’s Compensation Act the defendant Lawrence E. Rosebrock became and was constituted a Trustee to hold for the use and benefit of plaintiff Standard Accident Insurance Company, from the aforesaid payment, the compensation that had been paid to him in the sum of One thousand two hundred sixty-two and 50/100 Dollars ($1262.50) by the plaintiff Standard Accident Insurance Company; that under the provisions of said law plaintiffs were subrogated to any recovery made by defendant Lawrence E. Rosebrock to the extent of compensation paid to him by said plaintiff. * * ⅜ ” The record further shows that after the case had been assigned to a jury division for trial plaintiffs voluntarily dismissed Count II of their petition against Rosebrock, without prejudice, and prosecuted their action against only defendants Needles and Utilities Insurance.

Plaintiffs’ theory of their case is that by Section 287.150, RSMo 1959, V.A.M.S. they were given the right of subrogation against Needles for the compensation they had paid Rosebrock; and that the settlement made by Needles of the suit brought against him by Rosebrock did not foreclose or extinguish their right to indemnification, even though the amount paid Rosebrock in settlement was far in excess of the total compensation. Plaintiffs concede that under the many cases which have construed Section 287.150 (see Cunliff’s Compensation Digest), when Rosebrock sued Needles Rosebrock became, in part at least, a trustee of an express trust for plaintiffs. General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442; McKenzie v. Missouri Stables Inc., 225 Mo.App. 64, 34 S.W.2d 136. They also concede that when Rose-brock received the $12,500 paid in settlement he became the trustee of an express trust for plaintiffs to the extent of the compensation of $1,262.50, which they had paid him. McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788; Giambelluca v. Missouri Pac. R. Co., Mo., 320 S.W.2d 457; Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33; McKenzie v. Missouri Stables, Inc., supra. But they argue that, “ * * * Though the employee, by operation of law, may have held part of his settlement as trustee for the employer, this fact should not serve to destroy the employer’s right against a negligent third party. Appellants know of no rule of law that would require one to proceed only against a trustee in such a case.”

We cannot agree with plaintiffs’ contentions. The effect of their argument would be to allow a double recovery against the third party, which was condemned in Schumacher v. Leslie, supra, l. c. p. 919 of 232 S.W.2d, as “ * * * an evil to be avoided * * If Needles had paid the $12,500 to Rosebrock in satisfaction of a judgment, plaintiffs could have looked only to Rosebrock, their trustee, for the recovery of the compensation they had paid. Giambelluca v. Missouri Pac. R. Co., supra; Schumacher v. Leslie, supra; McKenzie v. Missouri Stables, Inc., supra. The cases of McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., supra, and Sommers v. Hartford Acc. & Indem. Co., Mo.App., 277 S.W.2d 645 indicate that the same result follows when a settlement is made after a judgment has been obtained. We can see no logical reason why the rule should he different when the settlement is made before judgment as long as the amount paid in settlement is not inadequate or unfair, or a fraud on the employer or his insurer.

Plaintiffs were at all times aware that Rosebrock had sued Needles on their behalf, as well as on his own. They had the right to intervene in that action, had they so desired, Beck v. Moll, Mo.App., 102 S.W.2d 671, McKenzie v. Missouri Stables, Inc., supra, but they elected not to do so. They may have decided to let Rosebrock bear the expense of the litigation, as Section 287.150 required before it was amended. Zasslow v. Service Blue Print Co., Mo.App., 288 S.W.2d 377; or they may have relied on Rosebrock’s express promise to reimburse them, as they pleaded in Count II of their petition (which plaintiffs specifically requested the court to take into account). Whatever may have been their reason, Rosebrock, as they admit, received the settlement as their trustee, and it is to Rosebrock they should look for reimbursement. Needles should not be required to pay twice.

Plaintiffs cite Everard v. Woman’s Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51 and Smith v. Yellow Cab Co., 288 Pa. 85, 135 A. 858. In the Everard case the third party settled with the employee for a sum less than the compensation paid by the employer, and the court held that the settlement did not extinguish the employer’s right of subrogation because it was inadequate and a fraud on the employer. Plaintiffs make no claim of inadequacy or fraud in the instant case, and the amount of the settlement was almost ten times the compensation. As to the Smith case, it does not appear that the Pennsylvania courts recognize the doctrine of trust relationship as it has been developed in this state since McKenzie v. Missouri Stables, Inc., supra.

Plaintiffs also contend that their right of subrogation is analagous to that acquired by a collision insurance carrier which pays its insured for the damage to the insured’s automobile caused by a negligent third party and takes an assignment of the insured’s whole claim for such loss. In the case cited by plaintiffs, General Exchange Insurance Corporation v. Young, Mo.App., 206 S.W.2d 683, affirmed 357 Mo. 1099, 212 S.W.2d 396, it was held that under those circumstances a subsequent settlement by the insured for his personal injuries and property damages did not bar an action by the insurance carrier against the third party tort-feasor who had been given prior notice of the assignment. The defendant in that case contended that the insured could not split his cause of action. This court held that in cases involving sub-rogation under insurance policies an exception existed to the general rule against splitting a cause of action. The Supreme Court thought it was more accurate to say that by the assignment “ * * * there has been no split of the cause of action, but the creation of two separate causes of action.” 212 S.W.2d 396, 400. Regardless of the difference in terminology, the fact which was considered decisive and the basis for both opinions was that the insured had assigned his whole claim for his entire property loss to the insurance carrier. It was held that after making such an assignment the insured had no further right or interest in the claim for property damages (and in fact, he had not sued for them); and that the insurance carrier thereby became “ * * * the real party, and the only party, interested in collecting property damages * * 212 S.W.2d 396, 401.

By Section 287.150 the employer is not subrogated to the whole claim of the employee. In fact, he is not even subro-gated to the employee’s whole claim for lost wages. His right of subrogation is limited to the compensation paid or payable. Nor does the statutory subrogation create two separate causes of action, as did the assignment in the General Exchange case. Section 287.150 does not take away from the employee his common law right of action against the third party tort-feasor, Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. Regardless of the employer’s rights of subrogation, the employee remains a real party in interest, and may bring a suit for all of his damages. McKenzie v. Missouri Stables, Inc., supra. In fact, he must do so, for he may not defeat the employer’s right to subrogation by only suing for what he claims to be non-compensable elements of damages. Sommers v. Hartford Acc. & Indem. Co., Mo.App., 277 S.W.2d 645. In short, either the employee or the employer (or both together) may sue the negligent third party for all elements of the employee’s damages, and whichever brings the action becomes the trustee of an express trust for the benefit of the other. General Box Co. v. Missouri Utilities Co., supra; McKenzie v. Missouri Stables, Inc., supra. Thus the right of sub-rogation given to the employer by Section 287.150 is not analagous to that acquired by the insurance carrier in the General Exchange case. Actually, while the word “subrogated” is used in Section 287.150, as pointed out in McKenzie v. Missouri Stables, Inc., 34 S.W.2d 136, 141, “ * * * it is indemnity, and not true subrogation, for which the act provides.”

While the question is somewhat academic, since the judgment for defendants should be affirmed, there is an additional reason why plaintiffs could not recover in this action against defendant Utilities Insurance. The charge in plaintiffs’ petition was that defendant had in force and effect a liability insurance policy covering defendant Needles’ truck. Rose-brock, the injured employee, had no cause of action against the third party’s automobile liability insurer, Faught v. Washam, Mo., 329 S.W.2d 588; State ex rel. Anderson v. Dinwiddie, 359 Mo. 980, 224 S.W.2d 985; Haines v. Harrison, 357 Mo. 956, 211 S.W.2d 489, nor do plaintiffs, as his alleged subrogees.

For the reasons stated, the Commissioner recommends that the judgment should be affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

ANDERSON, P. J., and MARSHALL CRAIG and WILLIAM M. KIMBERLIN, Special Judges, concur.


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    Bob TRIPLETT, Respondent, v. Ethel WYATT, Executrix of the Estate of Bige Wyatt, Deceased, Ethel Wyatt, Ophelia Sampson, Belma Triplett, et al., Defendants, Ethel Wyatt, Executrix of the Estate of Bige Wyatt, and Ethel Wyatt, Appellants.
    No. 31121.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion to Modify for a Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1962.

      Sidney R. Redmond, St. Louis, for defendants-appellants.
    Librach, Heller & By.rne, William P. Byrne, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an action for a declaratory judgment to determine the ownership of certain United States Treasury bonds of the face value of $11,500. The court decreed that plaintiff was the owner, and defendants Ethel Wyatt, individually and as Executrix of the Estate of Bige Wyatt, deceased, appealed.

Plaintiff has moved to dismiss the appeal on the grounds that the defendants’ brief fails to comply with Civil Rule 83.05, V.A.M.R. For their statement of facts the defendants merely digested the pleadings and the testimony of each witness. This is not a compliance with Rule 83.05, although the proper form of statement may be followed by a statement of the testimony of each witness, if desired. Swope v. Emerson Electric Mfg. Co., Mo., 303 S.W.2d 35; Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109. Plaintiffs also criticize, with some justification, certain points relied on. However, in the interests of justice we have decided to overrule the motion to dismiss and to consider the appeal on its merits, Civil Rule 83.09, but our action should not be construed to mean that the .rules may be disregarded or ignored with impunity.

Defendants have raised eight points on appeal. While variously stated, in three of them the contention is made that the evidence is not sufficient to support the judgment and decree. In the remainder defendants seek a reversal of the judgment because of alleged errors in the admission and exclusion of evidence. Of course, we try a case of this nature de novo and are not required to reverse a judgment on account of incorrect rulings on evidence. Civil Rule 73.01; In re Diehl’s Estate, Mo.App., 239 S.W.2d 523. In our review of a court-tried case we do not consider errors, as such, in the admission or exclusion of evidence, but in arriving at our findings and conclusions we consider only that evidence which was properly admissible, whether admitted or excluded below. Louis v. Andrea, Mo., 338 S.W.2d 96.

The evidence reveals that starting in 1936, the deceased, Bige Wyatt, doing business as an individual under the name of Wyatt’s Taxicab Company, operated a fleet of taxicabs under the authority of various certificates of convenience and necessity granted him by the Board of Public Service of the City of St. Louis. Certain ordinances required the holder of a certificate to post a surety bond with the Board, with the City as obligee, conditioned upon the payment of judgments for personal injuries and property damages .resulting from the holder’s negligence in the operation of his taxicabs. Pursuant thereto, on September 24, 1948, Wyatt posted a bond in the amount of $11,500 with the Board, in which he was the principal and the Massachusetts Bonding and Insurance Company was the surety. To indemnify the Bonding Company from any loss on the surety bond, Wyatt deposited with it the four bearer 2½% Treasury bonds in dispute, two being for $5,000, one for $1,000, and one for $500, all with semiannual interest coupons attached. At the time the deposit was made Wyatt and the Bonding Company executed an instrument titled “Non-Negotiable Receipt and Agreement for Collater-als”, by which it was agreed that the Bonding Company might use the collateral to reimburse itself for any losses or expenses experienced on the surety bond, and that if none were incurred it would return to Wyatt or his duly authorized representative the collateral or any balance or proceeds thereof which remained in its hands.

On July 16, 1948, Wyatt, his wife, defendant Ethel Wyatt, and one Ophelia Sampson executed Articles of Incorporation for a corporation named Wyatt Taxi, Inc. The Articles were filed with the Secretary of State on July 19, 1948, and a Certificate of Incorporation was issued the same day. Wyatt Taxi, Inc. then filed with the Board of Public Service an application for a certificate of convenience and necessity, as a step in its efforts to take over the taxicabs operated by Wyatt as an individual. The Board denied the application on September 21, 1948.

Wyatt thereafter continued to operate in his individual capacity. But on December 5, 1950, he, Mrs. Wyatt, and Ophelia Sampson executed new Articles of Incorporation for another corporation, to be named Wyatt Taxicab Company. These were filed.with the Secretary of State, and a Certificate of Incorporation issued by him on December 27, 1950. Wyatt Taxicab Company then filed with the Board of Public Service, on March 20, 1951, an application for a certificate. The Board issued a certificate to Wyatt Taxicab Company on April 25, 1951, conditioned upon its compliance with certain ordinances, and further conditioned upon the corporation assuming all liabilities of Wyatt incurred by him in connection with his operation of the taxicabs prior to April 24, 1951. Wyatt’s individual certificates were revoked.

Under the ordinances previously referred to Wyatt Taxicab Company was required to file a surety bond in order to obtain its certificate. Instead of filing a new bond with the Board, the corporation filed a rider or amendment to the bond posted by Wyatt, by which the Bonding Company agreed that the surety bond was amended to name Wyatt Taxicab Company as the principal, effective as of April 24, 1951. As to the collateral he had deposited, Wyatt wrote the Bonding Company a letter dated December 11, 1951, the body of which read:

“ T hereby authorize the Massachusetts Bonding and Insurance Company to transfer monies held as collateral on of Bige Wyatt d/b/a Wyatt Cab Company now known as Wyatt Taxi Cab Company, Inc.
“ T hope this matter will be taken care of at the earliest possible date.’ ”

Wyatt Taxicab Company, with Wyatt as president, operated the business until 1954. By a written Sale and Purchase Agreement dated July 31 of that year, Wyatt agreed to sell, and plaintiff agreed to buy, “ * * * all of the no par common stock issued and outstanding amounting to 1050 shares of the common stock of the Wyatt Taxicab Company, Inc. * * * ”, for the sum of $35,000. The Agreement provided that plaintiff was to pay Wyatt $3,000 in cash, and the balance, together with interest thereon at 6%, was to be evidenced by 78 notes for $500 each, the first to be payable September 15, 1954, and the remainder to become due in numerical order in each succeeding month. It was further provided in the Agreement that Wyatt was to hold the certificates of stock as collateral until the last note was paid, and there was introduced in evidence a receipt from Wyatt to plaintiff acknowledging receipt of three certificates for 1050 shares to be held as collateral.

Prior to his purchase of Wyatt’s stock in Wyatt Taxicab Company plaintiff owned all of the stock in St. Louis Cab Company, which likewise held a certificate of convenience and necessity to operate cabs in the City of St. Louis. Massachusetts Bonding and Insurance Company was also the surety on the bond of St. Louis Cab Company posted with the Board of Public Service. Plaintiff operated both corporations as separate entities until late in 1956 or early in 1957, when he merged Wyatt Taxicab Company into St. Louis Cab Company. The Bonding Company thereupon cancelled the surety bond which had been amended to name Wyatt Taxicab Company as principal, and by an endorsement increased the surety bond of St. Louis Cab Company from $13,500 to $15,000. Plaintiff continued to operate the St. Louis Cab Company until July 15, 1957, when he sold all of his stock in that corporation to Marcella Cab Company for $65,000. By the terms of the written sales agreement, introduced in evidence, it was provided: “That Bonds now held by the Massachusetts Bonding Company in the amount of $26,500 are to be excluded from this sale and remains the personal property of Bob Triplett.” Both plaintiff and his accountant, P. J. Parnas, testified that the St. Louis Cab Company was indebted to plaintiff, and that either before the sale of stock to Marcella Cab Company, or in connection therewith, the St. Louis Cab Company transferred to plaintiff its interest in all bonds on deposit with the Bonding Company as collateral, including the $11,-500 of Treasury bonds in dispute.

It appears from the testimony of Stanley M. Tugel, superintendent of the Bond Department of the Bonding Company’s St. Louis office, that physical possession of the Treasury bonds originally deposited by Wyatt in 1948 was at all times held by the Treasurer’s Department at the home office in Boston. As the interest coupons matured each six months, in June and December, it was the practice of the Treasurer’s Department to detach the coupons and send them to the St. Louis office. That office, in turn, notified Wyatt, and after its incorporation, Wyatt Taxicab Company, that the interest coupons might be obtained by calling for them and signing a receipt. It will be recalled that Wyatt sold his stock in the corporation to plaintiff on July 31, 1954. The following December the Bonding Company notified Wyatt that the December 15 coupons were available. Wyatt replied by a letter dated December 22, 1954, the body of which read:

“ Wyatt Taxicab Company, Inc. was sold to Mr. Robert Triplett, 4837 Page Avenue, on July 31, 1954.
“ ‘Mr. Triplett will pick up the interest coupons which were due December 15, 1954 on the U. S. Treasury Bonds held in connection with the taxi bond.
“ ‘I am sending him your letter and a copy of this notice to you. Thanks very much for your kindness in writing me.’ ”

Tugel testified that thereafter the local office of the Bonding Company continued to send the notices to Wyatt Taxicab Company, but that the coupons were called for and delivered to plaintiff, or his representative, until Wyatt Taxicab Company was merged into St. Louis Cab Company in 1957. After that, the notices were sent to plaintiff as an individual, and he continued to call for and was given the coupons. Tugel also testified that neither Wyatt nor anyone on his behalf ever complained that the coupons were being improperly delivered.

Late in 1959 the Treasurer’s Department of the Bonding Company changed its system of handling the interest coupons. It retained for its own account those which fell due in December, and in their stead sent a check for the interest, made payable to Bige Wyatt, doing business as Wyatt Taxi. According to Tugel, the check was made payable to Wyatt because the Underwriting Department of the Bonding Company had never notified the Treasurer’s Department that Wyatt had incorporated his business in 1951 and that the surety bond had been amended to name Wyatt Taxicab Company as principal. The check for the interest coupons eventually reached Mrs. Wyatt, who had been appointed executrix of her husband’s estate following his death on November 16, 1959. The right to the proceeds of it, and another issued in June 1960, apparently precipitated the dispute between plaintiff on the one hand, and Mrs. Wyatt, individually and as executrix on the other, as to the ownership of the Treasury bonds, and this suit followed. Hanover Insurance Company, successor to Massachusetts Bonding and Insurance Company, appeared below in the role of stakeholder. The contesting parties do not dispute the claimed right of the Bonding Company, under the collateral agreement, to hold the Treasury bonds until the expiration of the statutory period of limitations against Wyatt Taxicab Company, and they stipulated that the Bonding Company was to be allowed the sum of $500, chargeable against the collateral, as a reasonable attorney’s fee for the services necessarily incurred in connection with this litigation.

It is readily apparent that the decisive issue of fact is whether the Treasury bonds were a corporate asset of Wyatt Taxicab Company at the time plaintiff purchased Wyatt’s stock therein. If they were, then the transfer of all of the stock to plaintiff included all of the assets of the corporation, together with all rights and liabilities incident to ownership of such shares. Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 330 S.W.2d 771; Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731. And the subsequent merger of Wyatt Taxicab Company into St. Louis Cab Company, and the conveyance of the bonds to him by the latter, would complete plaintiff’s chain of title. The trial court found that the Treasury bonds became and remained an asset of the Wyatt Taxicab Company at the time plaintiff bought the stock from Wyatt, and we are of the opinion that there is an abundance of evidence, both direct and circumstantial in nature, to support the finding.

Plaintiff read into evidence the deposition of P. J. Pamas, a certified public accountant, who testified that he had served as Wyatt’s accountant from 1936 until his death in 1959, and that he was then acting as the accountant for Mrs. Wyatt. Parnas identified and there were admitted into evidence at the trial, over defendants’ objections, certain financial records marked Exhibits 1, 1-A, 2 and 3. The witness identified Exhibit 1 as a duplicate original statement of the assets conveyed to the corporation formed by Wyatt in 1948. We shall disregard this exhibit for the reason that it is apparent on its face that it pertains to the corporation named Wyatt Taxi, Inc., formed by Wyatt in 1948 when he unsuccessfully sought authority from the Board of Public Service to operate in a corporate form. Wyatt Taxicab Company, the corporation with which we are concerned, was not formed until December, 1950.

Parnas testified that when Wyatt Taxicab Company was incorporated and commenced to do business in 1951, he set up the company’s books of account to show the capital with which it began operation. He conferred with Wyatt and prepared a work sheet to show what should be transferred, and testified that the corporate books he set up contained the same figures. The work sheet was identified as Exhibit 1-A. Among the assets listed thereon was “Investment Bonds — $11,539.38.” Parnas stated that to his own knowledge this item included the $11,500 of U. S. Treasury Bonds which are the subject of this suit, plus the interest then accumulated thereon. Both Parnas and Richard B. Green, secretary of Marcella Cab Company, testified that the books and records of Wyatt Taxicab Company and St. Louis Cab Company had been delivered to Marcella when it acquired the stock of St. Louis Cab in 1957. Green stated that such books and records were misplaced when Marcella later moved its office. And both Parnas and Green testified that they had each made a search but had been unable to find them. Proof having been made of the loss of the original books of account, Exhibit 1-A, prepared by Parnas and testified by him to be an accurate statement of what the books showed, was admissible at the best secondary evidence. Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S.W. 904; Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001; Wilson v. Supreme Liberty Life Ins. Co., Mo.App., 343 S.W.2d 649. Parnas’ independent recollection of the facts, refreshed by his work sheet, was-likewise admissible. Schroer v. Schroer, Mo., 248 S.W.2d 617.

Exhibit No. 2 was identified by Parnas as a duplicate original of a financial statement he prepared for Wyatt Taxicab Company covering its fiscal year ending April 30, 1954. The exhibit was comprised of a balance sheet, and an operating statement showing receipts and disbursements. The balance sheet included as part of the corporate assets the item: “Government Bonds (Cost) — $11,539.38,” which Parnas testified were the bonds in dispute, carried on the corporation’s books at the same figure as originally entered. The operating report portion of the exhibit showed the receipt of income from: “Government Bond Interest — $287.50.” Parnas testified that this was interest on the subject bonds, and that it was entered on the corporation’s books as income, and reported accordingly on its income tax returns. He also stated that this financial statement was submitted to plaintiff preceding plaintiff’s purchase of Wyatt’s stock, to let plaintiff know the financial condition of the company at the end of the last fiscal year. Exhibit 2, being a duplicate original, was admissible without proof of loss of the original. Schroer v. Schroer, supra.

Exhibit 3 was a book containing twelve sheets, each of which is a separate operating statement for the individual months from January, 1954 to December, 1957, inclusive. The statements for the months of January, June, and December each contain an income entry of “Bond Interest- — -$143.75.” Parnas testified that he prepared each statement in Exhibit 3, and that the book was one of the records of the corporation which was turned over to plaintiff when plaintiff bought Wyatt’s stock. Parnas also said that after the sale he continued to serve as accountant for Wyatt Taxicab Company, and that while it was in existence the company reported the interest on the Treasury bonds as income. Being one of the original records of the corporation, the exhibit was properly admitted in evidence.

We think it is clear from the testimony of Pamas and Exhibits 1-A, 2 and 3 produced by him that the bonds in question became part of the corporate assets of Wyatt Taxicab Company at the time it commenced to do business, and that they remained such at the time Wyatt sold his stock in that company to plaintiff. If any further evidence was needed to support that conclusion it was supplied by the evidence as to Wyatt’s actions and attitude regarding the bonds. By his letter of December 11, 1951, shortly after Wyatt Taxicab Company was incorporated and substituted as principal on the surety bond, Wyatt authorized the Bonding Company to hold as collateral for the amended bond the “monies” which it had been holding when he was principal. Of course, Wyatt had no money on deposit with the Bonding Company, and it is obvious that by the word “monies” he meant the subject Treasury bonds then held as collateral. Defendants argue that since the collateral receipt issued to Wyatt was a non-negotiable instrument, it could be transferred only by an assignment, citing State ex rel. Gentry v. Hostetter, 343 Mo. 1090, 125 S.W.2d 72. Assuming that to be true, Wyatt’s letter constituted the assignment. Furthermore, when the Bonding Company in December, 1954, advised Wyatt that the current interest coupons were available, Wyatt by his letter of December 22, 1954 informed the company that Wyatt Taxicab Company had been sold to plaintiff, and that plaintiff would pick up the coupons. Thereafter, according to Tugel, Wyatt never demanded or sought to obtain the interest coupons prior to his death in 1959.

The record discloses that Wyatt was an experienced businessman, with varied and extensive financial interests. In addition to operating a taxicab business since 1936 he owned and ran a filling station, engaged in the real estate business, invested extensively in real estate, and was an insurance broker for the sale of automobile, fire, and various other kinds of insurance. If Wyatt had believed that he owned the Treasury bonds it is highly unlikely that a man of his financial and business experience would have failed to demand the return of the bonds, or at least the delivery of the interest coupons, during the five years which elapsed between the sale of his stock and his death.

For what it is worth, we have taken into consideration the certified copy of the 1954 Federal Income Tax Return of Bige and Ethel Wyatt which defendant offered, but which the court excluded. The defendants’ point in offering the return was that in computing Wyatt’s capital gain on the stock of Wyatt Taxicab Company sold to plaintiff, the cost basis was stated to be $10,-500. Defendants argue from this that if Wyatt’s cost was $10,500, the $11,500 of Treasury bonds could not have been transferred to the corporation when it was organized. What they overlook, however, is Parnas’ testimony, supported by Exhibit 1-A, that while the Treasury bonds and other assets totaling $14,388.16 were transferred to it, the corporation assumed liabilities of Wyatt amounting to $3,888.16, so that the net amount of assets transferred was $10,-500. Thus Wyatt’s cost basis of the stock was that figure.

The judgment is for the right party and should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


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    Jewell J. PETTY, Plaintiff-Appellant, v. Floyd Joseph HUBER, Defendant-Respondent.
    No. 31071.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Roth & Rathert, Alfred J. Rathert, St. Louis, for plaintiff-appellant.
    Emerson & Furtaw, Irvin D. Emerson, Hillsboro, for defendant-respondent.
   DOERNER, Commissioner.

By this action plaintiff sought to recover the sum of $792.98 for the damage to his automobile sustained in a collision with defendant’s car. Defendant denied liability, pleaded contributory negligence on the part of plaintiff, and counterclaimed for $1,000 for the damage to his car. Plaintiff, in turn, traversed defendant’s counterclaim and alleged that defendant had been con-tributorily negligent. Trial before a court and jury resulted in a verdict against plaintiff on his cause of action, and in favor of defendant in the sum of $400 on his counterclaim. Plaintiff brings this appeal. Defendant did not appear in this court, nor did. he favor us with a brief.

The nature of plaintiff’s assignments of error make unnecessary an extended statement of fact. The undisputed facts are that the collision occurred on August 6, 1960, about 1:00 P.M., on U. S. Highway 30, an east-west road, about 3.6 miles east of its intersection with Highway M. A restaurant, referred to in the testimony as Dot and Oscar’s, is situated at that point on the north side of Highway 30, with a driveway leading from the highway to the restaurant’s parking lot. The day in question was clear and sunny, and the asphalt-paved highway was dry. Plaintiff was driving his 1956 Lincoln westwardly. Defendant, operating his 1955 Ford east-wardly, undertook to make a left turn in order to enter upon the driveway, and thereby proceeded into the path of plaintiff’s car. The front part of defendant’s vehicle was off the north edge of the pavement when the right rear side was struck by the right front half of plaintiff’s car.

There was a conflict in the evidence as to the length of road which was visible to one looking eastwardly from the driveway. Plaintiff testified the distance was 400 feet, while defendant stated that a knoll limited the view to 50 or 100 feet. This dispute carried over into a variance in the testimony regarding the relative positions of the cars both at the time they first came into view of each other, and at the time defendant first started to turn to his left.

State Trooper Fletcher, who arrived on the scene after the collision, testified that there were skid marks 45 feet long on the highway, but said that they did not lead up to either car. He was not asked and did not give the location of the skid marks. From the location of the debris he concluded that the point of impact was a couple of feet on the north side of the pavement, and on the north shoulder. He stated that the speed limit in the vicinity of the collision was 65 miles an hour. When he interviewed the respective parties defendant told him: ‘I started to turn in, I didn’t quite make it’ ” and plaintiff said: “ T seen the man coming up the highway, he had his directional light on and I put my brake on, when he didn’t turn I went on and he turned in front of me.’ ”

Both of plaintiff’s assignment of errors relate to two instructions given on behalf of defendants. The first, Instruction D-5, reads as follows:

“The Court instructs the Jury that if you find and believe from the evidence that the collision mentioned and complained of, and the damages to the Defendant, if any, were caused by the negligence of the Plaintiff in any one of the following particulars:
“1. In negligently operating and driving his said automobile at an unnecessary, fast, dangerous, and negligent rate of speed.
“2. In negligently failing when operating and driving his said automobile at time and place to exercise the highest degree of care.
“3. In negligently failing to keep a look out for persons and vehicles at place of collision.
“4. In negligently failing to have his said automobile under such control that it could readily and reasonably be stopped upon the appearance of danger.
“Then you will find the issues in favor of the Defendant in his counterclaim.”

As plaintiff points out, mere abstract statements of legal propositions do not make proper verdict-directing instructions, and one which authorizes the jury to return a verdict for a party must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based. Myers v. Buchanan, Mo., 333 S.W.2d 18; Gaffner v. Alexander, Mo., 331 S.W.2d 622; Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872. Not a single essential fact to support either of the four submissions of negligence is hypothesized in Instruction D-5. It would be difficult to conceive of an instruction which would give a jury a greater roving commission than the one under consideration. It is comprised of mere abstract statements of legal propositions, and under the authorities cited was obviously erroneous.

Plaintiff also contends that Instruction D-5 is erroneous in that it directed a verdict for defendant on defendant’s counterclaim without negativing defendant’s contributory negligence, citing Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14. The weakness in this contention, however, is that while plaintiff pleaded contributory negligence as an affirmative defense to defendant’s counterclaim, so far as the record before us shows he did not submit that issue to the jury by an appropriate instruction, and therefore abandoned it. Shepard v. Harris, Mo., 329 S.W.2d 1; Brooks v. Mock, Mo., 330 S.W.2d 759.

Plaintiff’s second and final assignment is that Instruction D-8, given on behalf of defendant, was likewise erroneous and prejudicial as an abstract statement of law in which the jury was given a roving commission to determine what conduct of the plaintiff constituted negligence. The criticized instruction reads:

“The Court instructs the Jury that if you find and believe from the evidence that the conduct of the Plaintiff, if any, was negligence, and that such negligence, if any, contributing or combined, with any negligence on the part of the Defendant, to cause the collision in question, if any, then even though you may find the Defendant was negligent, nevertheless Plaintiff cannot recover, then your verdict must be for the Defendant’s upon the cause of action stated in Plaintiff’s petition.”

Plaintiff’s complaint as to this instruction is justified and must be sustained. Paisley v. Kansas City Public Service Co., 351 Mo. 468, 173 S.W.2d 33; Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811.

The judgment should be reversed and the cause remanded for a new trial. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is reversed and the cause remanded for a new trial.

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


text:
    STATE of Missouri, ex rel. STATE HIGHWAY COMMISSION of Missouri (Plaintiff) Appellant, v. Clifford Charles PAUL et al., on Exceptions of Roy J. Fullington, Lena Fullington, and Shell Oil Company, Inc. (Defendants) Respondents.
    No. 31074.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Robert L. Hyder, Ralph H. Duggins, Wilkie Cunnyngham, Jefferson City, for appellant.
    C. Kenneth Thies, Kerth, Thies & Schrei-foer, Clayton, for respondents.
   WOLFE, Judge.

This is an action in which the plaintiff sought to condemn the land of the defendants for highway purposes. After the order of condemnation, Commissioners were appointed and awarded $69,000 to the defendants. The Highway Commission paid that sum into court and filed its exceptions to the award. The trial upon the exceptions resulted in a verdict and judgment for $30,-000 in favor of the defendant land owners. The State Highway Commission appealed from the judgment upon the sole ground that the court erred in not awarding interest on $39,000, the amount by which the sum paid into court exceeded the jury verdict.

The only facts before us in the meager transcript of record filed on this appeal are substantially as follows:

The Commissioners appointed by the court awarded the defendants $69,000 for the property sought by the plaintiff in condemnation. The plaintiff paid that sum into court and excepted to the award. The defendants, apparently of the opinion that the sum awarded by the Commissioners was excessive, drew down only $30,000 of the amount awarded and paid into court by the plaintiff.

The jury trial resulted in a verdict and judgment for the defendants on June 20, 1961 in the exact sum that they had drawn down, $30,000. On July 12, upon suggestion of the plaintiff Highway Commission, the court changed the judgment by adding an award of interest to the plaintiff and against the defendants in the amount of six percent on $39,000, being the excess of the Commissioners’ award over the amount of the verdict.

On July 18 the defendants filed a motion to vacate the judgment so entered, and among other groundsffor vacating the judgment they alleged that Section 523.045, V.A. M.S., under which the court purported to award interest to the plaintiff, was unconstitutional. The court sustained this motion on August 1, 1961 on several grounds, including the ground that the section of the statute mentioned was unconstitutional. . It then entered a new judgment omitting any award of interest to the Highway Commission and from the judgment entered the State Highway Commission prosecutes this appeal.

Section 523.045, V.A.M.S. under question here relates to condemnation proceedings. It makes the following provision:

* * * if the amount of the award shall be superseded by a subsequent verdict or amount smaller than the award paid, then judgment shall be entered against said persons named to repay to condemnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.”

It is this portion that the trial court held unconstitutional.

A motion to transfer the cause to the Supreme Court was filed by the respondent on the ground that this court lacks jurisdiction. Article S, § 3, Missouri Constitution, 1945, V.A.M.S., provides:

“The supreme court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state.”

In the case under consideration the constitutionality of the statute was passed upon by the trial court, which held it unconstitutional. The respondent on this appeal is still contending, as he did below, that the statute is unconstitutional, and that the court was correct in so holding. The matter, therefore, is beyond the jurisdiction of this court and within the jurisdiction of the Supreme Court of Missouri. Callahan v. Connecticut Gen. Life Ins. Co., Mo.App., 201 S.W.2d 406; Kansas City v. Hammer, Mo.Sup., 347 S.W.2d 865; Marshall v. Kansas City, Mo.Sup., 355 S.W.2d 877; State v. Errington, Mo.Sup., 355 S.W.2d 952; State ex rel. Jenkins v. Bradley, Mo.Sup., 358 S.W.2d 38.

The motion to transfer this cause to the Supreme Court is sustained, and the cause is accordingly certified and transferred to the Supreme Court of Missouri.

ANDERSON, P. J., and GEORGE P. ADAMS, Special Judge, concur.


author: CALVERT, Chief Justice.

text:
    The STATE of Texas, Relator, v. G. C. OLSEN et al., Respondents.
    No. A-8902.
    Supreme Court of Texas.
    June 27, 1962.
    Rehearing Denied Oct. 3, 1962.
    D. D. Sullivan, Dist. Atty., Andrews, John H. Banks, County Atty., Winkler County, Kermit, for relator.
    Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for respondents.
   CALVERT, Chief Justice.

The State of Texas, acting by and through its District Attorney for the 109th Judicial District, seeks by this original proceeding to compel Honorable Russell D. Austin, District Judge, to vacate and set aside a judgment rendered and entered by his predecessor in Cause No. 1071, The State of Texas vs. John Mack Herring, then pending on the criminal docket of said court for Winkler County and commanding Judge Austin to proceed to trial in the case.

John Mack Herring was indicted for murder. After return of the indictment and while the case was pending, Herring’s father made an affidavit that in his opinion Herring was “temporarily in a state of insanity” and was “temporarily unable to distinguish between right and wrong” as to his act at the time he committed it. Based on the affidavit, Herring’s counsel filed a motion asking the court to “order a preliminary jury trial of the issue whether defendant was temporarily in a state of insanity at the time of the offense charged hereinA preliminary trial by jury was ordered as requested. When the evidence was concluded, Judge G. C. Olsen, the trial judge, charged the jury generally on the law of insanity and submitted for their consideration one question, as follows:

“QUESTION: Do you find from a preponderance of the evidence that at the time of the act charged by the indictment in this case, the defendant, John Mack Herring, was insane?”

The jury answered the question “yes”.

The State filed a motion for judgment notwithstanding the verdict. In the motion the State challenged the jurisdiction of the court to try the issue of insanity in the preliminary trial. The motion was overruled and judgment was rendered and entered adjudging John Mack Herring to have been insane at the time of commission of the offense charged in the indictment. Under the provisions of Article 932b, Vernon’s Code of Criminal Procedure, the judgment, if valid, operates as an acquittal of the offense charged. The judgment is not ap-pealable. Pena v. State, 167 Tex.Cr.R. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581.

This proceeding was filed originally against Honorable G. C. Olsen. After it had been submitted on oral argument, Judge Olsen died. The proceeding against him thereupon became moot. Decision was held in abeyance until Judge Austin, successor to Judge Olsen, had been afforded an opportunity to vacate the judgment, with permission to Relator, in event of refusal, to amend and proceed against Judge Austin. See Tex., 360 S.W.2d 402. Judge Austin has now refused to vacate the judgment and Relator’s petition has been amended to seek a writ of mandamus against him.

The position of the State before this court is that the trial court was without jurisdiction to try only the issue it did try and to render the judgment it did render in a preliminary trial. If the trial court was without jurisdiction for any reason, the judgment rendered by it is void and the writ of mandamus should issue as prayed. 33 Tex.Jur.2d 694, Judgments, § 164; 25 Tex.Jur. 685, Judgments, § 252; Article 1734, Vernon’s Texas Civil Statutes; State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279. We have concluded that jurisdiction of the trial court to conduct the preliminary trial was not legally invoked.

The preliminary trial was conducted under purported authority of Article 932b, Vernon’s Code of Criminal Procedure. The relevant part of that Article reads as follows :

“Section 1. In any case where the question of the insanity of a defendant is raised and that issue is tried alone before the main charge or is tried in connection with the main charge, the jury shall state in their verdict whether the defendant was sane or insane at the time the offense is alleged to have been committed and whether the defendant is sane or insane at the time of the trial.
“(a) If the jury finds the defendant to have been insane at the time the offense is alleged to have been committed, the defendant shall stand acquitted of the alleged offense.
“(b) If the jury finds the defendant to be insane at the time of trial, the court shall enter an order committing the defendant to a State mental hospital and placing him in the custody of the sheriff for transportation to a State mental hospital to be confined therein until he becomes sane. If the defendant is acquitted of the alleged offense the court shall so state in the commitment order.”

Before a jury can comply literally with the statutory requirement in returning a verdict, a judge must submit two questions or issues, viz: whether the defendant was sane or insane at the time the alleged offense was committed and whether he is sane or insane at the time of trial. But we are not concerned here with whether this proceeding was tried properly; we are concerned with whether the court had jurisdiction to try it at all. A proper determination of that question requires an analysis of the quoted language of the Article and a review of relevant decisions in criminal cases.

The District Court of the 109th Judicial District undoubtedly had jurisdiction of the case of The State of Texas vs. John Mack Herring pending on its criminal docket. It also had potential jurisdiction under Article 932b to try, in a preliminary trial, the issue of the defendant’s insanity at the time of commission of the offense charged in the indictment. But jurisdiction thus conceded does not foreclose the question before us. Jurisdiction of a court must be legally invoked; and when not legally invoked, the power to act is as absent as if it did not exist. What we said in San Antonio & A. P. Ry. Co. v. Blair, 108 Tex. 434, 196 S.W. 502, 505-506, although speaking of jurisdiction of appellate courts, seems appropriate here:

“There is, of course, an obvious difference between jurisdiction, — the power of a court to hear and determine causes, and the doing of those things necessary to call that power into play. To confer jurisdiction upon a court is not to give it authority to determine the mode of resort to its jurisdiction, or the power of deciding how, when, and in what manner its jurisdiction may be obtained. Some means must be provided as the instrumentality of bringing the cause under the power of the court in order for the court to have and exert power over it. Such means are purely remedial in their nature. They pertain merely to the manner or mode by which jurisdiction is acquired, not to its exercise after it is acquired. * * * ”

On the subject generally, see 21 C.J.S. Courts § 80, p. 121; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084.

Even a casual reading of Section 1 of Article 932b should disclose that it does not purport to state how or in what manner jurisdiction of a court is invoked to try an issue of insanity in a pending' criminal case. It purports only to direct the form of the issues to be submitted and the nature of the verdict to be returned by the jury. It directs what the verdict of the jury shall state in a case where “the question” of insanity is raised “and that issue is tried.” We must look elsewhere to see how and in what manner jurisdiction of a court to try issues of insanity in a criminal case is invoked.

The two issues of insanity which a court has jurisdiction to try in a criminal case, before conviction, are based upon and arise out of Article 34, Vernon’s Penal Code. That article provides: “No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition. * * * ” The first sentence makes insanity a defense to a criminal charge. The second sentence makes insanity a bar to prosecution. See Insanity as a Bar to Criminal Prosecution by K. K. Woodley, Judge of the Court of Criminal Appeals, 3 South Texas Law Journal 204. The statutory law of this State contained similar provisions in 1874 when this court decided Guagando v. State, 41 Tex. 626. Article 41 of the Criminal Code (Pas. Dig. p. 399, Art. 1643, 4th ed., 1873). In that case an affidavit of insanity was presented to the trial court in support of a motion to postpone trial of the criminal charge until the question of insanity of the defendant could be determined. There was no provision in the Code of Criminal Procedure for such a trial, hut we held that the statute gave the defendant a right to a trial of the issue of present insanity before trial of the criminal charge for the purpose of determining whether he was mentally competent to make a rational defense to the criminal charge. Judicial invention of a procedural device for assertion of the right not to be tried while insane was essential to preservation of the right. The rule of Guagando became the accepted rule of procedure in cases involving the issue of insanity as a bar to prosecution. See Soderman v. State, 97 Tex.Cr.R. 23, 260 S.W. 607, 611; Chapman v. State, 136 Tex.Cr.R. 285, 124 S.W.2d 112; Ex parte Hodges, 166 Tex.Cr.R. 433, 314 S.W.2d 581. But it was not held, or even intimated, in Guagando that a defendant was entitled to a preliminary trial of the issue of insanity at the time of commission of the offense.

We have discovered no case decided before 1937 in which it was held that a defendant was entitled to a preliminary trial on that issue either separately and alone, as was accorded here, or in conjunction with the preliminary trial of the issue of present insanity. There were decisions which clearly indicated the contrary. Insanity at the time of commission of the act was recognized as a defense to the criminal charge, to be tried on the main trial under a plea of not guilty. Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020; McGee v. State, 155 Tex.Cr.R. 639, 238 S.W.2d 707. There was no provision in the Code of Criminal Procedure for a trial of the issue in a preliminary trial and no need for such a trial to protect the right given by the first sentence of Article 34. The distinction between the two issues of insanity and the rationale for according them different procedural treatment was recognized in Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, in which a judgment of conviction was reversed because both issues were tried with the main charge over objection of the defendant who contended that he was entitled to a separate preliminary trial on the issue of insanity as a bar to prosecution. We quote at length from the opinion (241 S.W. 1021):

“ * * * We do not believe the purpose evident from the language of the article quoted [Article 34] can be met by a trial of present insanity at the same time and before the same jury as a trial of the issue of guilty of the crime charged. To try the prisoner for present insanity and for the crime charged in one and the same proceeding would not seem to be in conformity with a statute which provides that he shall not be tried for the offense while he is insane. Not only is the proceeding of such dual trial not according to the statute, but it would be manifestly confusing to the jury and unfair to the accused. If he be now insane, the fair decision of that issue should not be clouded and prejudiced by the introduction of the facts involving a bloodcurdling murder — facts which alone might well so stir the minds of the jury as to make difficult the exercise of calm judgment upon the question of present insanity. The proposition is wholly different from that involved in a trial for crime, wherein the accused, under his plea of not guilty, is allowed to show as supporting such plea that, if he did the act charged, he did not have the mental capacity to recognize the wrong of same. In such trial as that last referred to, the two issues are blended and interwoven, the question of guilt of the crime being dependent upon that of mental capacity on the part of the accused at the very time of the act done, and it is clearly right to submit insanity as a defense to the crime in such case.”

In 1937 the Legislature enacted Article 932a, Vernon’s Code of Criminal Procedure. See Acts 1937, 45th Leg., p. 1172, ch. 466. As noted above, there was at that time no legal procedure, statutory or decisional, by which a trial court could try the issue of insanity at the time of the act in advance of a trial on the main charge, and no procedure by which a court could try the issue of present insanity, over the objection of the defendant, on the trial of the main charge. By enactment of Article 932a the Legislature supplied a procedure to remedy both deficiencies. Whether it was wise in so doing is not for us to speculate. In Section 1 provision was made for the submission of issues and form of verdicts in any case when the issue of insanity was tried “before the main charge”, and in Section 2 provision was made for the submission of issues and form of verdicts when the issue of insanity was tried on “the trial of the main charge.” Issues and verdicts on insanity at the time of commission of the alleged offense and at the time of trial were required in both instances. But in that statute, as in Article 932b which repealed and displaced Article 932a, the Legislature did not purport to state when or under what circumstances a preliminary trial was to be had, or how jurisdiction to order it was invoked. We must assume that both Article 932a and Article 932b were enacted by the Legislature with full knowledge that under court decisions jurisdiction of a trial court to grant a preliminary trial on the issue of insanity could be invoked by or on behalf of a defendant only by a motion or request therefor based upon allegations that because of present insanity the defendant was unable to prepare a rational defense to the main charge.

It would serve no useful purpose to write at length on the confusion which would result from a holding that a trial court’s jurisdiction to order and conduct a preliminary trial on the issue of insanity is legally invoked by or on behalf of a defendant by a request therefor based on an affidavit stating only that the defendant was insane at the time of commission of the offense charged. As Judge Woodley, now Presiding Judge of the Court of Criminal Appeals, points out in his article heretofore cited, even a trial of both issues of insanity in a preliminary trial can lead to a strange situation. He states:

“ * * * So it is now possible for one charged with a criminal offense to be acquitted, though he has never been tried for such offense, and in fact to be acquitted by a jury that has not heard the indictment read, the facts relating to the act charged, or any other evidence other than that relating to the question of the sanity or insanity of the accused.”

We hold that jurisdiction of a court to try issues of insanity before a trial of the main charge can be invoked by or on behalf of a defendant only by a motion or request for a trial of the issue of present insanity. It follows that jurisdiction of the 109th District Court to order and hold a preliminary trial of the issues of insanity in State of Texas vs. John Mack Herring was never legally invoked and that the judgment rendered by it is therefore void.

We assume the District Judge will vacate the judgment heretofore rendered and proceed to trial in accordance with this opinion. Otherwise, writ of mandamus will issue in conformity herewith.


author: PER CURIAM.

text:
    The STATE of Texas, Relator, v. G. C. OLSEN et al., Respondents.
    No. A-8902.
    Supreme Court of Texas.
    May 23, 1962.

      D. D. Sullivan, Dist. Atty., Andrews, John H. Banks, County Atty., Winkler County, Kermit, for relator.
    Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for respondents.
   PER CURIAM.

Permission to file this original mandamus proceeding in this court was granted on March 14, 1962. Oral Argument was heard and the case submitted for decision on April 25, 1962. The purpose of the proceeding is to require Honorable G. C. Olsen, Judge of the District Court in and for the 109th Judicial District to set aside and vacate a judgment rendered and entered by him in a preliminary proceeding in cause No. 1071, The State of Texas v. John Mack Herring, then pending on the Criminal Docket of said court for Winkler County, and to proceed to trial in said cause.

It has come to the attention of this court that Honorable G. C. Olsen has died since the case was submitted. No doubt a successor will be appointed and will qualify in due time. The proceeding against Judge Olsen is moot. A writ of mandamus will not lie against a successor judge in the absence of a refusal by him to grant the relief Relator seeks. If the successor judge refuses to grant the relief sought, Relator may then amend its application for writ of mandamus and the matter will be decided on the merits. There will be no need for reargument.

Relators will be granted fifteen days from the qualification of a successor to Judge Olsen in which to file an amended application for writ of mandamus. If the successor judge should refuse to grant relief and an amendment is not filed within the time stipulated, this cause will be dismissed. In the meantime, decision in the case will be held in abeyance. Saenz v. Sanders, 151 Tex. 10, 245 S.W.2d 483.