author: CRAY, Commissioner.

text:
    CITY OF ST. MATTHEWS, Kentucky, et al., Appellants, v. CITY OF BEECHWOOD VILLAGE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.

      J. W. Jones, Louisville, for appellant City of St. Matthews. Wilbur Fields, Louisville. Clay A. Copeland, Louisville, of counsel, for appellant Marshall Realty Co.
    Gordon B. Davidson, Lawrence L. Jones, III, Louisville, Wyatt, Grafton & Sloss, Louisville, of counsel, for appellee.
   CRAY, Commissioner.

In this declaratory judgment action the City of Beechwood Village sought an adjudication that a three acre tract of land had been annexed by it. Defendant City of St. Matthews asserted a similar claim. Marshall Realty Company, the owner of the land, intervened and sided with St. Matthews. The Chancellor, being of the opinion the annexation proceedings by Beechwood were invalid, nevertheless adjudged (1) Marshall was estopped to challenge those proceedings, and (2) since St. Matthews annexed only to the legal boundaries of Beechwood and the ostensible legal boundaries included the Marshall tract, such tract was not annexed by St. Matthews. Marshall and St. Matthews appeal.

In 19S4 Beechwood enacted an ordinance proposing annexation of all of the Marshall property (and an adjoining Butler tract). The description in the ordinance was so inaccurate that it did'not encompass the property proposed to be annexed. Marshall and the Butlers filed a remonstrance suit objecting to the annexation (as authorized by KRS 81.110). They did not raise any question about the deficient description in the ordinance.

During the course of the proceeding, in September 1955, the remonstrants, Marshall and the Butlers, entered into a stipulation with Beechwood whereby it was agreed a judgment could be entered authorizing annexation of the part of the Marshall property here involved (and the Butler tract). Pursuant to this stipulation a judgment was entered November 30, 1955, providing that a specific area (likewise inaccurately described) “may be annexed” by Beechwood.

Under the procedure prescribed by KRS 81.110(4), another ordinance is required to complete the annexation. Such an ordinance, purportedly following the agreed judgment, appears to have been enacted by Beechwood, but it was dated October 10, 1955, prior to the date the judgment was entered. (This ordinance will be discussed later.) Thereafter the parties treated the Marshall and Butler tracts as if properly annexed.

The Marshall property was unimproved land. No city services were actually extended to it, although it was under the general police protection of Beechwood. Marshall paid city taxes to Beechwood until 1960. In the meantime, a sewer project had been developed by Beechwood and bonds issued. Sewer services were not extended to the Marshall tract hut it was considered an area to which these services might someday be extended.

In 1960 St. - Matthews annexed a large area which extended to and along the “east line” of Beechwood, where the Marshall tract was located. Marshall thereupon ceased paying taxes to Beechwood and sought zoning relief from St. Matthews. Thus this three-cornered controversy developed.

The annexation of property by a city is a political act within the exclusive control of the legislature. Sanitation Dist. Ho. 1 of Jefferson County v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995. The statutory procedure prescribed must be followed in creating this political subdivision. Turner v. Kelly, 217 Ky. 773, 290 S.W. 711.

The description of the property in the proposing ordinance, in the agreed judgment, and in the annexing ordinance was so inaccurate as to be incompreliensible. If we overlook this deficiency, we find the agreed judgment and the annexing .ordinance (dated October 10, 1955) constituted an attempted piecemeal annexation of a smaller area than that originally proposed. This we condemned in Donovan v. City of Louisville, Ky., 299 S.W.2d 636 and Garner v. City of Lexington, Ky., 306 S.W.2d 305. Still further, because of the deplorable state •of Beechwood’s records, it appears the annexing ordinance (ostensibly passed October 10, 1955) was either enacted prior to the entry of the agreed judgment or was never enacted at all. Certainly the Marshall property was never validly annexed by Beechwood in conformity with the governing statutory and case law. The Chancellor took this view, and it is the only reasonable one that could be reached on this record.

We now turn to the question of es-toppel. It is asserted only against Marshall and is not and could not be asserted against St. Matthews. Without discussing the subject at length, we call attention to the serious difficulty of attempting to invoke es-toppel in this case. First, annexation by estoppel violates the legislative scheme by which this may and should be accomplished. Secondly, annexation is a matter of public' interest rather than private right. Thirdly, the necessary elements of estoppel are not established in this case. Marshall’s conduct consisted only of acting upon the same mistake of fact and law that Beechwood acted upon. Certainly Marshall did not benefit from this change of legal status to the detriment of Beechwood. Finally, the record does not show a great public inconvenience which as a matter of necessity would require the invocation of some equitable principle to give Beechwood relief. See O’Hara v. City of South Fort Mitchell, Ky., 290 S.W.2d 455, which is quite similar to the present case and in which we questioned the application of estoppel in annexation cases.

In spite of the almost insurmountable difficulties, if we accepted the Chancellor’s finding that Marshall is estopped, this does not solve the problem presented. The real controversy, and the one initiated by Beechwood, is between it and St. Matthews. It seems too clear for argument that even if the estoppel doctrine may be invoked against Marshall, it cannot be extended to create legal rights against an unassociated third party or against the public. (See 31 C.J.S. Estoppel § 148, page 436.)

The Chancellor apparently took the view that since Marshall was estopped to question the annexation, a new eastern boundary line of Beechwood had thereby become established, and since St. Matthews only annexed territory to and along the eastern boundary of Beechwood, it did not encompass the Marshall property. The fallacy of this reasoning is evident. It converts the defensive shield of estoppel against Marshall into an affirmative weapon by which rights are created against St. Matthews. This cannot be. Against St. Matthews, Beechwood must stand on the strength of its claim, not the weakness of Marshall’s position.

In short, Beechwood did not annex the Marshall property through the medium of estoppel. It therefore did not extend its boundary line to include this property. Beechwood’s eastern boundary line is where it was prior to the abortive annexation proceedings. St. Matthews annexed territory to this line and it took in the Marshall property.

We are aware our decision may create difficult problems for Beechwod and/or St. Matthews. We are sure the Chancellor had these in mind when he undertook to maintain the status quo. However, it is not the function of courts to create political subdivisions by judicial fiat. As everyone else, .cities must conduct their affairs as the law requires. Having failed to do so, Beechwood is not in a position to support its claim against St. Matthews.

The judgment is reversed, with directions to enter a judgment declaring the property in controversy a part of the City of St. Matthews.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Orville APPLEGATE, Appellant, v. Adrian HORD, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.

      Fox, Wood & Wood, Woodson T. Wood, Maysville, for appellant.
    John H. Clarke, Jr., W. O. Miller, Robert Zweigart, Maysville, for appellee.
   CULLEN, Commissioner.

The Workmen’s Compensation Board denied Adrian Hord’s claim for compensation, having found that the accident in which he was injured did not occur in the course of his employment. Upon proceedings for review the circuit court ruled that as a matter of law Hord was in the course of his employment when injured, and entered judgment remanding the case to the board. The employer, Orville Applegate, has appealed from that judgment.

Applegate had a contract with a limestone quarry operator to haul crushed limestone by truck to farmer customers of the quarry. Hord was employed by Applegate as a truck driver, at a wage of $10 per day. Hord’s residence was on a main highway a few miles from the quarry and Applegate’s residence was on a side road several miles off the main highway. The accident happened on a Monday morning. The previous Saturday Hord had taken his employer’s truck home with him and he had kept it over the weekend. The accident happened when he was driving the truck from his home to the quarry early on Monday morning.

Hord had worked for Applegate some five or six weeks before the accident. Hord’s testimony was that he customarily took the truck home each night after work, although there was no agreement that Applegate was to furnish him transportation to and from work. He also said that on occasion he was required to have the truck serviced after working hours. His contention is that the truck was “headquartered” at his home for the convenience of the employer, to avoid the extra time and distance that would have been involved had the truck been taken to Applegate’s home each night, and for convenience in having the truck serviced.

Applegate testified that during the period of employment Hord had taken the truck home at night four or five times; that if it happened that the truck was closest to Hord’s home at the end of the day’s work Hord would take it home, but if closer to the quarry or a delivery destination the truck would be left there. He also said that on the Saturday preceding the day of the accident he permitted Hord at the latter’s request to take the truck home for his personal use to scatter fertilizer on his own land. As to servicing the truck at night he testified that the truck sometimes was serviced after working hours if it was near the service station at the time of quitting work.

The compensation board found as a fact that on the weekend in question Hord had used the truck for his personal use and benefit, and that there was no benefit to Ap-plegate from Hord’s taking the truck home and having it there over a weekend. We think there was evidence of substance to support those findings. Therefore the findings were conclusive and the circuit court erred in making the contrary finding that the truck was stabled at Hord’s home for Applegate's convenience or for mutual convenience.

The factor of the employer’s convenience having been eliminated, there is nothing left in the case to take it out of the ordinary “going and coming” rule under which the employe is considered not to be in the course of his employment when traveling between his home and his place of employment. See W. T. Congleton Co. v. Bradley, 259 Ky. 127, 81 S.W.2d 912; Harlan Collieries Co. v. Shell, Ky., 239 S.W.2d 923; Handy v. Kentucky State Highway Department, Ky., 335 S.W.2d 560; Note, 47 Kentucky Law Journal 420.

Appellant’s counsel filed a reply brief in which were set forth several alleged facts wholly outside the record, pertaining to Hord’s conduct and financial condition after the accident. This purportedly was in answer to a mild plea for sympathy contained in the appellee’s brief. The obvious purpose, however, was to attempt to prejudice this Court. The brief has been stricken on the Court’s own motion and counsel hereby it reprimanded for filing it.

The judgment is reversed with directions to enter judgment affirming the order of the Workmen’s Compensation Board.


author: STEWART, Judge.

text:
    Robert W. COOK, Appellant, v. Velma M. COOK, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Harris W. Coleman, Garland R. Hubbard, Louisville, for appellant.
    Ruth C. Dougherty, Louisville, Robert C. Kime, Palm Beach, Fla., for appellee.
   STEWART, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court wherein the parties, Robert Cook and Velma Cook, husband and wife, were granted an absolute divorce from each other. The chancellor also made a division of certain personal) property between the parties and assessed a certain item of cost against Robert Cook. This appeal challenges the last-mentioned portion of the judgment.

The Cooks were married in 1929. Their only child, a son, was born in 1941. Neither party had any estate at the time of the marriage. They lived in Columbus and Dayton, Ohio, during the 1930’s and acquired a duplex house in the former city. Mr. Cook worked as a salesman, generally on a commission basis. Mrs. Cook worked part-time as a saleslady in a department store. However, during one six-month’ period, when Mr. Cook was ill, she was the family’s sole support.

In 1939 they moved to St. Louis, Missouri, where they acquired some real estate. In 1941 Mr. Cook was called to army duty (he eventually rose to, and was discharged with, the rank of lieutenant colonel) and in 1944 was sent overseas. At that time, and in accordance with plans previously made by them, they bought a motel in Riviera Beach, Florida, for $35,000. The title to the motel was placed in their joint names with the right of survivorship in case the one should predecease the other. Mrs. Cook, who had been given a general power of attorney to consummate the transfer in behalf of Mr. Cook, testified she cashed “our bonds” to make the down payment on the motel of $12,456.13. The property in Ohio and in St. Louis, which had been held jointly by them, was sold and the money applied on the motel purchase price. Mrs. Cook managed the motel until her husband returned in April, 1946. They both continued to manage it thereafter.

By 1954, due to some substantial improvements and to inflation for the most part, the motel was worth $155,000 and was sold for that price to Max O. and Martha Hammer. The Hammers paid $20,000 cash and executed a purchase-money mortgage to the Cooks for the balance. The ownership of this mortgage, together with $17,-846.39 paid thereon and now in the hands of the receiver of the Jefferson Circuit Court, constitute two of the items in controversy here. Another item involved in this litigation is $16,610.26 invested in securities in the sole name of Mr. Cook and purchased by him with proceeds derived from the sale of the motel.

From 1954 until 1958 these people traveled around the country in a trailer. In March, 1958, while they were living in Kentucky, appellant beat up his wife, so she alleged, and she left him, returning to Florida which she considers her home. In August, 1958, she filed suit for divorce in Florida and he filed suit for divorce in Kentucky.

The chancellor found “each of the parties equally at fault for having brought an end” to the marriage; and that Mrs. Cook, being guilty of moral delinquency (as was also Mr. Cook), was not entitled to alimony as such. He was of the further opinion “that the parties would not have had the nest egg to invest in the motel but for Mrs. Cook’s fairly steady though more modest financial contributions,” and decreed that “the parties’ remaining assets (severely diminished since the sale of the motel in 1954) should be divided roughly 50/50.” He also ruled that Mrs. Cook receive one-half of the securities Mr. Cook had purchased from a portion of the previously paid mortgage money and had placed in his name as the sole owner.

Mr. Cook first argues that the motel was purchased by funds earned and owned by him exclusively; thus the purchase-money mortgage, ordered payable to the husband and wife jointly, actually belongs to him alone and should be restored to him.

KIRS 403.060(2) requires restoration, after a divorce, of property obtained from or through the other spouse before or during the marriage and in consideration of the marriage. See also KRS 403.065 which deals with the same subject matter. These statutory provisions have been invoked in many cases involving the termination of the marriage relationship. In Kivett v. Kivett, Ky., 312 S.W.2d 884, 888, this Court said:

“It was the intent of the enactors of the statutes that the property of one party to a marriage obtained by the other party without valuable consideration or without any consideration other than by reason of the marriage should be given back to the original party upon the dissolution of the marriage. It was intended that each party should be returned as nearly as possible to the status or condition, in which the party would have been except for the marriage.”

Thus, unless the wife here furnished a valuable consideration, the mortgage and the money and the securities mentioned must be restored in toto to the husband. Moreover, in the Kivett case, cited above, it was held the spouse claiming restoration must pay to the other spouse the money or other consideration actually paid. This amount, however, must be the actual amount contributed, without regard to any increase or decrease in the value of the property purchased.

There have been some cases where the courts have apportioned property to a spouse, even though a valuable consideration, as defined above, was not shown. In Powers v. Powers, 307 Ky. 475, 211 S.W. 2d 687, this Court said:

“The uncontradicted evidence shows appellee to have been at fault in bringing about the marital difficulties; therefore, the Chancellor correctly granted appellant a divorce. The parties were married in the year 1907, and lived together approximately thirty-eight years. The evidence shows that appellee bore twelve children, nine of whom are living at this time. The farm in question was inherited by appellant from his parents; but appellee worked in the field, yearly made a garden, kept house, cared for the children, and performed all the household duties in making a home for the family. The farm consists of approximately eighty acres of hillside land, and variously is estimated to be worth between $800 and $1500. Appellee inherited some money from her parents, which she had preserved in a bank account. Apparently the parties have had trouble since the inception of their marriage, but it is manifest from the evidence that, without the contribution of labor which appellee has made to this union, appellant would not have been able to preserve the farm in question or the livestock or implements which the Chancellor has divided as equally as possible. Under these circumstances, we are of the opinion that appellee has contributed to what little estate the parties now are in possession of to such an extent that she should be adjudged to be the owner of one-half thereof.”

In Lockard v. Lockard, 305 Ky. 656, 205 S.W.2d 317, 319, a somewhat similar holding was reached. It is there stated:

“It appears the Chancellor in awarding the wife lump sum alimony in the sum of $7000 attempted to divide equally the real and personal property owned by the husband. He was certainly justified in finding that this property had a valuation of at least $14,000. Since both husband and wife had started their marriage with practically no estate, and together by their joint industry had accumulated this property, it is fair and equitable that the wife should be entitled to an equal share in it."

In the instant case, the chancellor found that it was “impossible to reconstruct the respective financial contributions of the parties”; that the Cooks had nothing when they married; that the wife worked throughout the marriage; that she therefore materially assisted in creating “a nest egg to invest in the motel”; and that the improvements the parties added to the motel were placed thereon solely by Mrs. Cooks’s labors from 1944 to 1946 (her husband being then in the army), and jointly by the labors of both of them from 1946 to 1954. In short, it was the chancellor’s view that Mrs. Cook’s contributions toward the acquisition of the property, in litigation equaled that of Mr. Cook.

We cannot say the chancellor’s findings of fact are clearly erroneous or, in truth, erroneous to any extent. See CR 52.01. Nor can we say his decision in respect to the division of the property between the parties is not supported by substantial evidence.

Mr. Cook next claims the commissioner’s fee of $1000 is unreasonable and unjust.

This action was instituted in 1958 and the commissioner filed his report in October, 1961. Eight hearings were held and 671 pages of depositions were taken. Two of the hearings consumed an entire-day. The commissioner filed a lengthy and detailed report. We conclude there is an adequate basis in law and fact for the fee charged.

Wherefore, the judgment is affirmed.


author: CROSS, Judge.

text:
    Sharon Cole STARK, Appellant, v. Feleciea COLE, James B. Marks and Western Surety Company, Respondents.
    No. 23868.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Crouch & Fitzgerald, Warrensburg, for appellant.
    Houtchens & Houtchens, Clinton, for respondent Western Surety Co.
    Poague, Brock & Wall, Clinton, for respondent James B. Marks.
   CROSS, Judge.

Plaintiff-appellant Sharon Cole Stark is an heir at law of her deceased father and a beneficiary of his estate. At the time of his death in 1955 she was a minor thirteen years old. She attained her majority on November 6, 1961 and thereafter on June 16, 1962 brought this suit for an accounting against defendants Feleciea Cole, James B. Marks and Western Surety Company, who are, respectively, the originally appointed administratrix of the estate, the succeeding administrator de bonis non, and the surety on the bond of the administratrix. Plaintiff appeals from a judgment of the trial court dismissing her first amended petition.

The allegations of the petition are, in substance, here set out: (1) Plaintiff's father departed his life on or about January 14, 1954, and was survived by defendant Feleciea Cole, his wife, and by two sons and a daughter who is plaintiff herein. (2) At the time of her father’s death plaintiff was an infant of 13 years. She became of legal age on November 6, 1961. (3) On October 19, 1954, the Probate Court appointed defendant Feleciea Cole as administratrix of the estate. She duly qualified and filed her fiduciary bond in the sum of $3000.00, with defendant Western Surety Company as surety, binding her to the faithful performance of her duties. (4) Defendant adminis-tratrix did not faithfully discharge her trust and breached the conditions of her bond in that some time prior to December 5, 1955, she wrongfully appropriated $3000.00 of the estate’s funds to her own use and has never accounted to plaintiff for her share or interest therein. (5) Thereafter, the probate court revoked the appointment of Feleciea Cole as administratrix and appointed defendant Marks as administrator de bonis non, in which capacity he acted until final settlement was made on December 5, 1955. (6) Thereafter defendant Feleciea Cole formally waived all of her interest in the estate. (7) During the period from June 3, 1955, to December 5, 1955, the defendants entered into an illegal combination and conspired together to deprive plaintiff of her interest in the assets of the estate, in that (a) defendant Western Surety Company, responding to Feleciea Cole’s default as administratrix, paid into the estate the sum of $2988.48; (b) thereafter the defendant Marks as administrator de bonis non paid claims and costs of the estate and retained a balance in his possession available for distribution under the laws of descent and distribution; (c) defendant Marks did not make such distribution to the persons lawfully entitled thereto, including plaintiff, but (d) “did on or about the 3rd day of December 1955, conspire, confederate and fraudulently cooperate with the Defendant Western Surety Company and the Defendant Feleciea Cole to illegally and unlawfully pay said balance in said estate to the Defendant Western Surety Company, such defendant having no interest in said estate and being not entitled to the said balance therein, all without proper authorization or order of the Probate Court of Henry County, Missouri, and did thereafter conclude and close said estate”. (8) All of the aforesaid acts and agreements of the defendants and the payment of the $2300.00 balance of estate assets to defendant Western Surety Company and the closing of the estate by defendant Marks were made and done without plaintiff’s knowledge or consent and at a time when she was a minor without any legally appointed guardian to protect her interest. (9) The defendant Western Surety Company has in its possession, illegally and without authority of any court, estate funds totaling $766.66 that belong to and are the property of . plaintiff. (10) Despite plaintiff’s due demand, defendant(s) have refused to account for or pay to plaintiff the sum of $766.66, with interest thereon, which represents her one-third share in the remaining estate assets.

The petition prays a decree of court requiring defendants to account to plaintiff for the sum of $766.66, with interest, for a judgment in plaintiff’s favor against defendants for the sum of $766.66, with interest, and for other and further relief generally.

Defendant Feleciea Cole made no appearance, filed no pleading and stands in default. Defendant Marks filed a motion to dismiss plaintiff’s petition on the general ground that it fails to state a cause of action. Defendant Western Surety Company likewise filed a motion to dismiss the petition on the grounds (1) that the pleading fails to state sufficient facts upon which the court might grant relief to plaintiff; (2) that plaintiff is barred by the limitation provided in Section 473.213 V.A.M.S.; (3) that since the intended suit is an action on an administrator’s bond, it is improperly brought in plaintiff’s name and must, by requirement of law, be brought in the name of the state, and (4) that the decree of final distribution in the estate, from which no appeal was taken, is a final judgment barring the suit. The trial court sustained both motions without specifying any reason for its action.

Absent from this appeal is any question of whether plaintiff’s action is barred by the limitation of Section 473.213 V.A.M.S. Although that contention was made in one of the motions to dismiss, it is not before us here. Defendants have abandoned the point inasmuch as their brief is silent on the subject. For that matter, it is our opinion that the statute of limitation applicable in this case would be the five year statute Section 516.120(5) V.A.M.S., since this suit appears to be an attempted “action for relief on the ground of fraud” * * * not a suit on the surety bond. Plaintiff filed her action within less than a year after she became twenty-one years of age. Therefore, under the saving provisions of Section 516.170 V.A.M.S. her suit was timely and unaffected by the bar of any limitation.

The remaining issues raised by the briefs of the parties and requiring decision are (1) whether the petition was properly filed in the name of plaintiff Sharon Cole Stark or should have been brought in the name of the State of Missouri as defendants contend, (2) whether the petition is sufficient to state a cause of action against defendants for an accounting, and, (3) whether or not the attempted action is a collateral and unauthorized attack on a final and conclusive judgment. These questions will be considered in that order.

Defendants base their contention that the suit should have been brought in the name of the state on argument that it is an action on the administratrix’s bond, governed by Section 473.217 V.A.M.S., which provides that “The bond of an executor or administrator may be sued on at the instance of any party injured, in the name of the state, to the use of such party * We do not share defendants’ view regarding the nature of the suit. We consider that plaintiff’s case is bottomed on allegations of fraud and conspiracy on the part of defendants, designed to deprive plaintiff of her distributive share of the estate, all occurring after the surety had performed its obligation under the bond by paying into the estate the sum of $2988.48. The cause of action pleaded is one personal to plaintiff, and unaffected by the cited statute. The suit was properly brought in her own name.

Nor is there any merit in defendants’ insistence that the petition failed to. state a cause of action against them for an. accounting. Defendants are not supported in this contention by their own cited authority, which discloses that a sufficient ground for invoking equitable jurisdiction for an accounting is “the existence of a fiduciary relationship with a duty resting upon the defendant to render an account”. 1 Am.Jur.2d, Accounting, Sec. 51, p. 423 (quoted in defendants’ brief). The same authority further states in Sec. 52, pp. 424-425, “Courts of equity have original jurisdiction to state and settle accounts, or to compel an accounting, where a fiduciary relationship exists between the parties and a duty rests upon the defendant to render an account”. Furthermore, equity has. jurisdiction to compel an accounting where fraud is charged, and may exercise jurisdiction in actions arising out of a tort and decree an accounting where there is a proven allegation of fraud,- especially where in addition there is an additional ground for jurisdiction such as the existence of a fiduciary relationship. See 1 Am.Jur.2d, Accounts and Accounting, Sec. 55, p. 428; also see Expansion Realty Co. v. Geren, Mo.App., 170 S.W. 928. All of the foregoing is particularly supportive of the propriety of an equitable accounting in this-case — considering that the highest order of fiduciary relationship flows from the trust owed by an administrator to an infant beneficiary of the estate in his hands.

On the remaining appeal issue we rule that defendants are correct in their contention that under the facts alleged in plaintiff’s petition the judgment of the probate court finally settling the estate and discharging the administrator, which amounts to an adjudication that the sum of $2300.00 paid back to the surety was a proper item of credit, is conclusive against any and all proceedings other than a direct attack to set aside and vacate the same on the ground of fraud or other recognized grounds for equitable relief. Included among numerous Missouri decisions so holding are Gorg v. Rutherford, Mo.App., 31 S.W.2d 585 and Mueller v. Grunker, Mo.App., 123 S.W. 469, (both cited by defendants). “[A] final settlement and order of distribution in the probate court has the force of a judgment as to all matters necessarily involved in the settlement” * * * “The judgments of probate courts are as impregnable to collateral attack as the judgments of other courts of record”. Einstein v. Strother, Mo.App., 182 S.W. 122. Plaintiff’s petition is clearly an attempted collateral attack on a final, conclusive and binding judgment which stands as a bar to the prosecution of the action now pleaded against defendants. Hence, it pleads no maintainable cause of action.

As above indicated, probate court judgments are subject to direct attack in a court of equity for fraud, collusion, accident or mistake to the same extent as are all judgments of courts of record, and may be set aside if sufficient grounds for so doing are pleaded and proven. The fraud for which a final settlement will be set aside is of the same character as that required to set aside any other final judgment of a court of competent jurisdiction, to-wit, fraud arising on matters extrinsic and collateral to the subject matter of controversy or practiced in the very procurement or concoction of the judgment, and not on the very issues presented by the judicial inquiry. Fraud inhering in the cause of action itself, false testimony, or fraud within the issues on the merits of the case are not considered as sufficient grounds, since all such matters are foreclosed by the judgment.

Specific limitations, applicable in all cases and under all circumstances, upon granting relief against judgments have never been laid down. As stated by Judge Storey in his Equity Jurisprudence, quoted in Clyce v. Anderson, 49 Mo. 37, “Fraud is infinite, and were a court of equity once to lay down rules how far they would go, and no farther, in extending their relief against it, or to define strictly the species of evidence of it, the jurisdiction would be cramped and perpetually eluded by new schemes which the fertility of man’s invention would contrive”. Fraud, further states the same authority, “properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly imposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.

Instances of sufficient cause to set aside judgments are found in the following quoted excerpt from the opinion in United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93, a leading case, which was quoted with approval in Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565, and thereby incorporated into the body of Missouri law: "But there is an admitted exception to this general rule (that a defeated party will not be heard a second time on the merits of his defeat) in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, or by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing”.

Directly in point here is the following statement by Judge Bliss in Clyce v. Anderson, supra, quoted as follows: “Courts will scrutinize more closely an ex parte judgment — and especially when the person obtaining it holds a fiduciary relation to those affected by it — than one obtained by litigation between equals. Administrators, etc., are trustees; they alone are supposed to be thoroughly advised in regard to the trust funds; their exhibits must necessarily be greatly relied upon by those interested in the fund; their settlements are often practically ex parte, with no one to scrutinize their accounts but the Probate Courts, which are easily deceived, and which, unfortunately, are often negligent, and trust too much to the good faith and intelligence of the administrator. With such opportunities for overcharging, suppression and concealment, and with the fiduciary and trust relations held by them, administrators, executors and guardians are under peculiar obligations to see to the accuracy of their accounts, and that judgment of approval is not based upon any wrong showing of theirs. While those interested in the estate to be settled may appear and contest the settlement account, still the trustee none the less represents the estate as well as himself, and cannot throw off his trust relation by giving notice that he will close it up. Under these circumstances any omission or concealment that wrongs the estate must be considered as fraudulent, without reference to the motive that dictates it. We are often deceived by the same word in different associations and relations. A judgment is usually the result of a contest between parties when neither are under legal obligations to make greater disclosures than their interest requires. In such a case it may be no fraud to neglect to communicate facts that would materially affect the result. But in a settlement like the one under consideration nothing can be innocently concealed, and in applying the term ‘judgment’ to the approval of such a settlement we should not overlook its different character and the different relations of those interested in it”.

We are reluctant to let this judgment of dismissal stand. Assuming the truth of plaintiff’s allegations, which is proper for the purpose of this appeal, it must be said that she has endured a legal grievance at the hands of persons legally charged with the duty of her protection as an infant. She addresses a timely filed suit to a court of equity and pleads facts showing her entitlement to relief except for the bar of what amounts to an ex parte judgment.

We conclude that the judgment which now stands in plaintiff’s way of recovery should bear further scrutiny by a court of equity — if there are additional facts to be pleaded tending to impugn it for fraud or kindred cause. If plaintiff has rights growing out of the transaction set forth in her petition, but has misconceived the remedy necessary for their enforcement, and, if she is able to plead facts sufficient to show her entitlement to a decree in equity avoiding the final settlement insofar as it affects the immediate parties, we believe that the cause of justice would best be served by affording her further opportunity to do so. Under such circumstances this court has discretion in the matter and may remand the cause to permit the petition

to be so amended. See Jensen v. Wilson Township, Gentry County, 346 Mo. 1199, 145 S.W.2d 372; also cases digested in Note 1034 to Section 512.160 V.A.M.S. Such amendment may be accomplished by adding another count to the petition. Then, as an arm of equity, with the duty to adjudicate all rights between the parties, the circuit court would have full power to nullify the final settlement insofar as it affects plaintiff’s rights in the premises and to require an accounting by defendants, if the pleaded facts and evidence so require. Since the probate court retains no jurisdiction and could acquire none, the final settlement would not be disturbed otherwise.

Accordingly, and under authority conferred by Civil Rule 83.13, V.A.M.R., the judgment is reversed and the cause is remanded to the circuit court with directions that plaintiff be allowed to amend her petition, if she so elects, and that further proceedings be conducted in the cause not inconsistent with this opinion, or, if plaintiff does not so desire to amend her petition, to re-enter judgment for defendant

All concur.

      . Citing: State ex rel. Brickey v. Nolte, 350 Mo. 842, 169 S.W.2d 50; State ex rel. Barker v. Chicago & A. R. Co., 265 Mo. 646, 178 S.W. 129. Also see: Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Robert v. Davis, (Mo.App.), 142 S.W.2d 1111; Am. Button Co. v. Weishaar, Mo. App., 170 S.W.2d 147; Leone v. Bilyeu (Mo.App.), 238 S.W.2d 317; McKinley v. Durbin (Mo.App.), 231 S.W.2d 286; Richter v. Frieden (Mo.App.), 243 S.W. 2d 783.

      . Among the numerous Missouri cases so holding are:
      Mueller v. Grunker, Mo.App., 123 S.W. 469
      Gorg v. Rutherford, Mo.App., 31 S.W.2d 585
      Smith v. Hauger, 150 Mo. 437, 51 S.W. 1052
      Nelson v. Barnett, 123 Mo. 564, 27 S.W. 520
      McLean v. Bergner, 80 Mo. 414 Einstein v. Strother, Mo.App., 182 S.W. 122
      Michie v. Grainger, Mo.App., 129 S.W. 983
      Standard v. Lacks, 25 Mo.App. 64 Weinerth v. Trendley, 39 Mo.App. 333 Baldwin v. Dalton, 168 Mo. 20, 67 S.W. 599
      Houts v. Shepherd, 79 Mo. 141
      Walther v. Null, 233 Mo. 104, 134 S.W. 993
      Peeters v. Schultz et al., 300 Mo. 324, 254 S.W. 182
      Warden v. Busbee, Mo.App., 89 Mo.App. 113
      Clyce v. Anderson, Executor, 49 Mo. 37

      . See Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565
      Peeters v. Schultz et al., 300 Mo. 324, 254 S.W. 182
      Einstein v. Strother, Mo.App., 182 S.W. 122
      Baldwin et al. v. Dalton et al., 168 Mo. 20, 67 S.W. 599
      Walther v. Null, 233 Mo. 104, 134 SW. 993

      . In Baldwin v. Dalton, 168 Mo. 20, 67 S.W. 699, it is held that collusion between the executor or administrator and the probate judge to approve a false settlement is a sufficient basis to directly attack it.
      In Fitzpatrick v. Stevens, Mo.App., 89 S.W. 897, a probate court judgment on a claim was set aside for fraud held to have been perpetrated on the court in its procurement because the demand was supported by a false affidavit. This court said, “That the instrument which set the (probate) court in motion involved none but intrinsic facts made it none the less a fraudulent device, without which the court could not have acted. Through it the proceedings reached the hand of the court tainted with fraud. To thrust a thing so corrupt in its inception into court was a fraud upon the administration of justice, and no judicial act innocently performed for its effectuation could serve to purge it of corruption. The case, therefore, possesses all of the elements for equitable action”.
      Also see Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706, a suit to declare void a judgment contrary to a minor’s interest on the grounds of “fraud, mistake or accident”. Belief was granted because the guardian ad litem took certain action in the original case “in excess of his lawful authority, and by mistake of his counsel, and against the interests of said minor”. The Supreme Court observed that to refuse redress “would be a reproach to the administration of justice”.


author: BROADDUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles CACIOPPO, Appellant.
    No. 23840.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Simon & Pierce, Kenneth K. Simon, Lewis E. Pierce, Kansas City, for appellant.
    Lawrence F. Gepford, Pros. Atty., Jackson County, Edward J. Houlehan, Asst. Pros. Atty., Kansas City, for respondent.
   BROADDUS, Presiding Judge.

The appellant was indicted by the Jackson County Grand Jury and charged with, on or about October 17, 1961, receiving stolen property described as cologne, deodorant, cold tablets, aspirin, shaving lotion, soap and combs, all the aggregate value of $28.85, knowing said property to have been stolen and with intent to defraud the Katz Drug Company, a corporation. The appellant entered a plea of not guilty and was tried by a jury which returned a verdict as follows: "We, the jury, find the defendant Charles Cacioppo guilty of receiving stolen property of under the value of $50.00 and assess his punishment by 6 months in jail and $1,000.00 fine.”

The evidence adduced on behalf of the State was that on October 18, 1961, Mr. Bao, manager of the Katz Drug Store located at 3124 Raytown Road, noticed a loss of merchandise from the cosmetic department of his store. Mr. Bao, reading from a list prepared by him and his employees, itemized by brand and amount the items which he was unable to account for. The items had a total retail value of $56.

Arthur Williams testified on behalf of the State that he and a man identified as Ernest Jordan, together with Ida Mae Thornton and Freda Oliver were, on the night of October 17, 1961, out “boosting” or stealing from various stores including the Katz store located at Raytown Road, from which they took a quantity of toilet articles described as deodorant, shaving lotion and combs. Williams testified that he took his portion of the articles to Atlas Sundries at 19th Street and Vine, Kansas City, Missouri, where he sold them to the defendant for $25.

Ida Mae Thornton testified that she was with Arthur Williams, Ernest Jordan and Freda Oliver on the night of October 17, 1961, when they went to several Katz stores for the purpose of shoplifting, including the one at 31st and Raytown Road, where they stole a quantity of toilet articles which she identified as toothpaste, mints, lotion and combs. She stated that they drove to the address at 19th & Vine at about eleven p. m. where the two men entered the store and that later a man whom she identified as the appellant returned to the car and reportedly said, “be careful coming in the front way with this stuff.” She testified that Williams and Jordan then carried the merchandise into the store, entering the front door. She stated that Ernest Jordan returned with his merchandise and that he was angry because he could not sell his merchandise; that Williams returned after selling his merchandise and divided $25 between himself and Freda Oliver.

Mr. Bill Witcig, a detective on the Kansas City, Missouri Police Department assigned to the Burglary unit, testified that on the 19th day of October, 1961, he and. Detective Colosterman made a search of the Atlas Drug Store at 19th & Vine; that they were looking for merchandise bearing Katz and Safeway labels and, as a result of the search, they “brought in about 20 items all together, there were several with Katz labels and that sort of thing.” He described the items as toilet articles, shaving lather and cosmetics. Mr. Witcig was not asked to and did not identify any articles as being those recovered from the store and the articles were not identified as being stolen from the Katz Drug Store. At the time of the search the appellant was not on the premises.

The appellant’s evidence established that the manager of Atlas Drug Store where appellant was employed, was one Samuel Joseph LaGrotte, who testified that on occasion he purchased from chain stores certain merchandise which he found them to be selling below cost, and he further testified that he did on occasion and had prior to October 17, 1961, purchased merchandise from Katz Stores which he was able to buy cheaper than he could buy it from his own suppliers. He stated that the officers did take from his store, in his presence, items which bore Katz labels which he stated to the officers at the time of the seizure he had himself purchased and paid for.

Beverly Sherrow testified that she was a clerk in the Atlas Drug Store, and was on duty on October 17, 1961, when two colored men came into the store carrying a box, or sacks of merchandise and had a discussion with Mr. Cacioppo. She stated after a short conversation, Mr. Cacioppo started yelling and cursing and told them to get out of the store; that he didn’t want anything to do with them. She further testified that the appellant did not leave the store during the evening.

Appellant’s first contention is that the. court erred in overruling his motion for judgment of acquittal at the close of all the evidence. This court cannot weigh the evidence in a criminal case. We can only determine if there is substantial evidence to support the verdict. In making this determination we must view the evidence in the light most favorable to the verdict. We must accept the State’s evidence as true and draw therefrom the most favorable inferences to the State and disregard defendant’s contradictory evidence. State v. Morris, 307 S.W.2d 667, 668 (Mo.Sup.)

It is often difficult to make direct and positive proof of the accused’s knowledge that the goods were stolen, and this element may be inferred from facts and circumstances in evidence. State v. Hicklin, 358 Mo. 1016, 218 S.W.2d 564, 565. The more frequent factors from which guilty knowledge has been inferred are inadequacy of price, irresponsibility of the vendor and secrecy of the transaction. State v. Ham, 104 S.W.2d 232, 233, (Mo. Sup.) According to the State’s evidence all of those factors were present in the instant case. Thus appellant’s motion was properly overruled.

Appellant next attacks the verdict. We have set it out in the opening paragraph of this. opinion. As is to be noted it does not contain the usual words “as charged in the indictment”. It omits two very important elements of the crime of receiving stolen property, i. e., knowledge on the part of appellant that it was stolen, and, since the 1955 amendment to Sect. 560.270, “with intent to defraud” the owner thereof. State v. Harris, 313 S.W.2d 664 (Mo.Sup.); State v. Bryant, Mo., 319 S.W.2d 635.

In the case of State v. Saussele, Mo., 265 S.W.2d 290, our Supreme Court, En Banc, reviewed many Missouri decisions wherein certain verdicts had been denominated as special verdicts and concluded that those cases actually seem to have been decided on the basis of definiteness, certainty and responsiveness of the verdict. The court then said:

“Of course, a verdict that does not refer to the indictment in its description of the offense, of which it finds the defendant guilty, must be responsive to the charge made by the indictment and certain as to the offense intended; or, as the cases say, a verdict must contain either in itself or by reference to the indictment all of the essentials of the crime. See State v. DeWitt, supra, 186 Mo., loc. cit. 69, 84 S.W. 956.” (Emphasis ours.)

In the DeWitt case which the court cites appears this quotation: “A good verdict must contain either in itself or by reference to the indictment all the essentials of the crime. If silent on some element of the crime, the verdict will not sustain a judgment.”

In the case of State v. Pollock, 105 Mo.App. 273, 79 S.W. 980, the court held:

“A verdict which found, without referring to the indictment, a defendant guilty of receiving stolen property, and failed to find that he knew the property was stolen, was not responsive to the indictment and a judgment rendered thereon should have been arrested.”

This was the law then. It is the law today. Had the jury in the instant case referred to the indictment the verdict would have been good. Not having done that, the failure to find the essential elements of the crime, to-wit: knowledge on the part of appellant that the goods were stolen and with intent to defraud the owner thereof, renders the verdict bad.

Appellant’s next point is that the State failed to prove that the Katz Drug Company was a corporation. The following appears in the testimony of Mr. Bao, the store manager :

“Q. Now, then, is the Katz Drug Company a corporation? A. It is a corporation.”

In the case of State v. Bright, 269 S.W.2d 615, 621, (Mo.Sup.) the court said: “Defendant also asserts that there was no evidence that Forest City Manufacturing Company was a corporation. Its general superintendent expressly testified that it and its subsidiaries were corporations. That was sufficient.”

Appellant’s last contention we need not discuss. It relates to a matter which will not likely occur again on retrial.

The judgment is reversed and the cause remanded.

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Mary Lee HENDERSON, Plaintiff, Appellant, v. C. A. HENDERSON and Bill Allen Chevrolet, Inc., Defendants, Respondents.
    No. 23855.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      J. Nelson Thompson, Kansas City, for appellant.
    Roy F. Carter, Kansas City, for respondents.
   SPERRY, Commissioner.

Plaintiff, Mary Lee Henderson, sued defendants, C. A. Henderson, a resident of Jackson County, Missouri, and Bill Allen Chevrolet, Inc., a corporation, hereafter referred to as Allen, having its place of business located in Clay County, Missouri. From an order by the Court dismissing the cause as to Allen, Plaintiff appeals.

Plaintiff filed in the Circuit Court of Jackson County, a pleading titled “Petition for Recission and Damages”. Therein the above mentioned C. A. Henderson and Allen were named as defendants.

A summons to Henderson was issued on November 2nd, 1962. The return thereon shows diligent search from November 1st to December 2nd, 1962, and failure to find said Henderson at 1906 East 36th St., Kansas City, Missouri, his named address. On November 2nd, 1962, summons was issued to Allen and the return shows service thereon in Clay County, Missouri, on November 7th, 1962, by the Sheriff of Clay County.

On December 6th, 1962, Allen filed motion to dismiss as to it on the grounds that it is not a resident of Jackson County; that no part of the transaction sued on occurred in that County; that Henderson had never been served with process; that he is a nominal party and was falsely and fraudulently named as a party in an attempt to give the Court jurisdiction of the pending action. The motion was supported by affidavit.

On December 13th, 1962, alias summons was issued to C. A. Henderson. The return was to the effect that the summons was served on Henderson December 13th, by leaving copy of it and the petition with a member of his family over 15 years of age, at defendants’ dwelling or usual place of abode. Thereafter, Allen filed motion to quash the return to Henderson because the summons was served on plaintiff Henderson, not defendant Henderson. The motion was overruled and Allen was granted 15 days in which to plead.

On January 9th, 1963, summons was issued to C. A. Henderson. On the back thereof appears the following; “I, C. A. Henderson, hereby enter my appearance to the above action”. It was signd “C. A. Henderson”.

On January 14th, 1963, Allen filed supplemental motion to dismiss, alleging that when its original motion to dismiss was overruled, there was pending, and is now pending, Allen’s motion to quash return to C. A. Henderson; that the summons was actually served on plaintiff.

At a hearing on the motion Deputy Sheriff Shuster testified, from Sheriff’s records, to the effect that the first summons issued to Henderson was never served; that an alias summons was served on him by delivery to Mary Lee Henderson, wife of C. A. Henderson, at 1510 East 14th Street. A deputy Circuit Clerk of Jackson County testified to the effect that on the back of a summons issued in this case to C. A. Henderson, there appears an entry of appearance typed in and the signature “C. A. Henderson” ; that plaintiff’s attorney brought Henderson to the desk of witness; that an entry of appearance was already typed on the back of the summons; that C. A. Henderson signed same in the presence of witness and that witness then signed same and placed her Notarial seal on it.

At that time, the record discloses, a conversation occurred between the Court and Counsel for plaintiff. The Court told Counsel that Counsel himself had told the Court that he, Counsel, had nothing to do with Henderson coming to the Clerk’s office and signing an entry of appearance. To this query Counsel stated that he did not bring Henderson in to the office; that he “happened” to be there when Henderson walked in; that a Clerk asked the attorney if he knew about the case and he told her that Henderson was a defendant in the case; that the Clerk asked the attorney if he could type up an entry; that he had been advised by plaintiff that Henderson would be in the Clerk’s office at that time. The Court stated into the records as follows:

“In the first place, I don’t know as that is an entry of appearance. It has a man’s name and notary. There is no ■affidavit, and there is nothing else. This thing smacks of fraud, smacks of collusion. The only way you could put venue over here is by collusion, by a woman suing her husband, and you march yourself over in Clay County, if you want to file this lawsuit, and I think you can probably get Mr. Henderson over there to enter his appearance, but at least we will have the proper appearance and venue in the lawsuit.
“The motion to dismiss is sustained.”

It was ordered and adjudged that plaintiff’s petition as to Allen be dismissed. Thereafter, defendant Henderson filed answer.

We have set out, in detail, in chronological order, the various pleadings filed by Allen beginning with its first motion which challenged the jurisdiction of the Court to proceed as to it. Plaintiff contends, that by reason of its pleadings and conduct, Allen has conferred on the Court jurisdiction to proceed on the merits of the case. This contention must be overruled. Civil Rule 55.37, V.A.M.R.; State ex rel. Ballew v. Hawkins (Mo.App.) 361 S.W.2d 852, 858-859; Shall v. Henry, 7 Cir., 211 F.2d 226, 230-231.

Plaintiff urges that the Court erred in dismissing the action as to Allen on the grounds stated by the Court that the attempted service of process on plaintiff, and the action of plaintiff and of defendant Henderson in connection therewith, smacked of fraud. All of the facts bearing on this issue have been set out. They are un-controverted.

The only question here is whether those facts sufficiently indicate fraud and collusion perpetrated by the Hendersons for the purpose of vesting the Jackson Circuit Court with jurisdiction over defendant Allen. The Court said, in Glaze v. Glaze (Mo. App.) 311 S.W.2d 575, 578, that it was well settled long ago that no Court should sanction any attempt to bring a party within its jurisdiction by fraud and misrepresentation. However, those statements were made in connection with situations involving the bringing of a party into the jurisdiction by criminal process for the purpose of serving him with a Civil process. We have found no case dealing with a situation similar, on the facts, to the case here presented.

Fraud, usually, is not readily susceptible of proof; but a finding of fraud must rest on something more substantial than suspicion, surmise and speculation. He who asserts fraud has the burden of making it manifest. If, in the pursuit of fraud, two judicial views are open on the facts, one in favor of honesty, the other contra, we must take the nobler view and find against fraud. Honesty of intent and purpose should be presumed unless the facts and circumstances are such as to satisfy the mind to the contrary. Glaze v. Glaze, supra, 311 S.W.2d 578, 579.

In this case, plaintiff had the legal right, in good faith, to sue her husband and Allen in a joint action, in a proper case. She could bring the suit in Jackson County, where plaintiff and defendant Henderson were residents, and cause Allen to be served with process in Clay County. Such procedure, of itself, would not indicate fraud. Ordinarily, a defendant in a civil action (including a divorce case) may voluntarily waive service of process and enter appearance. It is a common practice. Such an act, of itself, does not carry an implication of fraud or collusion. As we view the record here, this is as far as the evidence goes. We can not presume fraud, and fraud has not been proven.

The judgment is reversed and the cause remanded.

MAUGHMER, C., concurs.

PER CURIAM.

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


text:
    Ramona ORONA, by her next friend, Lola Beatrice Cox, Respondent, v. CONSOLIDATED CAB COMPANY, a corporation, Appellant, Traders National Bank, Garnishee.
    No. 23707.
    Kansas Oity Court of Appeals. Missouri.
    Dec. 2, 1963.
    Thos. J. Conway, Jr.; Popham, Thompson, Popham, Trusty & Conway, Kansas City, for appellant.
    Arthur J. Kase; Rubins, Kase & Ru-bins, Kansas City, for respondent
   CROSS, Judge.

Plaintiff-respondent, a minor, sustained personal injuries in a collision' between a taxicab and an automobile in which she was a passenger. For resultant damages she maintains this suit, through her mother as next friend, against defendant-respondent taxicab company, designated in the petition as “Consolidated Cab Company, a corporation”. Upon defendant’s default the trial court heard evidence and rendered judgment for plaintiff in the amount of $3000.00.

Pursuant to general execution, plaintiff served notice of garnishment upon Traders National Bank and filed interrogatories. In answer the garnishee bank stated that it held cash and securities in an amount and value in excess of $11,000.00, deposited in the name of Consolidated Cabs, Inc., a corporation.

Thereafter defendant appeared in the case, alleging its identity to be “Consolidated Cabs, Inc.”, and filed a motion to quash the execution and garnishment on the ground there was no valid supporting judgment inasmuch as the judgment relied upon was rendered against “Consolidated Cab Company, a corporation” — a nonexistent entity. The trial court overruled defendant’s foregoing described motion and sustained plaintiff’s motion for an order directing the garnishee to pay funds into court in satisfaction of the judgment. From the judgment entered on these rulings, defendant appeals.

In a single point appellant contends the trial court erred in refusing to quash the execution and in ordering the garnishee to pay money into court “for the reason that the only judgment in this case is against Consolidated Cab Company, a nonexistent legal entity, and garnishment of the funds of Consolidated Cabs, Inc., was improper”. Appellant takes the position that it is a stranger to this action and is unaffected by the judgment rendered. Some additional facts necessary for determining the assignment are here set out.

As appears above, the petition named the defendant as “Consolidated Cab Company, a corporation”, and stated defendant’s residence as 2331 Vine (Street), Kansas City, Missouri. Summons was issued, directed to defendant as designated in the petition, and served by deputy sheriff James Monaco upon one J. D. Williams, registered agent for Consolidated Cabs, Inc., at that company’s business office located at 2331 Vine Street, in Jackson County, Kansas City, Missouri. Such manner of service is conclusively shown by the executing officer’s return and his supplemental affidavit filed. Williams denies that the summons was delivered to him, but this denial is ineffectual to impeach the officer’s return. It was, however, erroneously stated in the return that Williams was the president of Consolidated Cabs, Inc., but the error is of no consequence in view of the admitted fact that Williams was the company’s registered agent.

It clearly appears from the record that appellant Consolidated Cabs, Inc., is a Missouri corporation, with its registered office and registered agent, J. D. Williams, located at 2331 Vine Street, Kansas City, Jackson County, Missouri. Both parties admit there is no entity in existence named “Consolidated Cab Company, a corporation”.

This case is not the first to be brought and prosecuted against defendant in the name of Consolidated Cab Company, a corporation. As reflected by the transcript, the court records of Jackson County disclose at least nine other separate actions of this nature filed within the past five years. In six of those cases service was had upon J. D. Williams at defendant’s office at 2331 Vine Street in the same manner as was done in this case. In the other three cases service was effected at the same office but on other personnel. In six of the cases deputy sheriff Monaco was the serving officer. In each of the nine cases the answer was filed on behalf of the defendant as named in the petition and defendant proceeded thereunder. In every instance except two, the answers were filed by the attorney presently representing appellant.

Manifestly it is a fact that defendant was incorrectly named and proceeded against in the instant case, as well as in the other nine cases referred to. It is equally apparent from the record that plaintiff sued and secured the service of process upon the party she intended to sue as defendant. Summons was actually served on the right party, but by the wrong name. In law, as well as in the ordinary usage of language, such an error or mistake is termed a “misnomer”.

A defendant who is misnamed in an action has the right to interpose a timely and proper objection to the defect and have it corrected. However, in this case, any right of the defendant to complain of the misnomer was waived by its failure to object to it at the proper time. It is the rule that an objection based on a misnomer or misdescription of parties should be raised at the first opportunity in due order of pleading, before issue joined, and before trial, verdict or judgment. Failure to object at the proper time, and in the proper manner constitutes a waiver of the objection, as where, instead of objecting that he is sued by the wrong name, the defendant enters a general appearance, pleads to the merits, or suffers judgment by default. 67 C.J.S. Parties § 149, pp. 1151-1152. Also see Bedell v. Richardson Lubricating Co., Mo. App., 226 S.W. 653; and, Thomas v. Schapeler, Mo.App., 92 S.W.2d 982.

Aside from the foregoing, it is settled law in Missouri that the mere misnomer of a corporate defendant is immaterial if the corporation was not thereby misled and if there was no substantial mistake indicating an intention on the part of plaintiff to sue a different entity. A judgment against a corporation sued as the intended defendant by the wrong name, but in reality served with process, is a valid judgment and binding upon defendant whether it appears or makes default.

Blades v. Cinder Block Co., Mo.App., 10 S.W.2d 319, is a leading case on the present question. The true name of the defendant there sued was “Cinder Block Company of Kansas City”, but in the petition defendant was erroneously designated as “Cinder Block Company of St. Louis”. Service was obtained by delivery of process to the vice-president of defendant corporation at its usual business office. There, as in this case, defendant defaulted and judgment was rendered in favor of plaintiff and against the defendant as misnamed in the petition. Under execution issued, certain property of defendant was levied upon. Also, as in this case, the defendant resisted the levy and claimed the property on the ground that the judgment was invalid by reason of the misnomer. Ruling the contention against defendant, the court stated: “The general rule is that, in actions at law and other judicial proceedings, the mere misnomer of a corporate defendant in words and syllables is immaterial, that is, provided there is no substantial mistake so as to indicate a different entity; that a judgment in the action will bind such defendant, if it in reality is duly served with process, whether it appears or makes default; and that the misnomer should be held immaterial, if it appears that the corporation could not have been, or was not, misled thereby. 14 C.J. 325, and cases cited”.

To similar effect are the decisions in Green v. Strother, Mo.App., 212 S.W. 399 and Parry v. Woodson, Mo.Sup., 33 Mo. 347. Of particular application is the following language quoted from Parry v. Woodson, supra, (also quoted in Green v. Strother, supra):

“A name is a means of identity; but the change of the name or the application of a wrong name does not change the thing identified. It is not the name that is sued, but the person to whom it is applied. Process served on a man by a wrong name is as really served on him as if it had been served on him by his right name, and if in such case he fail to appear, or, appearing, fail to object that he is sued by the wrong name, and judgment be rendered against him by such name, he is as much bound by the judgment as if it had been rendered against him by his right name. The use of the right name is every way preferable, since without it as a means of identification the evidence of the identity of the person sued may in process of time become lost; and hence the propriety of the amendment in this case; but so long as the defendant can be identified as the one against whom the judgment was rendered, he is as much bound by the judgment, and those claiming under the judgment are as much entitled to its benefits, to all intents and purposes, as if the defendant had been sued by his right name”.

The facts in this case induce our belief that the defendant was not misled by the misnomer. The variance between its true name “Consolidated Cabs Inc.”, and the inaccurate designation “Consolidated Cab Company, a corporation” is so slight it cannot be said there was a “substantial mistake so as to indicate a different entity”. Blades v. Cinder Block Co., supra. Despite the inaccuracy “the defendant can be identified as the one against which the judgment was rendered”. Green v. Strother, supra.

We are substantially influenced in the view we have expressed by the fact that defendant accepted service, responded thereto and went forward as a party in the nine other cases where it was designated by the identical misnomer and served in the same manner as in this case. If, in those cases, defendant had no misconception of the identity intended by the name “Consolidated Cab Co., a corporation”, it is inconceivable that defendant was deceived by the use of that name in this case.

We have examined the cases cited and relied upon by defendant and find that they have no material bearing on the matter at issue.

The original judgment rendered against defendant is valid and subject to payment. The record reveals that the garnishee bank holds funds belonging to defendant which are available to satisfy that judgment. The trial court took the proper course of action by overruling defendant’s motion and ordering the attached funds paid into court.

Accordingly, the judgment is affirmed.

All concur.

      . Defendant William Floyd Skinner was erroneously sued and served personally with, summons as “John Skinner”.

      . Defendant Branham H. Woodson was erroneously sued by the name “Benjamin H. Woodson” and personally served with process so directed.


author: MORRISON, Judge.

text:
    Manuel RODRIGUEZ and Blas Villarreal, Appellants, v. The STATE of Texas, Appellee.
    No. 35897.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Jan. 8, 1964.
    Vern J. Thrower, Donald R. Royall, C. Anthony Friloux, Jr., Houston, Les Procter, Austin (On Appeal Only) for appellant Manuel Villarreal.
    Frank Briscoe, Dist. Atty., Gus J. Zgourides, Carl E. F. Dally and Howell Stone, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the appellant Villarreal received the punishment of death while the appellant Rodriguez’ punishment was assessed at confinement for 99 years, Rodriguez has filed in this Court his proper application to dismiss his appeal and the same is granted. Villarreal’s appeal alone will be considered.

Deceased, an informer for the Narcotics Division of the Houston Police Department, was fatally shot through the window of his home while he lay in bed. The State’s case against Villarreal is made to depend upon a confession secured from him at the Ranger Headquarters in the northwest section of the city of Houston after a period of some seven hours of interrogation, not having been arrested by virtue of a warrant or carried before a magistrate. A strong case of involuntariness due to police brutality was made out by the testimony of the accused, by means of pictures and testimony of doctors and lay witnesses. However, we are met with the test applied by this Court and the Supreme Court of the United States that if from an examination of all the testimony there remains no undisputed evidence which would render the confession inadmissible, then the appellate court will be bound by the finding of the jury that the same was voluntarily made. Appellant names the officers who he said inflicted the brutality upon him, one of these being Officer Hightower, and each of them categorically denies the truth of his testimony and gives explanations as to the bruises found upon his body inconsistent with their having inflicted the same.

We come now to appellant’s principal contention. He was arrested shortly before 7:00 a. m. on October 4, and carried to the Ranger Headquarters where he testifies the acts of brutality were inflicted upon him. The testimony of one Hermasillo was offered to the effect that on October 3, he had been arrested by State Narcotics Agent Scholl and Officers Chavez and Pollock, was then carried to a strange place where brutality was inflicted upon him by Narcotics Agent Scholl in connection with questions propounded to him about the death for which Villarreal here stands convicted, and that he finally confessed that he had committed the murder, but he was released in the afternoon of October 4, without any charges growing out of this murder being filed upon him. He testified that one of the officers he recognized by his voice as being present during this interrogation was Officer Hightower. This testimony was offered in support of Villarreal’s testimony that practically the same treatment had been accorded him prior to his alleged coerced confession to the murder. Briefly, Villarreal testified that he was arrested without a warrant at 7:00 a. m. on October 4, by Narcotics Agent Scholl and, without being taken before a magistrate, carried to the State Narcotics Office in the northwest part of the city of Houston where police brutality was inflicted upon him by a number of officers, two of them being Narcotics Agent Scholl and Officer Hightower, Officer Chavez also being present, for a period of approximately seven hours until he signed a confession to the murder. Captain Waycott testified that Villarreal’s confession was completed at 3:22 p. m., October 4. The witness Zimmerman testified that he took a replica of defense exhibits Number Four and Number Nine of October 5, which was the day following the taking of the confession, while Villarreal was still in custody. These pictures depict extensive bruises in the abdominal area and to the eye. There was other evidence of brutality inflicted upon Villarreal prior to the occasion in question and pictures showing extensive bruises allegedly inflicted by the police to the back of his twin brother were also introduced as evidence.

In order to render such testimony admissible under the rule announced in Bownds v. State, Tex.Cr.App., 362 S.W.2d 358, the circumstances of the interrogation must be so strikingly similar as to lead the jury to believe that the officers followed this practice in securing confessions. Both Hermasillo and Villarreal were interrogated in the same wing of the same building. This testimony standing alone might not have met this test, but the State called Narcotics Agent Scholl, who testified that he brought Hermasillo to his Narcotics Office in the Ranger Station located in the northwest part of Houston in company with Officers Chavez and Pollock on October 3, that he remained there until 2:00 p. m. on October 4, that during that period of time several officers (including Officers High-tower and Chavez) began arriving and Villarreal, who had been brought to the Ranger Station at 7:00 a. m. on October 4, was there being questioned concerning the same offense.

As in People v. Cohen, 243 App.Div. 245, 276 N.Y.S. 851, there was evidence that accused bore no marks or bruises upon his person prior to his arrest, as there was in the case at bar, plus evidence that after his interrogation by the police, his body was bruised and battered. The Court there held that the trial court erred in excluding the testimony of one of his companions, who was arrested with him and interrogated at the same time and place about the same transaction.

Reliance is had by the State upon Mohler v. State, 98 Tex.Cr.R. 238, 265 S.W. 553. It is apparent that this case can have no application here because there was no claim that any brutality was inflicted upon accused, and therefore, no basis for showing the mistreatment of his son. There the treatment of the son was purely a collateral matter, whereas here the brutality inflicted upon Hermasillo which resulted in what apparently was a false confession is of utmost importance to the jury in determining first, if the appellant’s confession was coerced, and secondly, if it was true.

For the error of the Court in excluding the testimony of Hermasillo and under the authority of Bownds v. State, supra, the judgment against Villarreal is reversed and the cause remanded.


author: WOODLEY, Presiding Judge.

text:
    Gussie Lee BARNETT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 36352.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.
    C. C. Divine, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Ripley Woodard, Asst. Dist. Attys., Houston and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal by C. C. Divine and H. G. Divine, the sureties on the bail bond of Gussie Lee Barnett in the sum of $400, from a judgment rendered in County Court at Law No. 1 of Harris County forfeiting said bond.

The question which we deem controlling is whether the bail bond bound the principal to appear in County Court at Law No. 1 to answer in the cause in which the bond was forfeited.

The prosecution in County Court at Law No. 1 was instituted on January 26, 1961, by the filing of a complaint and information in Cause No. 151604 alleging the offense of shoplifting and the removal of six pounds of sausage of the value of less than $50. The complaint was made by Hope Williams.

The appearance bond forfeited was dated, approved and filed in Justice Court, Precinct No. 1 of Harris County, on January 24, 1961, in Cause No. 244816. It was later filed in the County Court at Law No. 1 in Cause 151604. The bond recites that the principal had been arrested on a charge of misdemeanor theft by virtue of a warrant issued by Thos. M. Maes, Justice of the Peace, Precinct No. 1 of Harris County, and bound the principal to appear before said Justice of the Peace instanter.

It is the state’s position that the bail bond bound the principal to appear in County Court at Law No. 1 to answer the complaint and information charging shoplifting under Art. 275a Vernon’s Ann.C.C. P., and the provision of the bond “and shall personally appear for any and all subsequent proceedings had relative to the above charges before the grand jury of said county and before any court of said county in ■which said subsequent proceedings may be pending

We are unable to agree with such contention.

The complaint in the Justice Court in the Cause in which the appearance bond was entered into was made by Parks Kirkland and was filed on January 23, 1961. It charged the felony offense of theft of edible meat, an offense of which neither the Justice Court nor the County Court at Law had jurisdiction to try.

It is true that under Art. 1436e, Sec. 7, Vernon’s Ann.P.C., the state had authority to elect to prosecute the principal for the felony offense of theft of edible meat or to prosecute for shoplifting, a misdemeanor. Plowever, the proceeding instituted in County Court at Law No. 1 by the filing of a complaint and information alleging the offense of shoplifting is not, under the record, a “subsequent proceeding” had relative to the felony charge filed in Justice Court.

In Picaroni et al. v. State, Tex.Cr.App., 364 S.W.2d 240, the bail bond for the principal’s appearance before a magistrate to answer a charge of felony theft was forfeited in District Court. We reversed, pointing out that we were in no position to say that the bond by reason of Art. 275a V.A.C.C.P. became an obligation binding the principal and sureties for the principal’s appearance in the district court, or in any court other than Justice Court, because the record did not show that the principal had been committed to await the action of the grand jury or that the indictment returned against him was for the same offense charged against him in Justice Court.

In the absence of any action of the Justice of the Peace in regard to the complaint before him other than as indicated by the stamp thereon: “Transferred to the District Attorney”, we hold that the charge in County Court at Law No. 1 was not “the same criminal action” as that in which the forfeited bond was given.

We further note that the bond forfeited is defective in that it recites that the principal was charged with misdemeanor theft, whereas the complaint was for theft of pork sausage (edible meat), a felony. Under Art. 273 C.C.P., one of the requisites of a bail bond is: “If the defendant is charged with a felony, that it state that he is charged with a felony. If the defendant is charged with a misdemeanor, that it state he is charged with a misdemeanor.”

The judgment is reversed and the cause is remanded.


text:
    Gussie Lee BARNETT et al., Appellants, v. The STATE of Texas, Appellee.
    No. 36353.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.
    C. C. Divine, Houston, for appellants.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Ripley Woodard, Asst. Dist. Attys., Houston and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from a judgment of County Court at Law No. 1 of Harris County forfeiting a bail bond in the sum of $400.

The same parties are before the Court and the same questions are presented as in our Cause No. 36,352 this day decided.

The offense alleged in the complaint of George V. Abert filed in the Justice Court was theft of “3 Pks. sirloin steak and one pkg. of filet mignon steaks * *

The complaint and information filed in the County Court three days later alleged the offense of shoplifting and the removal of “four packages of steak.” The complaint was made by Hope Williams.

The bond approved and filed in the Justice Court cause and later filed in County Court at Law No. 1 has the same terms and conditions as the bond before us in our Cause No. 36,352.

For the reasons stated in the opinion in Cause No. 36,352, the County Court was without authority to enter judgment forfeiting the bail bond herein.

The judgment is reversed and the cause is remanded.


text:
    Ex parte William PRESTRIDGE.
    No. 36610.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.

      William Prestridge, relator pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding filed originally in this Court wherein the petitioner attacks the judgment of conviction he is serving in the Texas Department of Corrections.

The indictment was in four counts, the first alleging rape, the second alleging incest, the third alleging assault with intent to commit rape, and the fourth alleging attempt to commit rape.

The judgment upon which sentence was pronounced against petitioner recites that a jury was waived and that the petitioner pleaded guilty to the charge contained in the indictment. It adjudged the defendant “guilty of the offense of Assault with the intent to commit rape, as confessed by him” and adjudged that he be punished by confinement in the state penitentiary for fifty years.

The judgment of conviction is attacked as void because of the failure of the trial court to appoint counsel to represent him upon the trial of the case.

The record before this Court reveals that petitioner did in fact plead guilty before the trial court, that he had no attorney and that no attorney was appointed to represent him.

Article 10a Vernon’s Ann.C.C.P. provides that before a defendant who has no attorney can agree to waive a jury, the court must appoint an attorney to represent him. This provision is mandatory. Ex parte Williams, 169 Tex.Cr.R. 565, 336 S.W. 2d 429; Ex parte Washington, 168 Tex.Cr. R. 366, 328 S.W.2d 188.

We further observe that the offense alleged in the first count of the indictment does not appear to have been dismissed, and the court was without jurisdiction to try the petitioner under an indictment for that offense without a jury, it being a capital felony. Ex parte Padgett, 161 Tex.Cr.R. 498, 278 S.W.2d 865.

Also we observe that the petitioner was sentenced to serve a minimum term of 5 years, the minimum punishment provided for rape but not for assault with intent to commit rape.

It is ordered that the petitioner be relieved from further confinement in the penitentiary under said conviction and that he be delivered by the penitentiary authorities to the Sheriff of Orange County to answer in the District Court of such county to the indictment which was originally returned against him in said Cause No. 4268.


author: BELCHER, Commissioner.

text:
    Jimmle MORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36087.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Rehearing Denied Jan. 8,1964.

      Joe J. Newman, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Don Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, two years in jail and a $500 fine.

Earnest Sampson testified that on passing a cafe, a waitress asked him to come in, as she was alone with.a man (appellant) who was sitting on a stool with his head resting on his hands on the counter. When he told the waitress he could not stay she said, “that man is sleeping over there, I am scared, would you mind waking him up before you leave,” whereupon Sampson shook appellant’s shoulder and said, “wake up man,” at which time appellant got up and began cursing Sampson; and after a few minutes, and while Sampson was lighting a cigarette, the appellant struck him twice rendering him unconscious. The next thing Sampson remembered was being in the hospital where he remained nine days because of injuries inflicted by appellant to his face and head,, resulting in the loss of the sight in his right eye.

The testimony of the waitress Williams: corroborates that of the witness Sampson until Sampson had fallen to the floor unconscious. She testified that after appellant knocked Sampson down he kicked and', stamped him three or four times in the face,, although she tried to prevent it, and the appellant then left the cafe. Sampson’s, eyes at this time were “all popped out (and)bloody.”

The physician who examined Sampson, at the hospital testified that he had suffered! a fracture of the nasal bone, a subconjunc-tival hemorrhage of the eye and had difficulty with the vision in the right eye, and expressed the opinion that he had suffered serious injuries.

Testifying in his own behalf, the appellant stated that he entered the cafe to purchase some cigarettes and while there decided to drink a beer; that as he sat at the counter with his head down, Sampson came into the cafe, and Sampson on the-pretense of waking appellant unbuttoned his left back pocket which contained $10' and was trying to ease his purse out at which time appellant asked “what did he mean” and hit him at the same time. Appellant further testified that he hit Sampson twice but did not kick and stamp him, and that he only intended to protect his. property and did not intend to injure him.

It is contended that the trial court erred in permitting Officer Johansen to express-the opinion that the use by a person of the size and physical build of the appellant of his feet to kick and stamp a person in the face would be a means calculated to inflict bodily injury such as he observed on the injured party, Sampson, over the objection that it was highly inflammatory and invaded the province of the jury.

As a predicate to giving the above opinion Officer Johansen testified that he had been a police officer five and a half years and had made many investigations of persons assaulted with fists and kicked and stamped with feet. No objection was made to the qualifications of Officer Johansen. Officer Johansen found the injured party lying in the grass, called an ambulance, and observed his condition at this time. The contention is overruled. Bell v. State, 163 Tex.Cr.R. 427, 293 S.W.2d 771.

Appellant complains of the argument made to the jury by the prosecuting attorney when he referred to the appellant as follows:

“He was a man who for some reason was not acting normal. I don’t know what he has done in his life time. I don’t know what got into that man’s system to cause him to not be acting normal. He said he wasn’t drinking, maybe it was some other substance in him that was causing him to have a mind like that, I don’t know.”

Whereupon the appellant objected on the ground that it was inflammatory and the prosecutor was implying that the appellant was using narcotics, requested the court to instruct the jury not to consider such argument and moved for a mistrial. The objection, request and motion were overruled by the trial court.

The waitress testified that when appellant came into the cafe “he just didn’t look right, he didn’t act right,” that he was not drunk, and that he slept on the counter, “about an hour or so.” Appellant testified that he had not drunk any beer before going into the cafe.

An examination of the state’s argument to the jury reveals that substantially the same argument complained of was again made without objection.

The formal bill does not appear to certify error but only that certain grounds were stated as objections. The complaint does not show error.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.