author: PER CURIAM. LUKOWSKY, Justice

text:
    Larry TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 16, 1976.
    Rehearing Denied Aug. 20, 1976.
    Jack Emory Parley, Public Defender, Paul F. Isaacs, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Appellant Larry Taylor was convicted of rape of a child under twelve years of age and sentenced to life imprisonment. He contends on this appeal that the trial court abused its discretion in refusing to grant a continuance.

An indictment under KRS 435.080 was returned against the appellant on July 25, 1974. Although an arrest warrant was issued on July 29,1974, appellant was at that time incarcerated in a federal prison in Texas and he was not formally arrested until he was returned to London, Kentucky, on December 2, 1974. He was assigned counsel and arraigned on December 3,1974, at which time trial was set for December 5, 1974.

On the trial date, appellant, through counsel, moved for a continuance on the basis that appointed counsel had only talked with the appellant for two brief intervals and that he had been given insufficient time to prepare the defense and subpoena possible witnesses. His motion was denied.

RCr 9.04 specifies that a motion by the defendant for a postponement of the trial “may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it. If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true. * *

Appellant’s oral motion was not accompanied by the required affidavit. Moreover at no time, before, during or after trial did appellant specify any evidence bearing on appellant’s guilt or innocence which might have been presented had a continuance been granted.' Indeed there is no showing in the record that counsel could have presented any additional evidence had a continuance been granted.

Inherent in the concept of right to counsel is a reasonable time and opportunity for counsel to prepare. Roberts v. Commonwealth, Ky., 339 S.W.2d 640 (1960); Turner v. Commonwealth, Ky., 485 S.W.2d 511 (1972). Nevertheless, the granting of a continuance is within the sound discretion of the trial court and a conviction will not be reversed for failure to grant a continuance unless that discretion has been plainly abused and manifest injustice has resulted. Adams v. Commonwealth, Ky., 424 S.W.2d 849 (1968); Stewart v. Commonwealth, Ky., 479 S.W.2d 23 (1972); Thacker v. Commonwealth, Ky., 306 S.W.2d 292 (1957).

The evidence of the appellant’s guilt was overwhelming. The defense admitted that the victim had indeed been raped. The appellant was identified by the victim as the man who attacked her and witnesses placed appellant and his car in the vicinity of the crime.

Not only did the victim positively identify the appellant but prior to his apprehension she described the clothes he was wearing as a blue Levi jacket, blue Levi breeches, a white tee shirt, a blue hat and red tennis shoes. When appellant was apprehended on another charge the night of the rape he was wearing a blue denim jacket and jeans and red tennis shoes.

Medical and scientific evidence also pointed strongly to the guilt of appellant. Appellant took the stand, denying commission of the crime, and presented his uncle as an alibi witness. The record does not indicate and appellant does not claim the existence of any other particular witnesses not called at trial who could have aided in the defense.

This court is unanimously of the opinion that defense counsel in a rape case is entitled to more than one day in which to prepare for trial. Conceding error in the denial of the continuance, we are not convinced from the showing made here that the error resulted in any manifest injustice in prejudice to appellant.

The defense presented was alibi. There is no suggestion in appellant’s brief that had additional time been granted a different or more effective defense could have been presented. Only one witness, an uncle, supported appellant’s alibi testimony although according to appellant’s testimony several of his kinfolk were present with him on the afternoon in question. The names and addresses of these kinfolk were known to appellant and his counsel. The fact that no effort was made to secure their attendance as witnesses does not give much credence to the idea that they would have supported appellant’s testimony. In the motion and grounds for new trial there is no allegation that any additional witnesses could have been obtained if more time had been granted nor does counsel suggest any way in which the grant of additional time would have been beneficial to appellant.

Under these circumstances we are not constrained to hold the failure to grant a continuance to be a prejudicial error.

Appellant also argues that he was denied the opportunity to secure counsel of his own choice. We fail to see any merit in this contention. Appellant never asserted that he had the funds to hire a private attorney nor did he tell the court he wanted to hire private counsel. The fact that the public defender is still representing appellant on appeal is further evidence that the appellant did not truly intend to retain private counsel.

Finally appellant claims he was prejudiced by improper questions addressed to him by the attorney for the Commonwealth. This argument is devoid of merit as well as unpreserved for judicial review. Although he now contends the Commonwealth’s questions were calculated to inflame and prejudice the jury, he did not object to them at trial nor move for a mistrial or an admonition to the jury.

An examination of the entire record has disclosed no basis for reversal of the judgment.

The judgment is affirmed.

All concur except REED, C. J., and LU-KOWSKY and PALMORE, JJ. LUKOW-SKY, J., dissents and files a written dissenting opinion in which REED, C. J., and PAL-MORE, J., concur.

LUKOWSKY, Justice

(dissenting).

I respectfully dissent from the opinion of my brothers. The alchemy by which they transmute an admitted flagrant abuse of judicial discretion into harmless error would do credit to a Merlin. This legerdemain is so expedient and appealing that I am required to expose the illusion lest the goddess of justice be transformed into a sorcerer’s apprentice.

Although the crime was committed and the indictment returned several months pri- or to trial, counsel was not appointed until December 3, 1974. The trial began on December 5, 1974. If the day counsel was appointed and the day of trial are not counted, cf. Turner v. Commonwealth, Ky., 485 S.W.2d 511 (1972), counsel for appellant had one full day in which to prepare for trial of this serious offense. To suggest that counsel could investigate a crime occurring several months earlier, consult fully with the accused, seek discovery, interview prospective witnesses, examine and study medical and laboratory reports obtained by the prosecution, research the applicable law, prepare jury instructions, prepare his opening statement and summation, and plan a strategy of defense in one day is to ignore reality. United States v. Miller, 508 F.2d 444 (1974).

In Nelson v. Commonwealth, 295 Ky. 641, 175 S.W.2d 132 (1943), this court wrote:

“ * * * The constitutional right of one charged with the commission of a crime to be represented by counsel necessarily includes time for adequate preparation. The right to be represented by counsel would amount to nothing if counsel for the accused is not allowed reasonable time to prepare his defense. Adequate preparation by an attorney employed by one charged with a crime includes full consultation with his client, interviews with prospective witnesses, study of the facts and the law applicable thereto, and the determination of the character of defense to be made and the policy to be followed during the trial. As said in McDaniel v. Commonwealth, 181 Ky. 766, 205 S.W. 915, 920: ‘ * * * especially is some reasonable time for study and preparation required of an attorney who assumes the burden of representing an accused who is charged with a capital offense and whose life may be the penalty of any mistake or want of information on the part of his counsel. An attorney is never called on to perform a more serious or solemn or difficult duty than when he undertakes to defend an accused who is charged with a capital crime, and * * no attorney, however capable or experienced he may be, can go into the trial of a capital case within a few hours after he has been first employed, and give to that case the skill and ability the accused is entitled to have at his hands.’
We have frequently said that while it is important that a trial of a criminal prosecution should be had as speedily as possible, yet ‘it is more important that the trial should be fair than that it should be speedy.’ Samuels v. Commonwealth, 154 Ky. 758, 159 S.W. 575, 578. Undue haste in the administration of the criminal law is as much to be condemned as unnecessary delay. In Allen v. Commonwealth, 168 Ky. 325, 182 S.W. 176, 180, Elihu Allen was indicted for the murder of Grover Blanton. The killing occurred on August 7, the indictment was returned on Monday, August 16, and the trial was set for and commenced on Thursday, August 19. The defendant was convicted, and his punishment fixed at imprisonment for life. The judgment was reversed principally on the ground that the trial court erred in refusing to grant a continuance. In the course of the opinion it was said:
“It is not of course indispensable when a motion for a continuance is made that the case should be continued until the next term of the court, or for any certain time. All that is required is that the accused and his counsel shall have such time as the nature of the case and the circumstances surrounding it appears to be necessary to enable them to prepare for trial. A postponement for a few days may answer this purpose, or if need be a special term may be called, and with the numerous circuit districts in the state there is no reason why the trial of any case should be unreasonably delayed.
“But when a man stands charged with a capital offense, and may, in the discretion of the jury, be deprived of his life or his liberty forever, it is of the highest importance that he should have such time and opportunity to make his defense as the grave nature of the accusation and its consequences demand, and under the unusual conditions shown by the record we do not think that the appellant was given this time and opportunity. It is true he had employed counsel to defend him, and it does not appear that any witness whose evidence he desired was absent from the trial. But the mere presence of witnesses and the services of counsel is only a part of the preparation needed in important cases. The accused may in some cases have every witness that he needed in the courthouse and be represented by able counsel, and yet not have the time for the preparation that he should be allowed in order to properly present his defense.
“In the case we have, three days after the indictment and ten days after the commission of the crime charged, the accused was put upon his trial, and it might be said that there were only two days intervening between the finding of the indictment on Monday and the beginning of the trial on the following Thursday morning. During all this time he was lodged in jail, and we think did not have the time for preparation that the law in reason gives. This court has in many cases emphasized its purpose not to permit technical errors to interfere with the execution of judgments rendered after a fair trial, and has time and again said that it would not reverse cases unless it appeared that the substantial rights of the accused were prejudiced by some ruling of the trial court. But we have also condemned in equally emphatic terms the disposition sometimes brought to our attention of trial courts to hurry the accused into the trial of a capital case without giving him reasonable time for preparation.”
“ * * * Zeal to bring to prompt and proper punishment one guilty of so serious a crime as that charged in the present case must not be allowed to break down the constitutional guaranty of the right to counsel which includes the right to a reasonable time for counsel to prepare his client’s defense. * * *.”

Also see Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

I am not insensitive to the heinous nature of the crime perpetrated on the innocent young victim in this case. But the fact that the crime is so heinous is all the more reason that one accused of such a crime, who may be deprived of his liberty forever, should be given adequate time and opportunity to prepare his defense.

As the Supreme Court of the United States said in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

“However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. * *

I do not think the appellant in this case was given time for adequate preparation or that this error can be considered harmless. The harmless error doctrine applies with diminished rigor when the right to counsel is at stake. United States v. Robinson, 502 F.2d 894 (1974). The right is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. See concurring opinion of Stewart, J. in Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Once the malignancy of inadequate preparation time is established its metastasis is subtle, unpredictable, unidentifiable and necrotic. The virulence of the disease demands the radical surgery of a reversal and a new trial. No court possesses the omniscience required to pronounce that it is satisfied beyond a reasonable doubt that such an error did not contribute to conviction.

The burden is not as my brothers imply, on the appellant to convince the court that this type of error resulted in manifest injustice to his prejudice. The burden is upon the appellee to satisfy the court beyond a reasonable doubt that such an error did not contribute to conviction. Since the mind of man is too imprecise to trace and measure the effect of this error in regard to every aspect of the trial with the required certainty, the decision of my brothers, like the peace of God, passeth all understanding.

The majority also relies on the failure of the appellant to comply with the affidavit requirements of RCr 9.04. Since defense counsel was asking for time to investigate the case, interview possible witnesses and prepare the defense, RCr 9.04 governing continuance on the ground of the absence of known evidence or witnesses is not applicable.

The judgment should be reversed and the case remanded for a new trial.

REED, C. J., and PALMORE, J., concur in this dissenting opinion.

      . This would have been a capital crime if it were not for the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    In the Matter of D_ G_ K_, Jr., et al., Petitioners-Appellants, v. D_ G_ K_, Sr., Respondent.
    No. 37445.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 23, 1976.

      Mcllrath, Black & Williams, Gary R. Black, Sr., Flat River, Mo., for petitioners-appellants.
    Charles W. Medley, James E. Alexander, Farmington, Mo., for respondent.
   McMILLIAN, Judge.

This is an appeal by appellants B_S_ and L_ S_, from a judgment denying a petition for adoption of D_G_K_, Jr., a minor child. Petitioners have had continuous custody of the child since his original placement with them as a foster child in 1970. The adoption petition was filed December 13, 1973. The natural father opposed granting the adoption. After a lengthy hearing, the trial court denied the petition finding that the natural father had not wilfully abandoned the child or wilfully neglected to provide him with proper care and maintenance for a period of at least one year prior to the filing of the petition for adoption. We affirm.

Adoption proceedings in Missouri are governed by statute, In re E. C. N., 517 S.W.2d 709, 712 (Mo.App.1974). Pursuant to these statutes, adoption of a person under the age of 21 requires the written consent of natural parents unless one of the statutorily enumerated exceptions to consent is applicable, § 453.030(3), RSMo 1969. The exception pleaded in the present case, § 453.040, RSMo 1969, provides that:

“The consent of the adoption of a child is not required of .
(4) A parent who has for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the child or willfully neglected to provide him with proper care and maintenance. . . .”

While it is often stated that the welfare of the child is the paramount consideration in adoption proceedings, “. ‘Questions in regard to the fitness of the petitioners and the welfare of the child are not reached if abandonment is not proved.’ . ” 2 Am.Jur.2d, Adoption, § 60; In re E. C. N., supra, at 712. Consent or the proper waiver thereof under § 453.040 is jurisdictional, In re D, 408 S.W.2d 361, 365 (Mo.App.1966).

The words “wilfully abandoned” have been consistently interpreted since In re Watson’s Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, 336 (1946), to mean

“. . . first, a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection.”

Moreover, “. . . [t]he abandonment must be absolute, complete, and wilful. There must be a settled purpose to forego all parental duties and relinquish all parental claims. . . . ” In re Adoption of J., 396 S.W.2d 257, 261 (Mo.App.1965). See also In re Adoption of Rule, 435 S.W.2d 35, 40 (Mo.App.1968).

“Wilful neglect” as used in the statute has been construed to mean neglect that is “. . . intentional, deliberate, and without just cause or excuse, evincing a settled purpose to forego . . . parental duties over the period of time which the statute prescribes . . . ” In re E. C. N., supra, 517 S.W.2d at 712.

The conduct of the parent constituting wilful neglect or abandonment must have occurred during the year immediately preceding the filing of the adoption petition, see, e. g., In re K. M. B. and R. M. B., 544 S.W.2d 590 (Mo.App.) St. Louis, November 2, 1976; cf. Uniform Adoption Act § 6(a)(2) (1970). Abandonment and neglect are, however, matters of intent and evidence of a parent’s conduct, either before or after the statutory period, may be considered to determine the purpose and intent of the parent . . . ” In re Adoption of K, 417 S.W.2d 702, 709 (Mo. App.1967).

The result in this case is dictated by this court’s limited scope of review. Rule 73.01 directs the court to review the case upon both the law and the evidence, giving due regard to the trial court to judge the credibility of the witnesses. The trial court’s decree is to be sustained unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Our review of the record indicates that the decree denying the petition for adoption should be sustained as there is sufficient evidence to support the trial court’s finding that the natural father had not wilfully abandoned or wilfully neglected the child during the one year immediately preceding the filing of the adoption petition. Although respondent indicated little concern for the child from the period 1970 to July of 1972, the record does reveal some extenuating circumstances. The respondent actively initiated efforts to regain custody of the child after July of 1972. During the relevant statutory period, respondent repeatedly called the juvenile authorities regarding his son, retained an attorney to initiate legal proceedings and ultimately petitioned for a writ of habeas corpus. Many of respondent’s efforts were thwarted by the Division of Welfare, arguably with good intentions. While respondent’s conduct before the statutory period may be considered to determine his purpose and intent, it cannot be said that respondent’s sporadic interest in his son during the prior period is sufficient to show a “. . . settled purpose to forego all parental duties and relinquish all parental claims. . .” In re E. C. N., supra, 517 S.W.2d at 715.

Judgment affirmed.

STEWART and RENDLEN, JJ., concur.


author: PER CURIAM:

text:
    Leslie Allen ACHTER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10231.
    Missouri Court of Appeals, Springfield District.
    Dec. 20, 1976.
    See also 545 S.W.2d 86.

      Fred L. Scherer, Jr., Sikeston, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Movant was jury-convicted of burglary and stealing. The conviction was affirmed on appeal. State v. Achter, 512 S.W.2d 894 (Mo.App.1974). Thereafter, movant filed a motion under Rule 27.26, V.A.M.R., which was denied without evidentiary hearing. This appeal followed.

Paragraphs 8(a) and 8(b) of the 27.26 motion complained of alleged irregularities in the preliminary hearing held on the criminal charges. As the record shows that movant proceeded to trial in the circuit court without objection to the averred defects, he waived his right to object thereto and was not entitled to an evidentiary hearing of his 27.26 motion on these matters. State v. Ashe, 403 S.W.2d 589, 591[3] (Mo. 1966); Shields v. State, 491 S.W.2d 6, 10[14] (Mo.App.1973).

Further in the 27.26 motion [paragraphs 8(d), 8(h) and 8(i)], movant contends the court in the criminal case erred in denying his motions for judgment of acquittal filed at the close of the state’s evidence and after the verdict of guilty, in denying his motion for new trial, and in denying his motion to suppress evidence allegedly obtained through an illegal search and seizure. Any averred error committed by the trial court in failing to sustain the motion for judgment of acquittal at the conclusion of the state’s case was waived when movant introduced evidence of his own [State v. Lewis, 526 S.W.2d 49, 52[1] (Mo.App.1975)], and a postconviction motion under Rule 27.-26 cannot serve as a substitute for a direct appeal or be employed as a second appeal; neither may it be effective to challenge the sufficiency of all the evidence. Harrod v. State, 513 S.W.2d 471 (Mo.App.1974). Because the validity vel non of the involved search and seizure was ruled in movant’s direct appeal (State v. Achter, supra, 512 S.W.2d 894), and as the question is not cognizable in a 27.26 motion [McCrary v. State, 529 S.W.2d 467, 470-471[3-5] (Mo. App.1975)], no evidentiary hearing was required.

In paragraph 8(f) movant says his “right to freedom from cruel and unusual punishment has been violated.” As explained elsewhere in the motion, this alludes to treatment movant allegedly received in the county jail awaiting trial and to the treatment he experienced in the state penitentiary after conviction.

Rule 27.26(b)(1) states: “The provisions of this Rule may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected.” Since paragraph 8(f) does not assert any right to have the sentence vacated, set aside or corrected, it need not be considered in a Rule 27.26 proceeding. Laster v. State, 461 S.W.2d 839, 840 — 841[5] (Mo.1971).

Movant’s assertion in paragraph 8(j) of his motion that the circuit court erred in denying his motion for “mental examination under the provisions of Section 522.020 [552.020?],” did not require an evidentiary hearing for the simple reason that the transcript on appeal in the criminal case reveals that no such motion was ever made.

Paragraph 8(g) in haec verba: “Movant’s right to the effective assistance of counsel was violated.” In paragraph 9(g), movant says his counsel failed to cooperate or confer with him, made trial statements which prejudiced the judge and jury against him, and failed to raise more than one issue on direct appeal. These allegations are nothing more than naked conclusions, which are wholly devoid of facts and were properly subject to dismissal without an evidentiary hearing. Trout v. State, 523 S.W.2d 529, 533[3] (Mo.App.1975); Perry-man v. State, 506 S.W.2d 480, 482[6] (Mo. App.1974).

In paragraph 8(e) movant writes that his “right to confront the witnesses against him and to testify on his own behalf was violated at the trial of movant in Circuit Court.” The transcript on appeal in the criminal case belies these conclusions and the assertions made in paragraph 9(e) of the motion. As the court nisi could see from the transcript, movant was personally present in court throughout the criminal trial and his counsel cross-examined every witness called by the state. The transcript also shows that at the hearing conducted on movant’s motion for a new trial in the criminal case, which hearing consumed most of the court day, movant was given free rein to augment the written points contained in the new trial motion. At that hearing witnesses were produced which movant interrogated personally and through counsel. Movant also questioned his own attorney. The transcript shows, as the trial judge found and the court considering the 27.26 motion could see, that movant did not testify at his criminal trial out of fear for his life but because of trial strategy agreed to by movant and his attorney. As the facts were litigated once, there was no call to repeat the procedure in an evidentiary hearing.

The last paragraph for consideration in movant’s motion, paragraph 8(c), states: “Movant’s constitutional right to have compulsory process for obtaining witnesses to testify on his behalf was violated.” Some of what movant has to say about this naked assertion under paragraph 9(c) of his motion has been discussed in the preceding paragraph of this opinion and will not be repeated. Movant’s contention [per paragraph 9(c)] that his intended witness Joseph C. Moore was prevented from testifying because of threats made by county officials is squarely contradicted by the transcript on appeal in the criminal case. Therein, at the hearing on the motion for new trial, movant stated that “I didn’t think that I needed any other witnesses” but Kilmer Matthews. The transcript shows that Kilmer Matthews appeared and testified as a witness for movant. Moreover, denial of an evidentia-ry hearing followed a consolidated hearing on two motions to dismiss filed by the state — one directed to the instant 27.26 motion and the other directed to another 27.26 motion filed by movant relating to a separate conviction which was affirmed in State v. Achter, 521 S.W.2d 761 (Mo.App.1975). The circuit court at that consolidated hearing had before it the transcripts on appeals in both cases and could observe, as we have done, that it was in the other case, not the one subject to the instant 27.26 motion, that movant desired the testimony of Joseph C. Moore. The transcript in the other case also reveals that the court sustained mov-ant’s request for habeas corpus ad testifi-candum for Mr. Moore and that he was in fact present at that trial.

By its order, the trial court necessarily determined movant’s motion did not comply with the standards required for postconviction review. Therefore, its summary denial of the motion equaled findings and conclusions in opposition to the grounds set forth in the 27.26 motion, making formal findings of fact and conclusions of law unnecessary. Hogshooter v. State, 514 S.W.2d 109, 113[2] (Mo.App.1974).

Affirmed.

All concur.

      . The order nisi was made following a hearing on the state’s motion to dismiss movant’s pleading. As do we, the circuit court had before it the transcript on appeal in the criminal cause.


text:
    Leslie Allen ACHTER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10232.
    Missouri Court of Appeals, Springfield District.
    Dec. 20, 1976.

      Fred L. Scherer, Jr., Sikeston, for mov-ant-appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM:

Leslie Allen Achter was found guilty of burglary and stealing by a jury. That conviction was affirmed on appeal. State v. Achter, 521 S.W.2d 761 (Mo.App.1975). He then sought relief via a motion under Rule 27.26, V.A.M.R. When this was denied without evidentiary hearing by sustention of the state’s motion to dismiss, movant appealed.

In five subparagraphs of paragraph 8 of his motion, movant complains that the trial court in the criminal case erred (a) in denying his motion for continuance, (b) in denying his motion to suppress, (i) in refusing his offered instructions, (k) in giving instructions offered by the state, and (q) in denying his motion for a mental examination. In subparagraphs (7) and (m) he questions the sufficiency of the evidence at the criminal trial to support his conviction. Each of these matters was considered and rejected on direct appeal (State v. Achter, supra, 521 S.W.2d 761) and, therefore, cannot be considered in a postconviction proceeding under Rule 27.26. Sweazea v. State, 515 S.W.2d 499, 501[1] (Mo. banc 1974). By sustaining the sufficiency of the evidence on direct appeal, the court also answered movant’s claims under subpara-graphs (d), (e) and (f) of his motion that the trial court erred in denying his motions for directed verdict (actually, motion for judgment of acquittal — Rule 26.10) at the close of the state’s evidence and at the close of all the evidence, and his motion for a new trial. If there was indeed error in overruling movant’s motion for judgment of acquittal at the close of the state’s evidence, such error was waived when movant thereafter introduced evidence of his own. State v. Lewis, 526 S.W.2d 49, 52[1] (Mo.App. 1975). A Rule 27.26 motion may not substitute for a direct appeal; neither may it be employed as a second appeal, nor be used to challenge the sufficiency of all the evidence. Harrod v. State, 513 S.W.2d 471 (Mo.App.1974).

Through subparagraph (c) of his motion, movant asserts he was denied his right to have compulsory process for obtaining witnesses. In contradiction of this allegation, movant also contends he was forced to trial when some subpoenas issued on his behalf were returned “not found” or “non est.” The court nisi which denied the Rule 27.26 motion had before it the transcript on appeal in the criminal case which contains a record of the hearing held on movant’s motion for a continuance. From that record it is clear that subpoenas were issued at defendant’s request on more than one occasion for seven prospective witnesses. Three thereof were served. Testimony at the hearing made it clear that the officials charged with serving the subpoenas had, in fact, made diligent search for the missing witnesses before the subpoenas were returned non est. One unfound witness was endorsed on the information as a proposed witness for the state and all unserved witnesses were shown to be living elsewhere than the State of Missouri. The state cannot be required to be successful in subpoenaing witnesses in every instance. All that is required is that the officers expend a good faith effort to secure the service of process. Movant’s contention is without merit as was evident from the record without an evidentiary hearing. United States v. Bolden, 461 F.2d 998, 1000[2] (8th Cir. 1972).

Subparagraphs (g), (h) and (j) allude to alleged errors committed by the trial court in admitting state’s exhibits and permitting the jury to consider them. Any error in the admission of evidence is a trial error, which is not cognizable in a Rule 27.26proceeding. O’Neal v. State, 486 S.W.2d 206, 208[3] (Mo.1972); Mayo v. State, 524 S.W.2d 181, 182[3] (Mo.App.1975).

By subparagraph (n) movant says his constitutional right to freedom from cruel and unusual punishment has been violated. This refers to the treatment movant has allegedly received in the state penitentiary after conviction. However, a postcon-viction motion “may be invoked only by one in custody claiming the right to have a sentence vacated, set aside or corrected” [Rule 27.26(b)(1)], and since this subpara-graph does not claim such a right it need not be considered. Laster v. State, 461 S.W.2d 839, 840—841[5] (Mo.1971).

In subparagraph (o) movant writes that his “right to the effective assistance of counsel was violated.” This allegation and those set forth in paragraph 9(o) of the motion are mere conclusions, wholly devoid of facts and were properly dismissed without an evidentiary hearing. Trout v. State, 523 S.W.2d 529, 533[3] (Mo.App.1975); Perryman v. State, 506 S.W.2d 480, 482[6] (Mo. App.1974). In addition, movant and his attorney testified at length on this subject at the hearing held on movant’s motion for a new trial in the criminal case. This testimony litigated the matter once and was before the court that determined the Rule 27.26motion. Consequently, there was no need to repeat the procedure at an eviden-tiary hearing.

Finally, movant’s ground in subpara-graph (p): “The Circuit Court judge abused his discretion by ordering the sentences to run consecutively, and movant’s constitutional right to trial in front of an unbiased judge was violated.” In order to be entitled to an evidentiary hearing on a Rule 27.26motion, the movant must plead facts, not conclusions, and show that such factual allegations are not refuted by the record. State v. Clay, 520 S.W.2d 172, 175[1] (Mo. App.1975). Subparagraph (p) states no facts, just conclusions. The record shows the trial judge exercised his discretion in determining that the sentences imposed were to be consecutive [State v. Baker, 524 S.W.2d 122, 131[7] (Mo. banc 1975)] and that the five-year sentences imposed were within the statutory limits of §§ 560.095 and 560.110, V.A.M.S. Newman v. State, 481 S.W.2d 3, 7[3] (Mo.1972).

“The trial court’s sustention of the state’s motion to dismiss appellant’s Rule 27.26 motion is equivalent to findings of fact and conclusions of law when the basis of the ruling sufficiently appears in the record. The instant motion to vacate presented no issues requiring findings of fact and conclusions of law and was subject to summary dismissal by the trial court.” Mayo v. State, supra, 524 S.W.2d at 182[1].

The judgment is affirmed.

All concur.


author: TITUS, Judge.

text:
    Maurice J. MEKELBURG, a/k/a Moe Mekelburg, Plaintiff-Appellant, v. Jane WHITMAN and Carol Whitman, Jr., Defendants-Respondents.
    No. 10227.
    Missouri Court of Appeals, Springfield District.
    Dec. 20, 1976.

      Gene C. Thompson, Esterly & Thompson, Carthage, for plaintiff-appellant.
    No appearance for defendants-respondents.
   TITUS, Judge.

On September 10, 1974, plaintiff filed a petition in the Circuit Court of Jasper County under the Uniform Enforcement of Foreign Judgments Law. § 511.760, Y.A. M.S.; Rule 74.79, V.A.M.R. By this he sought registration of a default judgment obtained against defendants in the District Court of the City and County of Denver, Colorado, on June 7, 1974. An authenticated copy of the Colorado judgment was also filed and the Colorado judgment was registered by order of the Missouri court. Summonses were issued and served upon the judgment debtors (defendants), who answered. After a court trial of the matter, the circuit court entered an order setting aside the registration and plaintiff appealed.

Defendants, Missouri residents, owned a horse named Caballero Cody. They took him to Denver, Colorado, where he was sold at auction in defendants’ presence to plaintiff on January 14, 1974. Thereafter, plaintiff filed suit in the above designated Colorado court to rescind the horse sale and to recover damages because of defendants’ alleged misrepresentations as to Cody’s condition and soundness. Defendants were personally served with summonses in Jasper County, Missouri by a Jasper County deputy sheriff on March 22 and 25,1974. §§ 37-1 — 26 and 37 — 1—27(1), Colorado Revised Statutes. Defendants did not plead or otherwise appear in the Colorado cause and the aforementioned default judgment was rendered against them on June 7, 1974.

In the Missouri proceedings defendants admitted they had knowledge that the Colorado suit was pending “more than 30 days” prior to the entry of the default judgment, that they knew the judgment had been entered against them, and that they had not appealed from the judgment. The gist of defendants’ defense to the registration of the Colorado judgment and the basis of the order entered by the Circuit Court of Jasper County, was that the Colorado judgment had been procured by fraud. The basis for this was defendants’ asseveration and the court’s finding that Cody had been injured subsequent to the auction sale and that by reason thereof plaintiff knew he was incapable and unable to conform to a judgment of rescission by returning the horse to defendants in the same or substantially the same condition it was in on the date of the auction sale. This is predicated on defendant-husband’s testimony that after being served with process in the Colorado suit, he flew to Colorado and saw Cody on May 27, 1974. According to the testimony, at that time Cody had been run through a fence and injured making him so unsound it “would have been impossible for him to be in any kind of condition to be of any value.” Defendants made no claim that plaintiff, or anyone, had done or said anything intended to or which did prevent them from making timely appearance in the Colorado cause and presenting whatever defenses were available to them.

“Any defense . . . which under the law of this state may be asserted by the defendant in an action on the foreign judgment, may be presented [in a registration proceeding] by appropriate pleadings and the issues raised thereby shall be tried and determined as in other civil actions.” § 511.760-8; Rule 74.79(h). In actions on foreign judgments in Missouri courts, we give full faith and credit under U.S.Const., art. IV, § 1, to judgments of sister states unless there was (1) lack of jurisdiction over the subject matter, (2) failure to give due notice, or (3) fraud in the procurement or concoction of the judgment. In re Veach, 365 Mo. 776, 784-785, 287 S.W.2d 753, 759[8] (banc 1956); Nelson v. Browning, 391 S.W.2d 873, 878[9] (Mo.1965); O’Neill v. Winchester, 505 S.W.2d 135, 136[1] (Mo. App.1974); In re Barger, 365 S.W.2d 89, 94[2] (Mo.App.1963). Defendants were given due notice of the Colorado action by being served under the Colorado long-arm statute and the Colorado court had jurisdiction over the subject matter of the cause. Therefore, the sole question is whether fraud existed in the procurement or concoction of the Colorado judgment.

A judgment of a foreign court having jurisdiction of the parties and the subject matter cannot be impeached collaterally for fraud in the procurement or concoction of the judgment by asserting a defense which would have been available to defendants had they chosen to appear and defend in the foreign forum [Corning Truck & Radiator Service v. J. W. M., Inc., 542 S.W.2d 520, 526[8] (Mo.App.1976)], by showing the evidence on which it was based would have been insufficient on appeal to sustain the judgment [Scott v. Scott, 441 S.W.2d 330, 333[2] (Mo.1969); La Presto v. La Presto, 285 S.W.2d 568, 570[5] (Mo.1955)], by showing false swearing at the trial [Emerson-Brantingham Implement Co. v. Montgomery, 222 Mo.App. 12, 16, 300 S.W. 538, 539[2] (1927)], by showing the foreign judgment was inconsistent with the findings or decision on which it was based, or by showing that the default foreign judgment is at variance with the facts pleaded in the complaint or petition. Gibson v. Epps, 352 S.W.2d 45, 47[2, 3] (Mo.App.1961).

To avoid a judgment on the ground of fraud, the fraud must be extrinsic or collateral to the issues tried. Intrinsic fraud is unavailing. 46 Am.Jur.2d, Judgments, § 710, pp. 864-865, and § 826, pp. 981 — 984. “The fraud must relate to the manner in which the judgment was procured. Fraud in matters pertaining to the judgment itself is intrinsic fraud and is not a proper basis for setting aside a default judgment. Reis v. La Presto, 324 S.W.2d 648, 653-654 (Mo.1959); Head v. Ken Bender Buick Pontiac, Inc., 452 S.W.2d 596, 598 (Mo.App.1970). ‘The fraud that vitiates a judgment is a fraud which goes to its procurement, not fraud relating to the merits of the action.’ Head v. Ken Bender Buick Pontiac, Inc., supra, 598.” Human Development Corp., etc. v. Wefel, 527 S.W.2d 652, 655[4, 5] (Mo.App.1975); Young Elec., Inc. v. Susman, 533 S.W.2d 625, 629, n. 2 (Mo.App.1975).

We are clear to the view that the fraud claimed by the defendants in the instant case concerned intrinsic fraud and that the circuit court erred in setting aside the registration of the Colorado judgment. The essence of defendants’ claim of fraud was a concealment of facts from the Colorado court which would have precluded the entry of judgment had the court known of their existence. Even assuming the truth of the assertion, this would be intrinsic fraud which is insufficient to vitiate the judgment. Fulton v. I. T. & T. Corp., 528 S.W.2d 466, 469-470[5] (Mo.App.1975).

The judgment nisi is reversed and the cause is remanded with directions to the Circuit Court of Jasper County to enter an order and judgment sustaining registration of the Colorado judgment.

It is so ordered.

All concur.

      . The auctioneer would have been defendants’ agent. Coleman v. Duncan, 540 S.W.2d 935, 937[3] (Mo.App.1976).


author: STONE, Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. Ervin HACKMAN, Jr., Defendant-Respondent.
    No. 10485.
    Missouri Court of Appeals, Springfield District.
    Dec. 22, 1976.

      John C. Danforth, Atty. Gen., W. Swain Perkins, Prosecuting Atty., Alton, Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.
    R. Jack Garrett, West Plains, for defendant-respondent.
   STONE, Judge.

A Howell County jury found defendant Ervin Hackman, Jr. guilty of felonious assault without malice. On July 5, 1976, defendant filed a “motion to set aside judgment or motion for new trial.” Thereafter, Special Judge James T. Riley entered an order on September 13, 1976, which granted defendant’s motion for new trial in accordance with paragraph No. 22 of said after-trial motion which alleged that the court erred in allowing a state’s witness, a highway patrolman, to guard the jury during the trial.

The state’s right to appeal the outcome of criminal prosecutions is limited to those grounds specified in Rule 28.04. The trial court’s order granting defendant a new trial did not deal with the sufficiency of an information or an indictment [Rule 28.04(a)] and did not arrest or set aside a judgment. Rules 27.22 and 28.04(b).

The order of the circuit court is not ap-pealable and this court is without jurisdiction to entertain this appeal tendered by the state. State v. Ulmer, 351 S.W.2d 7, 10[2] (Mo.1961). Accordingly, the appeal is dismissed.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.


author: COOPER, Chief Justice.

text:
    FEDERAL MUTUAL INSURANCE COMPANY, Petitioner, v. Floyd HANKS, Executor, et al., Respondents.
    Supreme Court of Tennessee.
    Dec. 27, 1976.
    Hewitt P. Tomlin, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for petitioner.
    Lyman Ingram, Ashley, Ashley & Lawson, Dyersburg, Thomas E. Harwood, Trenton, for respondents.
   OPINION

COOPER, Chief Justice.

The issue presented in this case is whether an automobile owned by the insured but out of service being repaired at the time the automobile liability insurance policy issued, and which was later placed in service in place of the insured automobile, is within the coverage provided in the policy for a “newly acquired automobile.”

Petitioner, Federated Mutual Insurance Company, was held to be obligated to pay judgment secured by Charles D. Biggers, James D. Osborne, and W. T. Osborne against respondents, Marshall Hanks, and the Estate of German J. Hanks, deceased, as compensation for damages arising out of an automobile accident which occurred in Gibson County, Tennessee, on July 15, 1966. The Court of Appeals, with one judge dissenting, reversed and remanded the cause for a new trial. In doing so, the majority of the court held “that if, as contended by [respondents], the 1955 Chevrolet did not come into service as a vehicle of transportation before July 13, 1966, then said 1955 Chevrolet was covered as a newly acquired automobile under the policy” issued by petitioner, and remanded the case for a determination of when the 1955 Chevrolet came into service as a vehicle of transportation. The dissenting judge took the position that the issue to be decided on remand was not controlling, that the policy issued by Federated Mutual did not afford coverage of the automobile involved in the accident, and that the cause should be dismissed. This court granted certiorari to consider the question of coverage.

The material facts are not in dispute. The record shows that on January 22, 1966, respondent Marshall Hanks purchased a 1955 Chevrolet automobile for use by his father, German Hanks. On purchase, the automobile was driven immediately to a nearby repair shop, LaRue’s, to be put in “good running condition.”

In February, 1966, Marshall Hanks purchased a 1957 Chevrolet automobile for his father to use until the 1955 Chevrolet was ready for use.

On March 23, 1966, Marshall Hanks applied for and was issued an automobile liability insurance policy by Federated Mutual, covering the 1957 Chevrolet for the period of March 30, 1966, to March 30, 1967. German Hanks, his father, was listed as a driver and an additional premium was paid due to the age of Mr. Hanks. The Federated Mutual agent was not told of the 1955 Chevrolet, nor was there any information given in the policy application.

German Hanks used the 1957 Chevrolet regularly from March 23, 1966, until July 13, 1966, when it began to give trouble. German Hanks then drove the 1957 Chevrolet to LaRue’s, left it for repairs, and took in its place the 1955 Chevrolet. License plates were removed from the 1957 Chevrolet and were placed on the 1955 Chevrolet so that it could be operated.

On Friday, July 15, 1966, German Hanks, while driving the 1955 Chevrolet, was involved in an automobile accident, which led to the recovery of damages by the Osbornes and Mr. Biggers.

Three days after the accident, Marshall Hanks requested his local insurance agent to change the coverage of the Federated Mutual policy from the 1957 Chevrolet to the 1955 Chevrolet, which was done.

The provision of the insurance policy issued by Federated Mutual pertinent to a decision in this case is as follows:

“IV. Automobile defined. .
(a) Automobile — the word automobile means:
(1) Described Automobile — The motor vehicle or trailer described in this policy.
(4) Newly Acquired Automobile — an automobile ownership of which is acquired by the named insured or his spouse if a resident of the same household, if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (ii) the named insured or such spouse notifies the company within thirty days following such delivery date; but such notice is not required under coverages A, B, and division 1 of coverage C if the newly acquired automobile replaces an owned automobile covered by this policy. . . .”

The above provision, though standard, has been the subject of much litigation. With very few exceptions, the courts have held that the provision is free from ambiguity and that in order to be “newly acquired” so as to come within the policy coverage, an automobile must have been acquired after the commencement of the policy. See Farmers Insurance Exchange v. Smith, 15 Ariz.App. 42, 485 P.2d 866 (1971) and numerous cases cited therein. See also 7 Appleman, Insurance Law and Practice, § 4293, p. 92 wherein it is stated: “Nor is a vehicle newly acquired when it is previously owned by the insured and merely put back into service.”

Noting the above general rule, the majority of the Court of Appeals held that “the rule in Tennessee is that ordinarily, absent unusual circumstances, the ‘newly acquired automobile’ provisions of automobile liability insurance policies will not afford coverage for automobiles owned by the insured at the time the policy was issued.” The court then concluded that an automobile was a “newly acquired automobile” within the meaning of the policy if “it [first] came into service as a vehicle of transportation” after the policy was issued, citing Manns v. Indiana Lumbermen’s Mutual Insurance Company, 482 S.W.2d 557 (Tenn.App.1971). The Manns case does not stand for this proposition. There, the issue was whether automobiles, inoperative, worn out, and permanently withdrawn from service prior to the issuance of the policy of insurance, were “automobiles” within the meaning of the policy provision excluding coverage of after-acquired automobiles, unless all automobiles owned by the policy holder were insured by the company. The court properly held that they were not. It does not follow from this holding that ownership of an automobile is not acquired until the automobile is placed into service as a vehicle of transportation. The key to coverage of a “newly acquired automobile” is not when it comes into service as a vehicle of transportation, but when it was acquired. And as was pointed out in Mahaffey v. State Farm Mutual Automobile Insurance Co., 175 So.2d 905 (La.App.1965), at page 909:

“An automobile, although in need of a new motor, is still an automobile, as this term is ordinarily understood. Frensley did not acquire an automobile. He only put a new motor in an old automobile he already owned.
Furthermore, we think this construction is consistent with the intention of the contracting parties. The obvious purpose of the provision regarding ‘newly acquired automobiles’ is to provide automatic coverage, without even the necessity of notice to the insurer, for an automobile acquired by the named insured during the policy period to replace a vehicle covered by the policy. But this provision was not intended to cover another automobile owned by the insured at the time the policy issued and used to replace the described vehicle. To hold otherwise, in a situation like the present, would permit an assured with a number of vehicles, some in operating condition and some in need of repair, to put them in and out of service, contending that all are covered by the policies, when in fact no premiums are being paid for some of them. This may be possible under a fleet policy, but not under the separate policies.”

It is undisputed that Marshall Hanks owned the 1955 Chevrolet at the time the policy of insurance issued from Federated Mutual. This being so, the automobile does not qualify as a “newly acquired automobile” and there was no insurance coverage at the time of the accident that was the predicate of the judgments secured against respondents by the Osbornes and Mr. Big-gers.

The judgment of the Court of Appeals remanding the case for a new trial is reversed, and the case is dismissed. Costs are adjudged against respondents, Marshall Hanks and Floyd Hanks, as Executor of the Estate of German J. Hanks, deceased.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


text:
    Bennie COLE, Appellant, v. Scott A. ARNOLD, III, et al., Appellees.
    Supreme Court of Tennessee.
    Jan. 10, 1977.

      Max D. Lucas, Jr., Memphis, for appellant.
    Larry K. Scroggs, Memphis, for Medic Ambulance Service, Inc.
    Blanchard S. Tual, Memphis, for Scott A. Arnold, III, et al.
   OPINION

COOPER, Chief Justice.

Bennie Cole, a/k/a Bernie Cole, has appealed from a judgment entered in the Circuit Court of Shelby County awarding Scott A. Arnold, III, A. H. Pittman, Allen Gary, and Louis Bianci compensatory damages.

The case was tried on a stipulation of facts, none of which go to the merits. According to the record, appellees filed an action in the General Sessions Court of Shelby County against appellant and Medic Ambulance Service, Inc. We gather from the summons that Mr. Cole’s vehicle and a vehicle owned by Medic were in collision in the intersection of Poplar and Mendenhall Streets and that the Cole vehicle thereafter struck a building owned by appellees. Without averring more details, appellees charged that their building was damaged by the “negligence [of] either Bennie Cole and/or Medic Ambulance Service, Inc.”

Neither defendant offered evidence on trial of the case in the sessions court, with the result that a judgment was entered in favor of the appellees against Mr. Cole for $961.35. Mr. Cole appealed both the judgment in favor of the appellees and the judgment exonerating Medic Ambulance Service, Inc. from liability.

The parties further stipulated that “subsequent to the appeal of this cause to the Circuit Court, a suit by Bennie Cole against Medic Ambulance Service, Inc. for personal injuries and property damage arising out of the same occurrence as this cause, was tried in the Circuit Court of Shelby County, Tennessee . . . resulting in a general verdict for the defendant . . . .”

The trial judge held that Bennie Cole had no legal right to appeal the sessions court judgment in favor of Medic Ambulance Service, Inc. and dismissed the action against Medic.

It is true that prior to the enactment of the Uniform Contribution Among Tort-fea-sors Act of 1968, now codified as T.C.A. 23-3101 et seq., the appellate courts of this state consistently held that a defendant “cannot complain of the dismissal of its co-defendant, since it was not aggrieved nor its liability affected thereby. This [was] true whether [the defendant] was one of the joint tort-feasors, as charged, or was the sole wrongdoer, as implied by the jury’s verdict acquitting its co-defendant.” Yellow Cab Company of Nashville v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17 (1958). See also McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956), and Howard v. Haven, 198 Tenn. 572, 281 S.W.2d 480 (1955).

However, with the passage of the Uniform Contribution Among Tort-feasors Act, the basis for the holding of the Pewitt and similar cases ceased to exist. The Act changed substantive law, giving a defendant the right to contribution from a co-defendant whose negligence contributed to the plaintiff’s injury. See Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971). Having the right to contribution from a co-defendant who is a joint tort-fea-sor, the defendant’s liability would be affected by the dismissal of charges against his co-defendant and the defendant therefore qualified as an aggrieved party having the right to appeal the decision. See Holloway v. Wright, 21 Md.App.615, 320 A.2d 572 (1974); Williams v. Dawidowicz, 209 Md. 77, 120 A.2d 399 (1956); Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295 (1936). It follows that the trial judge was in error in dismissing the action against Medic on appeal from the judgment entered in the General Sessions Court of Shelby County.

The trial judge also reasoned from the above facts that:

“[W]hile the verdict in favor of the defendant, Medic Ambulance Service, Inc., in the [circuit court] suit against it by Bennie Cole, did not establish whether Medic Ambulance Service, Inc. was not guilty of negligence, [it] did establish that Bennie Cole was guilty of negligence, so that, the damages being stipulated, plaintiffs should have judgment against Bennie Cole . . . .”

Appellant insists this was error. We agree.

A comprehensive discussion of the doctrine of collateral estoppel or estoppel by judgment is set forth in Booth v. Kirk, 53 Tenn.App. 139, 381 S.W.2d 312 (1964), where the court held that a judgment for a plaintiff is not conclusive, as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident, by a different plaintiff against the same defendant. In doing so, the court opted for the general rule that the doctrine of collateral estoppel or estoppel by judgment, which is an extension of the principle of res judicata, is applicable only where it affirmatively appears that the issue involved in the case under consideration has already been litigated in a prior suit between the same parties. See 23 A.L.R.2d 717 and 133 A.L.R. 185. The wisdom of this rule is evident in this case as the general verdict in favor of Medic in the tort action brought by appellant was not necessarily predicated upon a finding of negligence on the part of appellant. It is just as likely to have been predicated upon a finding that the appellant, as plaintiff in the circuit court action, failed to carry the burden of proof, which would not make appellant liable to appellees in the sessions court case. Cf. Hammons v. Walker Hauling Co., 196 Tenn. 26, 263 S.W.2d 753 (1953).

The judgment of the trial court is reversed, and the case is remanded to the Circuit Court of Shelby County for a trial on all issues. Costs of the appeal are adjudged one-half against Medic Ambulance Service, Inc. and one-half against Scott Arnold, III, A. H. Pittman, Allen Gary, and Louis Bianci. Costs in the trial court will await the outcome of the trial on remand.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: FONES, Justice.

text:
    CITY OF MEMPHIS and Memphis Light, Gas and Water Division, Petitioners, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL 1288, et al., Respondents.
    Supreme Court of Tennessee, Western Division.
    Dec. 31, 1976.

      Ross B. Clark, II, Frierson M. Graves, Jr., Memphis, for petitioners.
    Lucius E. Burch, Jr., Burch, Porter & Johnson, Saul C. Belz, Burch, Porter & Johnson, Memphis, for respondents.
   OPINION

FONES, Justice.

This suit was brought by two employees of the Memphis Light, Gas and Water Division seeking a declaratory judgment of the constitutionality of a Memphis Charter provision requiring all personnel solely employed by the City of Memphis to reside within the territorial limits of Shelby County.

The Chancellor held that the charter provision was constitutional and dismissed the suit. The Court of Appeals reversed, holding that the provision violated the equal protection clause of the Fourteenth Amendment to the United States Constitution and Section 8, Article 1 of the Tennessee Constitution, because the term “solely employed” was unreasonably discriminatory, and therefore did not reach the issue of validity of using the boundary lines of Shelby County as a residential requirement for the class solely employed by the City of Memphis.

Defendants, City of Memphis and Memphis Light, Gas and Water Division, assign two (2) errors to the Court of Appeals decision. They first maintain that the Court erred in finding the residential provision for those personnel employed solely by the City was an unreasonable and arbitrary exercise of class action. They contend that resort to certain Private Acts demonstrates the classification of “employees employed solely” by the City of Memphis is meant to distinguish those from ones employed jointly by Shelby County and the City. This distinction they argue is valid. They further cite as error the Court of Appeals’ failure to reach and decide the issue of whether or not the territorial limits of Shelby County may by imposed as a residential requirement upon employees of the City of Memphis.

The questioned provision reads as follows:

“190. Residence requirements of persons employed solely by city. — Hereafter all persons employed solely by the City of Memphis or any of its departments, bureaus or commissions, shall be required to live and maintain a residence within the boundaries of the county of Shelby, as now defined or as may be hereafter defined, except that the board of commissioners of the City of Memphis may exempt therefrom employees of any division, department or bureau whose duties as employees of such departments, bureaus or commissions require them to perform services for the city outside the territorial limits thereof.”

A residential requirement for City employees was first made part of the Charter of the City of Memphis by an amendment to the Charter passed in Chapter 44 of the Private Acts of 1941. The 1941 provision required employees to live within the city limits. The present provision amended Chapter 44 of the Private Acts of 1941 to extend the permissible residency of employees to Shelby County. Chapter 248, Private Acts, 1963.

Both plaintiffs reside outside the territorial limits of Shelby County. At trial they presented proof to demonstrate that they were as loyal, efficient and available for emergencies as employees living within Shelby County. Plaintiffs presented no proof that employees not solely employed by the City, i. e. those having any second employer, were not required to live within Shelby County. This contention was first made before the Court of Appeals.

Defendants’ proof at trial consisted of testimony concerning reasons for requiring employees to live within Shelby County. Mr. Richard Barnes, the City’s Personnel Director testified that the residential requirements would assure availability, contribute financially to the community and instill pride. Defendants did not present evidence on the issue of personnel solely employed by the City vis a vis those employed by the City and another employer having to maintain a residence within the County. However, Mr. Barnes did testify that the requirement was uniformly applied to all individuals employed by the City.

I

The holding of the Court of Appeals necessarily contemplates that there are only two (2) classes of employees of the City of Memphis, relevant to the issue here, those who are employed solely by the City and those who work for the City and also are employed by any other employer. Defendants’ position contemplates that the only purpose and intent of the use of the word “solely” was to distinguish joint employees of the City and County from those employed only by the City, and further that it was done to avoid conflict with a provision in the Private Acts of 1933, Chapter 413, Section 4, authorizing Shelby County and all municipalities within Shelby County to perform the functions of joint city-county agencies by and through employees, without the necessity of said employees’ residency within the corporate limits of the municipality. Further implicit in defendants’ position is the total lack of concern or intent to, in any way, deal with employees who may have a second employer, other than Shelby County. Such a concern would obviously be addressed in an entirely different manner, either expressly prohibiting same or prescribing restrictions thereon. In short, there is no reasonable relationship, as a practical or a legal consideration, between any aspect of the broad problem of other employment by employees of the City and a territorial restriction on residence.

If we may properly consider defendants’ interpretation of the Act it is apparent that there are two classes of employees not solely employed by the City: (1) those jointly employed by City-County agencies and (2) those holding a second employment unrelated to the County.

Plaintiff insists that since the record contains no factual evidence that Memphis and Shelby County have joint employees and that the argument based thereon is raised for the first time in this Court that we are precluded from giving it consideration. From our examination of the record it appears that in the trial court both parties confined their attention to the validity of the use of Shelby County as a proper residential boundary. The Chancellor upheld the constitutionality of the Act without discussion of the issues. The Court of Appeals having predicated its decision entirely upon its construction of the language of the act, “solely employed,” it would be manifestly unjust to preclude defendants from taking issue with that ruling on any grounds which the rules of procedural and substantive law permit. Also, we have repeatedly held that it is incumbent upon the Courts to apply the controlling law, whether or not cited or relied upon by either party. State v. Collins, 528 S.W.2d 814 (Tenn.1975); Simmons v. State ex rel. Smith, 503 S.W.2d 103 (Tenn.1973); cf. Smith v. Norris, 218 Tenn. 329, 403 S.W.2d 307 (1966).

Before we consider the position of defendants on its merits we must determine the propriety of taking judicial notice of the private acts of the legislature and of assuming the existence of a class of employees working for joint agencies of Memphis and Shelby County.

This Court can and has taken judicial notice of private acts of the legislature dealing with City or County matters. State v. City of Nashville, 208 Tenn. 290, 345 S.W.2d 874 (1961); Kyle et al. v. Marcom, 181 Tenn. 57, 178 S.W.2d 618 (1943). In Thorton v. Carrier, 43 Tenn.App. 615, 311 S.W.2d 208 (1957), the Court of Appeals took judicial notice of Chapter 500, Private Acts of 1947, which established a commission known as the Memphis and Shelby County Harbor and Port Commission.

We conclude that we may take judicial notice of the private acts of the legislature that authorize joint city-county agencies in Shelby County.

Private Acts of 1933, Chapter 413, provides, in part:

“Section 1. Be it enacted by the General Assembly of the State of Tennessee, That Shelby County and/or all municipal corporations and/or other local governmental agencies located in said County be, and are hereby authorized and empowered to consolidate or operate jointly any or all governmental or corporate activities or functions of said County and/or municipal corporations and/or other local governmental agencies located therein which may now or hereafter be authorized to operate or conduct, which may be conveniently or advantageously consolidated or operated jointly.
Sec. 4. Be it further enacted, That any and all contracts authorized by the provisions of this Act may be executed in such form and with such provisions, conditions and limitations, and for such considerations, as may be acceptable to the contracting parties; and it is hereby expressly provided that any such contracts may authorize the carrying on within the corporate limits of any such municipal corporation of any governmental or corporate activity or function provided for under the terms of any such contract by or through any agents, employees or other character of agency therein agreed on, whether or not they reside within the corporate limits of such municipal corporation.”

Chapter 421 of the Private Acts of 1917 was an amendment to the Charter of the City of Memphis creating a joint commission to oversee the maintenance and operation of an auditorium and public market place.

Defendants’ brief lists an additional six joint agencies said to have been established pursuant to the authority of the 1933 Act. We cannot take judicial notice of the establishment of these agencies.

However, this Court has expressly held that when a constitutional attack is made upon a police power classification, as contravening Article 1, Section 8 and Article 11, Section 8, Constitution of Tennessee and the Fourteenth Amendment, Section 1 to the Federal Constitution, any state of facts that can be reasonably conceived that would sustain the legislation will be assumed to have existed when the law was enacted. Arutanoff v. Metropolitan Government, 223 Tenn. 535, 448 S.W.2d 408 (1969); Motlow v. State, 125 Tenn. 547, 145 S.W. 177 (1911). The rule is equally applicable to the classification under constitutional attack in this case. The United States Supreme Court invoked the same rule in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970):

“ ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ (citation omitted) ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ ” (Emphasis added). 397 U.S. at 485, 90 S.Ct. at 1161.

Since the 1917 Act created a joint agency and the 1933 Act authorized the creation of others, we are of the opinion that we may reasonably assume that Shelby County and Memphis have persons jointly employed in the operation of joint agencies, and that the intent of the legislature in using the word “solely” was to distinguish joint employees of Memphis and Shelby County from those solely employed by the City.

Any residential restrictions of joint employees of Shelby County and Memphis would be subject to the 1933 Act and the express terms thereof would be covered in the contract between the City and County creating the particular joint agency. It follows that in an act amending the Charter of the City of Memphis, on the subject of residential requirements for city employees, it was appropriate to exclude joint City-County employees, and that exclusion has a rational basis, that is constitutionally sound.

II

The United States Supreme Court has created a two tier system for evaluating classifications by state legislatures. If the classifications do not interfere with the exercise of a fundamental right or operate to the peculiar disadvantage of suspect classes there must simply be a rational basis for the legislation. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562,49 L.Ed.2d 520 (1976). However, if it would infringe on a fundamental right or class then the classification must withstand strict scrutiny. Ibid. The question of bona fide residential requirements for governmental personnel falls within the rational basis category. McCarthy v. Philadelphia Civil Serv. Comm., 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Massachusetts Bd. of Retirement v. Murgia, supra.

In McCarthy, the Court was dealing with a Philadelphia ordinance which required employees to live within the city limits. The employees’ contention was that the ordinance interfered with the “fundamental right to travel interstate” as defined in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1960); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). The Court pointed out that every one of those cited cases involved requirement of residence for at least one year before obtaining fundamental rights. They quickly contrasted the right to vote (Dunn) and receive welfare benefits (Shapiro and Memorial Hospital) with a “constitutional right to be employed by the city of Philadelphia while living elsewhere.” 424 U.S. at 646, 96 S.Ct. at 1155. The Court found no support for such a constitutional right. Id. Furthermore, in Murgia the Supreme Court pointed out, “This Court’s decisions give no support to the proposition that a right of governmental employment per se is fundamental.” 427 U.S. at 313, 96 S.Ct. at 2566, 49 L.Ed. 2d at 524.

We find that the charter provision which requires residence within Shelby County for employees of the City of Memphis is valid and constitutional under the Fourteenth Amendment and Article 11, Section 8. A county residential requirement insures proximity to employee’s job in emergencies. County taxes and other revenues are shared by both the County and the City of Memphis and the City reaps general economic benefits flowing from local expenditure of County resident’s salaries. Furthermore, pride in one’s place of employment and a feeling of greater personal stake in the city’s progress can be expected from employees residing in the county wherein the city lies than from those who reside beyond the limits of the county.

Plaintiffs argue that they are as close to their jobs across county and state lines as some employees living within the county. Although’that may be true, the City is allowed some leeway in devising reasonable residential requirements. The mere fact that in 1963 the residential boundaries were extended from the City of Memphis to Shelby County demonstrates an attempt to accommodate employees. As the Supreme Court noted in Murgia, supra:

“. . . the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary, (citation omitted) Such action by a legislature is presumed to be valid.” 427 U.S. at 314, 96 S.Ct. at 2567, 49 L.Ed.2d at 525.

We find a rational basis for the City of Memphis requiring its employees to live within the boundaries of Shelby County. Chapter 248, Private Acts of 1963 is a constitutional enactment and excludes no employees of the City of Memphis, except those employed jointly with Shelby County.

The judgment of the Court of Appeals is reversed. In consideration of the lack of quality draftsmanship of the Act in question and other equitable considerations, the costs are assessed against the City of Memphis.

COOPER, C. J., and HENRY, BROCK and HARBISON, JJ., concur.

      . This case was originally brought as a class action as well as on behalf of the two named plaintiffs. The Chancellor dismissed the class action aspect because the notice requirements of Rule 23, T.R.C.P. had not been complied with.

      . McCarthy was a per curiam decision by the Court affirming the decision by the Commonwealth Court of Pennsylvania. 19 Pa.Cmwlth. 383, 339 A.2d 634 (1975). The Pennsylvania Court’s decision to uphold the Philadelphia residency requirement was based to a great extent on an opinion by the United States Fifth Circuit Court of Appeals, Wright v. City of Jackson, Mississippi, 506 F.2d 900 (1975). In the Wright case the Court first held that city employee residential classifications were to be measured by the rational basis test and then set forth the following rational purposes for such requirements:
      “. . the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city’s conditions and by a feeling of greater personal stake in the city’s progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees’ salaries.” 506 F.2d at 903, 904 [Citing Ector v. City of Torrance, 10 Cal.3d 129, 109 Cal.Rptr. 849, at 852, 514 P.2d 433 at 436 (1973)].