author: McDONALD, Chief Justice.

text:
    Ethel MOORE, Appellant, v. Graceil Proctor DOUGLAS, Appellee.
    No. 6116.
    Court of Civil Appeals of Texas, Waco.
    Nov. 8, 1979.
    Rehearing Denied Nov. 29, 1979.

      Joe E. Griffith, Crockett, for appellant.
    Joe B. Phillips, Aloysius M. Wiekliff, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an heirship proceeding arising from an allegation of adoption by estoppel. At stake is the estate of George and Addie Proctor, deceased. Appellee is the allegedly adoptive daughter of the Proctors; appellant and other defendants in the trial court are relatives of the Proctors.

Trial was to the court which rendered judgment finding appellee “Graced Proctor Douglas was adopted by the deceased Addie Proctor and George Proctor, deceased, said adoption being adoption by estoppel”; and decreeing appellee the sole and only heir of Addie and George Proctor, deceased, and entitled to 100% interest in their estates.

Mrs. Ethel Moore, a niece of George Proctor, appeals on 4 points which we summarize as 2 principal contentions.

Contention 1 asserts the trial court erred in admitting over appellant’s objection evidence of any alleged contract to adopt ap-pellee by George and Addie Proctor for the reason there were no pleadings to support admission of such evidence.

Appellee’s pleading alleged:

“That there were during the lifetime of Addie Proctor and George Proctor, deceased, no children or natural issue born to them. However, your petitioner, Graced Proctor Douglas, was adopted by the deceased, Addie Proctor and George Proctor, deceased, said adoption being by es-toppel. The petitioner began to live with the deceased and her husband George Proctor, deceased, on approximately her third birthday and continued to live with the deceased and her husband during her entire lifetime up to her completing her college education in Crockett, Texas, at approximately the age of 21 years. During the 18 years that she lived with the deceased and her husband, George Proctor, deceased, she considered them her mother and father, and was cared for by them as their own daughter, and was recognized by them as their daughter, and was known in the community as the daughter of Addie and George Proctor. The said petitioner Graced Proctor Douglas was for all intents and purposes the daughter of Addie Proctor, deceased, and her husband George Proctor, deceased, as if she had been born to them as their natural daughter. George and Addie Proctor paid all the school expenses for Graced Proctor Douglas”.

No exceptions were levelled at appellee’s pleadings and we hold that same are ample to support the admission of evidence of contract or agreement by Addie and George Proctor to adopt appellee. In the absence of special exceptions the petition will be liberally construed in the pleader’s favor and in support of the judgment. Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513; Tolson v. Carroll, (Waco, Tex.Civ.App.) NWH, 313 S.W.2d 131; Lowther v. Lowther, (Waco, Tex.Civ.App.) NRE, 578 S.W.2d 560; Rule 90 TRCP. And insufficiency of a pleading cannot be raised for the first time on appeal. Sherman v. Provident American Ins. Co., Tex., 421 S.W.2d 652; Lewter v. Dallas County, (Waco, Tex.Civ.App.) NRE, 525 S.W.2d 885.

Moreover, appellee’s pleadings give fair and adequate notice to the adversary and are sufficient for this reason. Stone v. Lawyers Title Ins. Corp., Tex., 554 S.W.2d 183; K. W. S. Manufacturing Co., Inc. v. McMahon, (Waco, Tex.Civ.App.) NRE, 565 S.W.2d 368.

Contention 2 asserts the trial court erred in declaring appellee to be the equitably adopted daughter of George and Addie Proctor because appellee failed to prove a contract to adopt and reliance thereon.

Lula Thomas, a sister of Addie Proctor testified she knew George and Addie Proctor 50 years or more; lived near them; visited them frequently; that after 1936 Graceil Proctor was staying in the home of George and Addie Proctor; that Addie and George said “Graceil’s mother and daddy let her have her and [we] was going to adopt her”; George and Addie had no other children; she called them mama and daddy and they called her daughter. She started to school at age 6 under the name of Graceil Proctor; George and Addie bought her food, clothing and school supplies and carried her to school; and sent her to college after she finished high school and paid for her college education; when Addie was old and got down and sick and disabled Graceil took care of her; when George got sick and down Graceil paid George Johnson, a nephew, to look after him.

Willis Baker, a preacher, testified he had known Addie and George Proctor all his life, that they took Graceil with them wherever they went; and said Graceil was their daughter; they called her daughter and she called them mother and dad; they were all at church together many times; they introduced Graceil as their daughter; put her through school and college; that when Addie became ill Graceil took her to Houston and looked after her; that when George became disabled Graceil cared for him; that until the instant case came up he thought Graceil was their natural daughter.

J. G. Oliver, a retired school principal, testified he knew Mr. and Mrs. George Proctor; that they called Graceil daughter and she called them daddy and mother; he identified report cards of Graceil Proctor; said the Proctors attended her graduation; that the Proctors sent her on to college, he making out her transcript; that he didn’t know she was not their natural child; that George Proctor was close with his money, but was very liberal with Graceil.

Mrs. Otis Brewer, testified she had the store and post office; had known Addie and George all her life; they visited the store and post office twice a week; and brought Graceil with them; that they referred to Graceil as their little girl — their daughter; that Graceil referred to them as mother and daddy; that Graceil went through high school and college and Addie and George Proctor paid for it; that she made out money orders many times for George and Addie to send Graceil money for clothes, tuition, school supplies when she was in college; that Graceil cared for Addie when she was disabled and in poor health; and Graceil and George Johnson cared for George when he became disabled.

George Johnson testified he had known Addie and George Proctor all of his life and had known Graced since she was born; that she came to live with the Proctors when she was 3; that he is Graceil’s uncle; that he carried Graceil to Addie and George’s home from her parents; that her parents said “take Graceil to Aunt Addie’s” * * “she wanted her for her daughter” * * * “that Addie and George Proctor wanted Graceil as their child”; that Graceil’s [stepfather] said “take the child over to the Proctors as their child”; that the Proctors received her and “grabbed the girl in their arms and said this is my child”; that she stayed with them until their death; that Addie died in Graceil’s house; that Graceil claimed Addie and George were her parents; that the Proctors paid her way through school and college; and claimed to the neighbors and to everybody that Graceil was their child; that it was accepted in the community Graceil was their child; and nobody ever questioned that Graceil was their child until the instant case; that Graceil took care of George and Addie when they became old and disabled, cooked for them, “beared lots of expenses for them; that Addie died in Graceil’s house”.

Lillian Cregg testified she had known George and Addie Proctor 37 years; lived near them and visited in their home; that Graceil was there and they called her daughter and she called them mama and papa; they brought her to church; introduced her as their daughter; that the whole community understood Graceil was their daughter — “their adopted daughter”; that they sent her to school and college; that when they became disabled Graceil brought food, clothes and paid for transportation to the doctor — “whatever was necessary to be done”.

Robert Gilmore, á neighbor, testified he had known the Proctors since 1914; that he visited in their home; that they visited in his home; that Graced was in their home; they called her daughter; she called them mother and daddy; that they took Graced to church; put her through school and college; and paid for “everything”; that she waited on Addie and George when they got old; worked herself down; took Addie into her home; and paid George Johnson to look after George; that George depended on and leaned heavily on Graced.

Herbert Phillips, husband of Maggie Phillips, testified he had known Addie and George Proctor since he was big enough to know; that he was stepfather of Graced and his wife Maggie was mother of Graced; that the Proctors asked he and Maggie to give Graced to them; that he and Maggie talked it over and “we decided to give Graced to Mr. and Mrs. Proctor”; to give her permanently to them; gave her up forever; “for them their child to raise”; that he had 5 or 6 conversations with the Proctors “about whether they were to adopt the chdd” * *; that “they said they were going to adopt the child”; that Graced went by the name of Proctor; never by the name of Phillips; that Mrs. Proctor was his wife’s aunt; that “[George] wanted the child because he didn’t have no child”; and that “we gave Graced over to George and Addie Proctor”; that “we had an agreement”.

Graced Proctor Douglas testified she was bom in 1933; that Mr. and Mrs. George Proctor raised her from a little girl about 3 years old; that they paid all her bills; that she graduated from high school and college as Graced Proctor; that she gave them the love and affection a child gives a parent; that she relied on the daughter relationship; relied on the fact she believed she was the Proctors’ daughter in giving them services and treating them with love and affection; that they told her “they wanted to adopt her as their daughter”; that she cared for Addie in her last illness; washed, ironed, cooked, cleaned and cared for her as she would a baby; that she took her to Houston to live in her home; that she wanted to take George but he wouldn’t go; that she paid George Johnson to take care of him; that she relied on the daughter relationship she had with them in rendering services to them.

We think there is evidence to support the trial court’s implied finding of an agreement on the part of Addie and George Proctor to adopt Graced; and that there is evidence that Graced relied on such agreement, lived with them and accorded them the natural love and affection and services a child would toward her natural parent. There is evidence of an agreement to adopt and the establishment of a family relationship pursuant thereto. Malone v. Dixon, (Eastland, Tex.Civ.App.) NRE, 410 S.W.2d 278; Ramsay v. Lane, (1 Houston, Tex.Civ.App.) NRE, 507 S.W.2d 905; Deveroex v. Nelson, (14 Houston, Tex.Civ.App.) 517 S.W.2d 658; affirmed Tex., 529 S.W.2d 510; Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972.

All appellant’s points are overruled.

AFFIRMED.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Christine SIMS, Appellant, v. Elrie W. SIMS, Appellee.
    No. 18049.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 8, 1979.

      Christine Sims, pro se.
    Oldham & Holt, and Judd Holt, Wichita Falls, for appellee.
   OPINION

MASSEY, Chief Justice.

Suit below was instituted by Elrie W. Sims as a natural father of two designated minor children to have entry of a decree legitimizing them as his own by provisions of Tex. Family Code Ann. Ch. 13, “Voluntary Legitimation” (1975). Oddly, Christine Sims, the natural mother, presented herself in opposition. Petitioner had alleged that said respondent was furthermore the temporary managing conservator of the children pursuant to some prior court order. Respondent filed her general denial and plea that the natural father take nothing by his suit.

The trial court appointed one Don Snod-grass to be attorney ad litem to represent the children.

Trial was to a jury, following which there was a verdict comprised of an answer to a single question submitted. The finding was that it would be to the best interest of the two minors that they be designated as the legitimate children of petitioner, their natural father who had prayed therefor.

Based on that verdict the judgment of the court was one which declared the minors to be the legitimate children of the petitioner. This was the sole relief by judgment. Nothing was provided therein relative to that portion of the petitioner’s prayer which read petitioner further requests “that appropriate orders be made for con-servatorship and support of the children,

The respondent appealed.

We dismiss the appeal.

Ordinarily, this court’s order would have been one which dismissed the appeal for want of prosecution. This would be because of the fact that respondent/appellant filed no brief in this court after her appeal was perfected, with the transcript filed. Considerable time had elapsed prior to the date this court had set the case on appeal for hearing. The respondent/appellant did not make appearance despite appropriate notice.

However, we deem it our responsibility, in a case where minors or other persons under legal disability to act for themselves are parties at interest, to take into consideration the best interest of such persons. In this case the trial court had appointed an attorney ad litem to represent these interests. Presumably there was continuation of such representation on appeal as necessary to the protection of his clients’ interest. An attorney appointed or assigned to represent an indigent, etc., person has a duty to act and to diligently protect all the rights of such person. 7 C.J.S. p. 837 “Attorney and Client” § 54, “Assignment as Counsel by Court” (1937).

Thus the presumption in the instant appeal is that the minor children, not having become appellants, were deemed by the attorney ad litem to have secured an advantage by the judgment of the trial court, or in any event not to have suffered a detriment warranting an appeal in their behalf.

Furthermore, by public policy there should be the presumption that the children benefited by having been legitimized by the judgment.

Furthermore, we presume no prejudice by the want of adjudication relative to the children’s support and maintenance, etc.; the “doors to the courthouse still being open to them” in the event developments indicate necessity of any further litigious proceedings for their protection. Therefore, it appears they would not suffer as the consequence of a dismissal of the appeal for want of its prosecution.

The appeal is dismissed.


author: GUITTARD, Chief Justice.

text:
    Mary K. BAIR, Individually and as Independent Executrix of the Estate of Lester L. Bair, Deceased, Appellant, v. VOELKER REALTY CO., INC., Appellee.
    No. 20075.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 14, 1979.

      Kenneth D. Fuller, Frances McWilliams Harris, Garland, for appellant.
    Daniel J. Sheehan, Jr., Dallas, for appel-lee.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   GUITTARD, Chief Justice.

This suit for money alleged to be due on a written contract was tried without a jury. The court denied recovery, and plaintiff appeals. The only question is construction of the contract. We agree with the trial court that the contract creates a condition precedent that was not satisfied. Consequently, we affirm.

Before signing the contract in question, plaintiff Mary Bair and her husband, now deceased, had conveyed a tract of land to defendant Voelker Realty Company. In part payment, Voelker signed a note dated December 15, 1971, for $225,106.90, secured by a deed of trust. The note provided that Voelker should have no personal liability on the note and that in the event of non-payment the holder should look only to the property described in the deed of trust.

The contract in question, signed December 20, 1973, by L. L. Bair and Mary Bair, describes the property covered by the deed of trust and designates Voelker Realty Company as “Owner.” It recites that the property has on it “one gasoline station and one brick retail building which are now uninhabitable, hazardous and dangerous” and that the “Owner” desires to tear this down. The operative provision of the contract is as follows:

NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned, L. L. Bair, does hereby consent to the Owner tearing down and removing the gasoline station and brick retail building now situated on the Property. In the event that the undersigned becomes the Owner of the Property as a result of foreclosure under the Deed of Trust, then the undersigned shall be entitled to recover from Owner the total sum of $25,000.00 as replacement damages in full.

After this contract was signed, Voelker removed the buildings from the property. Later, in December 1976, Voelker Realty Company executed and mailed to Mary Bair a general warranty deed reconveying the property to her. At that time the note was not in default, although an interest payment was due within a few days. Mary Bair accepted the deed and filed it for record. She then brought suit against Voelker for the $25,000 provided in the contract, alleging that Voelker had breached its obligation to pay that sum as compensation for destruction of the buildings. On trial without a jury, the court denied recovery, but made no findings of fact or conclusions of law. Evidently the court concluded that the contract did not require Voelker to pay the $25,000 under the circumstances of this case.

The contract does not obligate Voelker to pay $25,000 for destruction of the buildings alone. It requires such payment only on the occurrence of a specified event, namely, “[i]n the event that the undersigned becomes the Owner of the property as a result of foreclosure under the Deed of Trust.” The crucial inquiry is whether that event occurred. Plaintiff Bair contends that the voluntary conveyance of the property to her was legally equivalent to a “foreclosure under the deed of trust,” and, therefore, should have the same consequences. She argues that the term “foreclosure” is ambiguous at best, since it may refer to any method of terminating Voelker⅛ interest and restoring title to her, whether by trustee’s sale, judicial foreclosure, or voluntary conveyance, and that the ambiguity should be resolved against Voelker because it selected the language. Voelker responds that “foreclosure under the deed of trust” can only mean a trustee’s sale as provided by the deed of trust, and, since none occurred, no money is due.

We cannot agree that the voluntary re-conveyance was a “foreclosure under the deed of trust.” No foreclosure could then have been effective because the note was not in default. Although a default may have been imminent, the deed of trust does not authorize foreclosure for a prospective default. Moreover, title became vested in Bair under a general warranty deed, rather than a trustee’s deed, thus avoiding any uncertainty and possible litigation that a trustee’s sale may have raised. Bair need not have accepted the deed. She could have returned it to Voelker, waited for a default, and then instructed her trustee to sell. Notice of such a sale would have had to be posted, and other prospective purchasers would have had an opportunity to bid. She chose not to follow that course, but rather to accept the deed with its immediate, unquestioned conveyance of title. Consequently, she is not in a position to assert that she became the owner as a result of a “foreclosure under the deed of trust.”

Plaintiff Bair insists that her argument in this respect is supported by the recent decision in Jones v. Ford, 583 S.W.2d 821, 823 (Tex.Civ.App.—El Paso 1979, writ ref’d n. r. e.). That case did not involve the meaning of contractual language equivalent to “foreclosure under the deed of trust.” The court merely held that a conveyance by a mortgagor to the note holder had the effect of a foreclosure of the deed of trust lien as between the note holder and third parties, who claimed under an execution sale. We do not know what the decision would have been if the note had not been in default and the conveyance had been a deed with general warranty. Consequently, we do not regard that opinion as persuasive here.

Alternatively, Bair argues that if “foreclosure under the deed of trust” is interpreted as limited to a trustee’s sale, the trial court erred in holding that such a foreclosure is a condition precedent to defendant’s liability for the $25,000. In support of this argument, she cites authorities holding that conditions precedent are not favored. We find no ambiguity in the contract that would permit us to apply this rule. A condition precedent is an event that must happen or be performed before a right can accrue to enforce an obligation, and no particular language is required if the intent to create a condition is clear. Burns v. American Nat’l Ins. Co., 280 S.W. 762, 765 (Tex.Comm’n App.1926, judgmt. adopted); Cozby v. Edwards, 203 S.W.2d 569, 574 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n. r. e.); Corbin, CONTRACTS, § 639 (1960). In this contract the phrase “[i]n the event that” is particularly appropriate to the creation of a condition, since it limits the obligation to pay to the occurrence of the event specified. Hennigan v. Chargers Football Co., 431 F.2d 308, 313 (5th Cir. 1970); Partlow v. Matthews, 43 Wash.2d 398, 261 P.2d 394, 398-99 (1953); and see City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 519 (Tex.1968). Unquestionably, this phrase creates a condition to the extent that Bair’s resumption of ownership must occur before the obligation arises to compensate Bair for destruction of the building. The language concerning foreclosure which follows immediately in the same clause is part of the same condition. To sustain Bair’s contention would be to rewrite the contract, which we cannot properly do, particularly a formal contract like this which bears evidence that the parties have carefully chosen its language to express their exact intentions. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 624 (1950).

Plaintiff Bair contends further that if a foreclosure by trustee’s sale is a condition precedent to Voelker’s liability for the $25,-000, Voelker made its performance impossible by executing and delivering the recon-veyance. In a similar vein, she argues that the trial court’s construction of the contract enables Voelker to cause a forfeiture of her claim for compensation for destruction of the buildings. Neither of those contentions is tenable because tender of the deed could not, in itself, have prejudiced Bair’s rights. Her acceptance was necessary to give it effect as a conveyance. See, e. g., Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209, 211 (1947); Robert Burns Concrete Contractors, Inc. v. Norman, 561 S.W.2d 614, 618 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.); Young v. Jewish Welfare Federation, 371 S.W.2d 767, 771 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). By declining to accept the tendered deed, she could have preserved her right to insist on either full payment of the note according to its terms of foreclosure and compensation as provided in the contract. She chose to accept the deed. Therefore, she has no right to the compensation provided in the contract.

Affirmed.


text:
    Agnes CHRISTIE, Appellant, v. Pauline Griffin LOWREY et al., Appellees.
    No. 20060.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 14, 1979.

      Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Luther Truett, J. E. Abernathy, W. H. Vitz, Warden, Aston & Vitz, McKinney, for appellees.
    Before GUITTARD, C.J., and ROBERTSON and CARVER, JJ.
   GUITTARD, Chief Justice.

This case comes to us as an interlocutory appeal from an order of the district court denying a motion to vacate an order signed six years earlier appointing a receiver or trustee. The ground of the motion is that the conditions which led the parties to apply for the appointment no longer exist. We hold that the original order cannot properly be vacated on grounds arising after the appointment, but we construe the motion as one seeking termination of the trusteeship rather than vacation of the original appointment. On that basis we hold that the order appealed from is final rather than interlocutory and that the trial court erred in failing to terminate the trusteeship insofar as the land is concerned because the original purpose no longer exists.

History of Proceedings in Trial Court

The original order was issued in 1973 on the application of Agnes Christie, life tenant under the will of D. P. Christie. She alleged that she had a life estate in approximately 135 acres of unimproved agricultural land in Collin County which her father, D. P. Christie, devised to her for life, and on her death to her surviving brother and sisters for their lives, and on the death of the last survivor, then to the grandchildren of the testator and their descendants. The life tenant alleged that the land provided little income in relation to its market value and prayed that a receiver or trustee be appointed with power to sell the land and invest the proceeds during her life so that she could pay ad valorem taxes and receive a higher income and so that the corpus could be preserved for the remaindermen. Her motion named as defendants the secondary life tenants, all the living grandchildren and their descendants, some of whom were minors, and also named as a class all descendants yet unborn or born after the date of the will. The adult defendants appeared and answered. A guardian ad litem was appointed for the minor remaindermen and another guardian ad litem was appointed for the unborn and after-born remain-dermen.

By agreement of all parties, including the guardians ad litem, the district court signed an order dated June 25, 1973, granting the equitable relief sought, appointing Cecil Mannefeld as trustee, and authorizing the trustee to sell and convey the property. On June 4, 1974, the court signed another agreed order, styled “Final Judgment and Order Directing Distribution of Proceeds of Sale and Defining Trusteeship.” This order recites that the trustee had sold the property for a consideration including a net down payment of $123,035.85 and a promissory note for $1,151,476.65 on which the trustee had received an advance interest payment of $86,360.07. The order directs the trustee to apply the cash on hand to the payment of a fee for the attorney for the life tenant, a commission for the trustee, fees for the guardians ad litem and the attorney for the trustee, and other expenses. The order further provides that the trustee should continue to administer the funds and the proceeds of the note in accordance with a trust agreement attached to the order until termination of the life estate of the original plaintiff, Agnes Christie, and other secondary life tenants named in the will of D. P. Christie, and that on the death of all life tenants, the trustee should deliver the corpus to the remaindermen in accordance with the will. The trust agreement, which was approved by the court and by all parties, including the guardians ad litem, confers on the trustee all the powers conferred on trustees by the Texas Trust Act and directs the payment of income to the life tenant, but requires the trustee to secure court approval of all investments and disbursements.

The next order appearing in the record is one dated January 13, 1978, accepting the resignation of the original trustee and appointing William H. Jouette as substitute trustee. This order also directs that $4,184.28 be paid out to the life tenant, Agnes Christie.

The present proceeding was initiated by filing on April 24, 1979, of a “Joint Motion of Plaintiff and Certain Defendants to Vacate Orders Appointing Receiver.” This motion names as movants the life tenant, the secondary life tenants, and all adult remaindermen, and alleges that these parties have compromised and resolved all disputes and have agreed that there no longer exists any legal or equitable grounds to justify continuance of the receivership or a sale of the property in question. The motion further alleges that although the property had previously been sold by the trustee, the purchaser had defaulted on the purchase money note and the land had been reclaimed by the trustee, but that there was no longer any necessity to sell the land, since the trustee had on hand sufficient funds from the original sale to pay ad valo-rem taxes and other expenses for an indefinite time and that the original plaintiff and life tenant no longer required income as holder of the life estate. The motion alleges that it would be for the best interest of the two remaining minor secondary remain-dermen, as well as any potential unborn remaindermen, to modify the previous judgment by rescinding and vacating the order appointing the receiver. The motion prays “that the Judgment entered in the above numbered and entitled cause on June 25, 1973, be vacated and that the property in question in the above numbered and entitled cause not be sold.”

Answers to this motion were filed by the substitute trustee and both guardians ad litem. All these answers contained general denials and prayed that the relief sought in the motion be denied. After hearing evidence, the judge signed an order denying the motion, and the movants have perfected this appeal as one from an interlocutory order within the requirements of Rule 385 of the Texas Rules of Civil Procedure. Appellants seek to invoke our jurisdiction under article 2250, Tex.Rev.Civ.Stat.Ann. (Vernon 1971), which gives us jurisdiction to review an interlocutory order “[overruling a motion to vacate an order appointing a receiver or trustee in any case.”

Vacation of Order of Appointment

Appellants contend that the trial court erred in refusing to vacate its previous order appointing a receiver for the reason that there no longer exists any justicia-ble issue between the parties or any legal or equitable grounds to justify a continuance of the receivership or any sale of the property in question. We are thus faced with the question of whether the appointment of a receiver or trustee can properly be vacated on grounds arising after the original appointment. We conclude that such grounds do not justify vacation of the original order of appointment. As we understand the authorities, an order appointing a receiver or trustee can properly be vacated only on the ground that the appointment was improper when made, either because of some defect in the proceedings leading to the appointment or because of some additional fact in existence at the time of the appointment, but not previously presented to the court. Couch Mortgage Co. v. Roberts, 544 S.W.2d 944, 947 (Tex.Civ.App.— Houston [1st Dist.] 1976, writ dism’d); Whitaker Oil Co. v. Ward, 396 S.W.2d 158, 162 (Tex.Civ.App.—Tyler), motion to certify overruled, 398 S.W.2d 155 (Tex.1965). If, as in this case, the appointment was entirely valid when made, it cannot properly be vacated on the ground that the receivership or trusteeship is no longer necessary. Of course, a receivership or trusteeship may properly be dissolved and terminated on such a later ground, but termination would not affect the validity of acts of the receiver or trustee before the date of termination. Vacation of the original appointment, on the other hand, would have the effect of nullifying all intervening acts of the receiver or trustee, or, at least, of raising serious questions concerning the validity of such intervening acts. See Spence v. State National Bank, 5 S.W.2d 754, 755 (Tex.Comm’n App.1928, judgmt. adopted); Johnson v. Barnwell Production Co., 391 S.W.2d 776 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.).

Moreover, if, as in this case, subsequent orders have been issued based on the original appointment, vacation of that appointment would amount to an attack on such subsequent orders, so that the original appointment could not be properly vacated without vacating the subsequent orders as well. Here, however, no attack has been made on the order of June 4,1974, confirming the sale by the trustee and directing disposition of the proceeds, or on the order of January 13, 1978, accepting the resignation of the trustee and appointing the substitute trustee. Therefore, we hold that appellants have shown no ground to vacate the original order of June 24,1973, appointing the receiver.

In this proceeding, appellants disclaim any attack on the subsequent orders of June 4,1974, and January 13,1978, and also disclaim any attack on the acts of the trustee or substitute trustee up to this time. They say that their motion, notwithstanding its prayer that the original order of appointment be vacated, is, in effect, a motion to vacate the receivership as of the present time, leaving all intervening orders and intervening acts of the trustees in effect. Appellants would construe article 2250 as authorizing an interlocutory appeal from an order overruling a motion to terminate a receivership or trusteeship being administered under the orders of the court.

We do not construe article 2250 so broadly. That article limits interlocutory appeals to orders appointing a receiver or trustee and orders overruling a motion to vacate an order appointing a receiver or trustee. As we have already pointed out, vacation of an order appointing a receiver or trustee, if properly based on grounds establishing that the original appointment was improper, might have the effect of nullifying the receivership ab initio. In our opinion, article 2250 does not extend our jurisdiction to review of an order refusing to terminate a receivership on grounds arising after the appointment. Consequently, if this appeal must be considered as one from an interlocutory order overruling a motion to vacate an order appointing a receiver or trustee, it fails because of failure to show grounds on which the original appointment can properly be vacated.

Finality of Order Denying Termination

The question remains, however, whether the order overruling appellants’ motion is reviewable as a final order, apart from the provisions of article 2250. As we have pointed out, the ground stated in the motion, that the receivership is no longer necessary, is a ground appropriate to a termination or dissolution rather than to vacation of the original appointment. Appellants did not seek in the trial court, nor do they seek in this court, to set aside the subsequent orders of the trial court or to nullify any of the acts of the trustee. Therefore, we may properly consider the motion as one seeking to terminate the receivership or trusteeship without setting aside the court’s previous order. Little Motor Kar Co. v. Blankenship, 228 S.W. 318, 321 (Tex.Civ.App.—Dallas 1921, no writ). We so consider it, and consequently, must determine whether the court’s denial of that relief is a final order reviewable by the ordinary process of appeal.

We conclude that an order refusing to terminate a receivership or trusteeship in a proceeding brought for that purpose, is appealable as a final order. Such an order was held to have appealable finality in Looney v. Doss, 189 S.W.2d 207, 211 (Tex.Civ.App.—Fort Worth 1945, no writ). That case was cited with approval by this court in Bergeron v. Session, 554 S.W.2d 771, 774 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.), in which we pointed out that a receivership, as an ongoing proceeding, is an apparent exception to the “one final judgment” rule embodied in rule 301 of the Texas Rules of Civil Procedure, and we applied by analogy the probate test of appealable finality, namely, whether the order in question “disposes of the main controverted issue concerning which that part of the proceeding was brought.” Id. at 775. Applying that test here, we hold that the order now in question disposes of the main controverted issue concerning which that part of the proceeding was brought, namely, termination of the receivership or trusteeship on the ground that no further necessity exists for its continuation.

Moreover, this proceeding concerns no ordinary receivership, which continues until further order of the court, but a trust estate under management of a trustee appointed by the court on agreement of the parties. According to the terms of the trust agreement, the trustee’s management will continue until the last surviving life tenant has died and the corpus has been distributed to the remaindermen. A proceeding to terminate the trustee’s authority so as to allow the property to vest in accordance with the will is more than a preliminary motion, and an order denying such relief is more than an interlocutory order. We regard it as final with respect to all grounds for termination existing at that time. Consequently, we shall proceed to review it as any other final judgment.

The appellees have suggested that we should not consider the motion in question as one to terminate the trusteeship because appellants had filed in the trial court an earlier motion to modify the judgment of June 25, 1973, which the court overruled, and that appellants should not now be permitted to obtain review of the court’s denial of the present motion, based on the same grounds, seeking “vacation” rather than modification of the previous order. We cannot consider this question, however, because we have before us no order signed by the judge disposing of the earlier motion. Indeed, the alleged “motion to modify” is before us only to the extent that the clerk has included in the transcript an unsigned copy, with an explanation that the original has been removed from the file. The transcript does not reveal the date that motion was filed. Under these circumstances, we have no basis to hold that appellants are barred by any previous proceedings from seeking review of the present order.

Termination of Trusteeship

Upon such review we conclude that the trial court abused its discretion in refusing to terminate the trusteeship, insofar as the land is concerned. The only reasons alleged originally for appointment of the trustee were that the land produced little income in relation to its market value and that the life tenant required additional income to pay ad valorem taxes and supply her own needs. The present motion and the evidence supporting it show that these reasons no longer exist. No contrary testimony was offered, although there was testimony to the effect that the land could currently be sold for an advantageous price. The trustee retains in his hands approximately $100,000 left after the purchaser’s default on the previous sale and return of the property to the management of the trustee. All adult parties in interest have joined in the request to terminate, including the primary life tenant, the two living secondary life tenants, and all adult remaindermen. The only potential remaindermen who have not agreed are those that have no legal capacity to make such an agreement, namely, the two minors and the potential unborn re-maindermen. The interest of the two minors is relatively remote, since they would take under the will only if their parents, now living, should die before termination of the life estates. Likewise, potential re-maindermen yet unborn would take only if their parents should die before the life tenants. Termination of the trust would not deprive these contingent remaindermen of their potential interests, but would permit such interests to vest exactly as provided in the will.

Appellants took the position in the trial court, and also here, that the interests of these contingent remaindermen and potential contingent remaindermen are protected by the doctrine of virtual representation, in that all of the testator’s grandchildren and their descendants, including the parents of these minors and of any unborn contingent remaindermen, have exactly the same interests in preserving the corpus of the estate until distribution on termination of the last surviving life tenant. We agree. Under these circumstances the court should not continue the trusteeship over the objection of all parties in interest who have capacity to speak for themselves in order to protect the interests of contingent remaindermen whose interests are no different from the intereste of other parties in this case. Bradley v. Henry, 239 S.W.2d 404, 406 (Tex.Civ.App.—Fort Worth 1951 no writ) (unborn contingent remaindermen are adequately represented by living remainder-men of same class, and also by persons whose estates precede or follow theirs if they have the same interest); see Looney v. First Nat’l Bank, 322 S.W.2d 53, 55 (Tex.Civ.App.—San Antonio 1959, writ ref’d n. r. e.) (after-born remaindermen bound by judgment under doctrine of virtual representation).

The trustee and the guardians ad litem contend that the judge had discretion to refuse to terminate the trusteeship if, in his judgment, the best interests of the contingent remaindermen would be better served by a present sale of the property and investment of the proceeds rather than by permitting the land to remain unsold and relatively unproductive until termination of the life estates. They point out that the value of this land, like other land in Collin County, has fluctuated widely in recent years, and they insist that the judge was not required to speculate on future market conditions.

This argument would be persuasive if a trust had been provided by the will. In this case, however, the testator provided no trust. He left the property to his daughter Agnes for her life, and on her death to his other children for their lives, and on the death of his last surviving child, to his grandchildren and their descendants. To the extent that the court appointed a trustee for the sale of the property and investment of the proceeds, the court employed its equity powers to change the testamentary scheme. Since the undisputed evidence now shows that those reasons no longer exist, we see no further justification for interference with the testamentary scheme, insofar as the land is concerned.

A different problem, however, is presented by the funds in the hands of the trustee. The will makes no provision for such funds as these, and we cannot presume that the testator intended that the life tenant should have power to manage them. Since the funds came into the trustee’s hands as a result of the previous sale, which was properly authorized by the court, although title to the land was later restored because of the purchaser’s default, and they are held by the trustee under the terms of the trust agreement, there is good reason for the trustee to continue to administer these funds in accordance with that agreement. Invested funds, unlike land subject to a life estate, are subject to dissipation if not properly managed. Therefore, the trial court properly refused to terminate the trust with respect to these funds.

We hold that the trustee can properly be directed to pay from the funds in his hands all expenses of the trusteeship to this date, including the fees of the guardians ad litem. The attorneys who have acted in this capacity, as well as the attorney appointed to represént the trustee, have rendered able assistance and have enabled both the trial court and this court to give the case the full consideration that it deserves. Their fees, likewise, are properly payable out of the funds on hand.

Accordingly, insofar as the order appealed from concerns the land in question, the order is reversed and the cause is remanded to the trial court with instructions to direct the trustee to deliver the land to the life tenant, Agnes Christie, free of any further orders of the court so that it may vest and pass as provided in the will of D. P. Christie. In all other respects the order is affirmed. Costs are adjudged against the trustee, to be paid out of the funds in his hands.

      . Although the motion refers to the order as one appointing a receiver, the order in question purports to appoint a trustee. For the purpose of this opinion, the difference is immaterial.


author: /s/ John S. Palmore Chief Justice

text:
    Willie APPLEBY and James Lofton, Movants, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Sept. 18, 1979.
    Terrence Fitzgerald, Chief Appellate Defender, Richard L. Receveur, Asst. Public Defender, Louisville, David A. Lambertus, Louisville, for movants.
    Robert F. Stephens, Atty. Gen., George M. Geoghegan, III, Asst. Atty. Gen., Frankfort, Paul W. Richwalsky, Jr., Asst. Commonwealth’s Atty., Louisville, for respondent.
   OPINION AND ORDER

The Court, having considered the briefs of movants and respondent and having heard oral argument in this matter, is of the opinion that discretionary review was improvidently granted.

The order granting discretionary review is vacated and the case is remanded to the Court of Appeals for the issuance of its mandate.

All concur.

Entered September 18, 1979.

/s/ John S. Palmore

Chief Justice


author: LUKOWSKY, Justice.

text:
    KENTUCKY STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION (Substituted as Defendant for Kentucky State Board of Education) an Administrative Board of the Commonwealth of Kentucky, et al., Appellants, v. Reverend C. Harry RUDASILL, et al., Appellees.
    Supreme Court of Kentucky.
    Oct. 9, 1979.
    Rehearing Denied Dec. 18, 1979.

      Bert T. Combs and William E. Scent, Tarrant, Combs & Bullitt, Louisville, Robert F. Stephens, Atty. Gen., Robert L. Cheno-weth, Asst. Atty. Gen., Edward L. Fossett, Legal and Legislative Services, Kentucky Dept, of Ed., Frankfort, for appellants.
    William B. Ball, Ball & Skelly, Harrisburg, Pa., Theodore H. Amshoff, Jr., Am-shoff & Amshoff, Louisville, for appellees.
    John C. Fogle, and F. C. Bryan, Bryan, Fogle & Riggs, Mount Sterling, for Kentucky Ass’n of School Administrators and Kentucky School Bd. Ass’n, amici curiae.
    Arthur L. Brooks and Jennifer Coffman, Lexington, John J. Slattery, Jr., Gen. Counsel, Kentucky Ed. Ass’n, Louisville, for Kentucky Ed. Ass’n, amici curiae.
    William Katzinski, Louisville, for Lutheran Ed. Ministries of Kentuckiana, Inc., ami-ci curiae.
    Robert L. Heleringer, Louisville, for League of Catholic Parent-Teacher Associations of the Archdiocese of Louisville, Kentucky, amici curiae.
    Walter E. Carson, Johns, Carson & Booth-by, Washington, D. C., for General Conference of Seventh-Day Adventists, amici curiae.
    William E. Johnson, Frankfort, for amici curiae.
   LUKOWSKY, Justice.

This case requires us to establish the perimeter within which the Commonwealth may regulate the curriculum and instruction in private and parochial schools. The trial court held that the Commonwealth’s textbook approval, teacher certification, and school accreditation requirements, accompanied by the threatened prosecutions of the respondents for alleged violations of the compulsory education laws, violated the first amendment to the federal constitution and section 5 of the Kentucky constitution. We granted a joint motion for transfer of this appeal from the Court of Appeals to this court. Having considered the arguments made by counsel and amici curiae, we reverse in part and affirm in part.

This action was initiated by several pastors and their churches, parents of children enrolled in non-public schools of those churches, and the Kentucky Association of Christian Schools, Inc. [church schools]. The parties sought a declaratory judgment that the Commonwealth’s standards for approval of private church schools were invalid. The church schools further sought and received below both temporary and permanent injunctive relief preventing the Commonwealth from imposing its approval standards upon the church schools and from prosecuting under the compulsory attendance laws, the church schools or the parents sending children to those schools. The church schools expressly recognized the state’s interest in reasonable health, fire, and safety standards for those schools. Therefore, no issue is presented regarding this form of regulation by the state.

The defendants below, and appellants before this court, are the Kentucky State Board of Elementary and Secondary Education and its chairman, The Kentucky Department of Education, the Superintendent of Public Instruction, and four county boards of education along with their directors of pupil personnel [Commonwealth]. The Commonwealth urges that KRS 156.-160, which directs The Kentucky State Board for Elementary and Secondary Education to “adopt rules and regulations relating to: (7) Approval of private and parochial schools of elementary or high school grades; . .,” and KRS 158.080, which directs private schools to “offer instruction in the several branches of study required to be taught in the public schools,” permit the Commonwealth to apply their standards for accrediting Kentucky Schools, XLIV Educ. Bull. Ser. No. 11, to the church schools, to require that the church school teachers be certified and to insist that textbooks used in the church schools be from the state list of approved textbooks. Attendance at church schools which are not so approved does not qualify the students there enrolled for the exemption from compulsory attendance in the public schools provided by KRS 159.030, in the opinion of the Commonwealth.

Section 5 of the Constitution of Kentucky provides in part “nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; . ” This court has not had occasion to construe this clause of section 5 found within the Kentucky Bill of Rights. But, we have the history of section 5 and of this clause to aid the court in divining the intent of the constitutional draftsmen in settling upon the words they chose to limit the power of the state. The task is now before us. We begin.

The Kentucky constitutions of 1792,1799, and 1850 each contained a bill of rights which provided for religious liberty. The language of these sections remained virtually unchanged until the present constitution was adopted in 1891. The delegates to the Constitutional Convention of 1890 did not casually adopt verbatim the language of the bill of rights as it was found in the previous three Kentucky constitutions. Instead, these delegates examined the guarantees afforded the citizens of sister states by their constitutions along with the traditional protections given to and expected by the citizens of Kentucky. Then guided by their own consciences, they drafted a comprehensive bill of rights for the new constitution. It is generally recognized that the convention of 1890 was comprised of competent and educated delegates who were sincerely concerned with individual liberties. The debate on the bill of rights after it was reported from the Committee on Preamble and Bill of Rights lasted nearly two months and covers almost 950 pages in the published proceedings and debates of the convention. It is from this bountiful harvest of history that we must glean the intent and interpretation of section 5.

The language guaranteeing religious liberty in the Commonwealth reported by the Committee on Preamble and Bill of Rights did not include the clause “nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed.” 1 Official Report of the Proceedings and Debates in Convention 300 (1890) [hereinafter cited as Debates]. The clause was specifically adopted by the convention and was the subject of comprehensive pointed debate.

The right of conscience protection relating to schools was the object of three distinct rounds in the debate on the bill of rights. First, the restriction was adopted as an ámendment to the report of the Committee on Preamble and Bill of Rights while the convention sat as a committee of the whole. 1 Debates 846-49. Second, during preparation of the report of the committee of the whole for transmittal to the convention, a substitute section was adopted which omitted the clause. 1 Debates 1025. This fathered a debate between the advocates of “no man shall be compelled to send his child or children to any school” [hereinafter referred to as the Knott amendment] and of “no man shall be compelled to send his child to any school to which he may be conscientiously opposed” [hereinafter referred to as the Beckner amendment]. 1 Debates 1027-28; 1034^-35. Neither amendment was adopted for the report of the committee of the whole, but this debate served to frame the issue of compulsory education for the third debate. When the report of the committee of the whole came before the delegates in convention, the issue was again debated, and the convention adopted the Beckner language which is present in section 5. 1 Debates 1135-45; 1243.

The debate over section 5 centered on whether compulsory education should be constitutionally proscribed. The first seeds of intent were sown in the first debate:

“Mr. BECKNER. As is well-known, there is a large element of a great religious organization, to which many persons in Kentucky belong, opposed to the American system of public schools. Their opposition arises from the fact that there is no religious instruction given in those schools. They are as conscientious in their opposition to those schools as I am in my belief in that system. I am anxious for this Convention to do whatever can be done to render our system of public schools acceptable to all our people, and to remove every objectionable or obnoxious feature. It is believed by many that the time will come when we will have compulsory education. I am opposed to inserting in this Constitution any provision looking to compulsory education, leaving it to the future to determine that matter, when our public school system shall have been made more perfect than it is, and when our people are better prepared for it. In the wisdom of those who succeed us it may become proper then to introduce that system. This amendment simply provides that in the future there shall be no provision made requiring those who are conscientiously opposed to sending their children to public schools to do so. We do not know what may arise in the future in the zeal of those who come after us; and they may attempt to compel persons who are conscientiously opposed to the public schools to send their children to them, fixing pains and penalties for refusal.” . (Emphasis added)

1 Debates 847

Even at this early point in the exchange of ideas the Beckner amendment became the compromise position between those who would proscribe the concept of compulsory education and those who would leave the Commonwealth absolutely unfettered.

The opposition to compulsory education was stated pointedly by Mr. Robert Rodes of Warren County:

“There ought not to be any law in our Constitution or enacted by the Legislature to compel a man to send his child to school unless he wants to do it. . The family is the proper unit; and I think a good many gentlemen who have spoken will bear me out in the statement that the head of the family is the unity of government in this country, and the family have some rights which ought to be respected and cannot be invaded, and if there are not enough inducements for a man to send his child to school, the government ought not to interfere. . . ”

1 Debates 848-49.

The Beckner amendment represented the position that while the state has an interest in the education of its citizens which could be furthered through compulsory education, the rights of conscience of those who desired education of their children in private and parochial schools should be protected. It was anticipated that without express protection of private and parochial education the state might try to prevent children from attending other than public schools. It must be recognized that this debate took place many years before the decision in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) which held the state could not require public school attendance to the exclusion of private and parochial schools. Obviously, the concern of the drafters of the Beckner amendment was well founded.

The Beckner amendment was worded so as to not hamper future legislatures in constructing a system of free public schools and requiring attendance at them by all save those who hold conscientious objection to them. The Knott amendment backers and their views that parents should be able to educate their children at the hearthside did not prevail. It is beyond quibble that the delegates meant to leave to the legislature the question of compulsory education.

Having concluded that the power to require universal education was not vitiated by the Beckner amendment to section 5, it becomes essential to identify the limits of this state power where the boundary between the state’s interest in quality education and the individual’s conscientious objection to public education is indistinct. May the Commonwealth control the manner in which private or parochial schools teach the young? Again, we look to the debates:

“Mr. Beckner: [M]any think it is the logic of the free school system that those who do not send to the free school, shall be required to send their children a certain portion of time to some other schools, in order to give them the rudiments of an education. . . . My amendment simply says that those who have children shall not be required to send them to schools to which they may be conscientiously opposed. It does not hamper the Legislature in any way but allows it to provide that they shall send them to some school. It may be a school of their own church, or a school of their own neighborhood. They have the right to choose what school they shall send them to. If the Legislature shall provide that the children shall be sent to some school for a certain portion of time, my amendment does not forbid it. ... If it be the duty of the State to provide education for all its children, and to see that we have intelligent citizens, and to provide the means for becoming intelligent, then the State ought to be left free to see that the children are sent to schools. . . .” (Emphasis added)

1 Debates at 1137.

The Beckner amendment supporters clearly intended that the legislature be allowed to compel attendance at some school, the choice of which the child’s parents could make as a matter of conscience, but the purpose of which would be to educate children to be citizens. That the convention understood the Beckner amendment to permit the requirement of compulsory attendance at a formal school vis a vis the family hearth is demonstrated by the perception of its effect by its opposition:

“Mr. Knott: . . . Suppose he has conscientious scruples against all schools. Nevertheless, under the gentlemen’s amendment he must send his children to school, although he may be perfectly well prepared and perfectly willing to educate them by his own hearthstone.”

1 Debates at 1138.

The use of the word “school” in its ordinary sense by the drafters also supports this conclusion: “In its ordinary meaning the word ‘school’ denotes a place for systematic instruction in any branch or branches of knowledge.” City of Chicopee v. Jackubowski, 348 Mass. 230, 202 N.E.2d 913, 915 (1964); see Kesselring v. Bonnycastle Club, 299 Ky. 585, 186 S.W.2d 402 (1945). “The word ‘school’ except when applied to a building or place, implies plurality and consociation.” St. John’s Military Academy v. Edwards, 143 Wis. 551, 128 N.W. 113, 114-15 (1910). “A school the court holds to be an institution consisting of a teacher and pupils . . . gathered together for instruction in any branch of learning, the arts or the sciences.” Benvenue PTA v. Nash Co. Bd. of Education, 4 N.C.App. 617, 167 S.E.2d 538, 540-41 (1969) quoting Weisse v. Bd. of Educ., 178 Misc. 118, 32 N.Y.S.2d 258 (1941). While the legislature could permit education in the home, it has not done so. See KRS 159.010 and 159.030.

The light shed by the purpose of compulsory education expressed by the advocates of the Beckner amendment aids in the definition of the state’s interest in private and parochial education. The delegates perceived that universal education might be required in order to prepare children of the Commonwealth to intelligently participate as citizens in a democracy, i. e., to exercise the elective franchise, but not to uniformly develop them socially and morally in the same educational mold. Mr. Beckner stated, “We educate our children here to make intelligent voters of them. . . . The main object of our public schools is that our people may be made intelligent enough to exercise the right of suffrage.” 1 Debates at 1142. In support of this argument, Mr. W. R. Ramsey, representing Laurel and Rockcastle counties, said,

“I do not understand by compulsory education, as it has been adopted in other States of this Union, that the parent shall be compelled to send his child to a school which has been provided by the State, but all the provisions which have been adopted by the different States provide that the child shall be placed in some school and receive some education; not that it shall be educated by the public schools of the State exclusively, but that it shall be sent to some school, either public or private, and educated. ... If the parent has conscientious objection to sending them to a public school, they must provide other means of educating them, so that they shall have at least twelve weeks schooling in each year.”

1 Debates at 1143.

We therefore conclude that the delegates in adopting the Beckner amendment intended to permit the Commonwealth to prepare its children to intelligently exercise the right of suffrage by compelling attendance at a formal school, public or private or parochial, for a legislatively determined period each year. The question now becomes to what extent does the state’s interest in educating its citizens to vote in a democracy permit the Commonwealth to control “a school” outside of the free public system.

The Commonwealth constructed the framework for implementing this interest in KRS 158.080. It provides that private and parochial schools shall (1) be taught in the English language; (2) “offer instruction in the several branches of study required to be taught in the public schools;” and (3) operate for a term not shorter than the public schools. From our examination of section 5, it is clear that KRS 158.080 does not offend the bill of rights provided that the “several branches of study” are rationally related to the education of children to exercise their right of suffrage and to participate in the democratic system.

The Commonwealth argues that the KRS 158.080 requirement to “offer instruction in the several branches of study” means that the “instruments of instruction, such as teachers and books, be of reasonable quality.” Brief for Appellants at 47. Therefore, it is posited, the statute “clearly contemplates that standards may be prescribed . . . with which a school must comply in order to be approved.” Id. Section 5 does not allow the Commonwealth to reach this far.

It cannot be said as an absolute that a teacher in a non-public school who is not certified under KRS 161.030(2) will be unable to instruct children to become intelligent citizens. Certainly, the receipt of “a bachelor’s degree from a standard college or university” is an indicator of the level of achievement, but it is not a sine qua non the absence of which establishes that private and parochial school teachers are unable to teach their students to intelligently exercise the elective franchise.

The Commonwealth’s power to prescribe textbooks for use in private and parochial schools is likewise limited by Section 5. The textual materials used in the public schools are at the very heart of the conscientious opposition to those schools. To say that one may not be compelled to send a child to a public school but that the state may determine the basic texts to be used in the private or parochial schools is but to require that the same hay be fed in the field as is fed in the barn. Section 5 protects a diversified diet.

Pursuant to section 5 of the Constitution, the Commonwealth must “approve” a private or parochial school for the purposes of KRS 159.010 and 159.030 unless it demonstrates the educational institution in question is not a “school” as contemplated by the constitutional convention or does not serve to educate the children of Kentucky to enjoy their right of suffrage. Insofar as 704 KAR 10.022 applies the state accreditation standards to the private and parochial schools of Kentucky, it must fall.

If the legislature wishes to monitor the work of private and parochial schools in accomplishing the constitutional purpose of compulsory education, it may do so by an appropriate standardized achievement testing program. Wolman v. Walter, 433 U.S. 229, 238, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977); see, e. g., KRS 158.690. If the results show that one or more private or parochial schools have failed to reasonably accomplish the constitutional purpose, the Commonwealth may then withdraw approval and seek to close them for they no longer fulfill the purpose of “schools”.

. Nothing in this opinion should be read to prohibit:

A. Any private or parochial school from voluntarily complying1 with state standards of accreditation or seeking the financial advantages of KRS 171.215.
B. Any teacher in a private or. parochial school from voluntarily seeking certification pursuant to KRS 161.030(2).
C. The Commonwealth from requiring private and parochial schools to comply with reasonable health, fire and safety standards as conditions of approval.

The judgment is affirmed in part and reversed in part and the cause is remanded for entry of a judgment consistent herewith.

All concur.

      . Amicus Curiae briefs were filed in support of the judgment below by the Lutheran Education Ministries of Kentuckiana, Inc., The League of Catholic Parent-Teacher Associations, and the General Conference of Seventh-Day Adventists. Both the Kentucky Association of School Administrators with The Kentucky School Boards Association and the Kentucky Education Association filed amicus curiae briefs in support of reversal.

      . “Sec. 5 Right of religious freedom. — No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.” (Emphasis added)

      . We note at the outset that it is obvious that Section 5 of the Kentucky Constitution is more restrictive of the power of the state to regulate private and parochial schools than is the first amendment to the federal constitution as it has been applied to the states. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Consequently, the Supremacy Clause of Article VI of the U. S. Constitution does not require us to ride with the Federales in order to reach a decision. Those interested in the asserted federal issues can find a discussion in Comment, Regulation of Fundamentalist Christian Schools: Free Exercise of Religion v. The State’s Interest in Quality Education, 67 Ky.L.J. 415 (1979). An overview of education and religion in the Commonwealth can be found in Comment, Separation of Church and State: Education and Religion in Kentucky, 6 N.Ky.L.Rev. 125 (1979).

      .“Sec. 3. That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; that no human authority can in any case whatever control or interfere with the rights of conscience; and that no preference shall ever be given by law to any religious societies or modes of worship.
      Section 4. That the civil rights, privileges, or capacities of any citizen shall in no ways be diminished or enlarged on account of his religion.”
      Ky.Const.1792, Art. XII
      The protection of religious freedom was found in Art. X. Sections 3 and 4 of the Constitution of 1799 and in Art. XIII, Sections 5 and 6 of the Constitution of 1850.

      . Throughout the debate on the Bill of Rights Section 5 was referred to as section 4, as it was numbered in the original committee report.

      . Mr. J. Proctor Knott of Marion County, sponsored the substitute section 4 and an amendment to add “no man shall be compelled to send his child or children to any school” to his substitute section as that clause was “inadvertently omitted” from the substitute as adopted. 1 Debates 1027.

      . Mr. W. M. Beckner of Clark County sponsored this language in all three of the debates on section 5.

      . This purpose is illustrated by the following excerpt from the debate:
      “Mr. Beckner: . . . My proposition was that no one shall be compelled to send his child to any school to which he may be conscientiously opposed, saving the conscience of those who are opposed to the public school system. This relieves the public schools of the opposition made by a number of good people throughout the land, that it is a Godless system, and they ought not to be required to send their children. This does not prevent the Legislature from requiring them to send their children to some school.

        MR. CARROLL. Is not your substitute substantially the same as the substitute of the Delegate from Marion?
      MR. BECKNER: No, sir.
      MR. CARROLL: If a person says, “I am conscientiously opposed to sending my child to a school,” can he be made to do so?
      MR. BECKNER: I think the Courts would have to determine whether it was a case of conscientiousness.
      MR. CARROLL: Is not a man’s conscience with himself?
      MR. BECKNER: The Courts would decide whether it was a matter of conscience or whether he wanted to keep his child at home. Under the Census of 1880, Kentucky had one hundred and eighty thousand more voters who could not read than she had in 1870.
      The Census of 1880 showed that twenty-nine and three-tenths per cent of the people who ought to have been able to read could not. Now, if the General Assembly in future should see fit to provide that children should be sent to school during such a period of the year. I should think they should do so, and we should not hamper or prevent the Legislature from passing such a law . . . My amendment provides that children may be required to go to school, but parents shall not be compelled to send them against their conscience.
      MR. KNOTT: ... I say every man has a right to educate his children in the bosom of his own family, and not to send them to any school. . .” (Emphasis added)
      1 Debates 1034-35.

      . State controlled homogeneous schools have provided a fertile field for the growth of totalitarian governments. See, e. g., A. Hitler, Mein Kampf, Reynal & Hitchcock Ed. 612-46 (1941).

      . Obviously, such basic studies as reading, writing, spelling, grammar, history, mathematics and civics are so related. See KRS 158.-650(3). This is not co say that other subjects may not bear a more remote but still rational relationship.


author: PER CURIAM.

text:
    The CITY OF SOMERSET, Kentucky, et al., Movants, v. The CITY OF FERGUSON, Kentucky, et al., Respondents.
    Supreme Court of Kentucky.
    Oct. 9, 1979.
    Rehearing Denied Dec. 4, 1979.

      John T. Mandt, Mandt, McEnroe & Polk, Somerset, for movants.
    James M. Frazer, Frazer & Gibson, Monticello, for respondents.
   PER CURIAM.

The opinion of this court is that there has been no material change in the statutes pertinent to this case since Pence v. City of Frankfort, 101. Ky. 534, 41 S.W. 1011, 1015 (1897), established that a city of the third class has the power “to annex the territory of another municipality.” *

We are not persuaded that this authority does violence to Section 156 of the Kentucky Constitution or to the Due Process Clause of the 14th Amendment.

The decision of the Court of Appeals is reversed, and the judgment of the Pulaski Circuit Court is affirmed.

PALMORE, C. J., and CLAYTON, LU-KOWSKY, REED, STEPHENSON and STERNBERG, JJ., sitting.

All concur.


author: REED, Justice.

text:
    Jessica LOMAYESTEWA, Movant, v. OUR LADY OF MERCY HOSPITAL (Religious Sisters of Mercy of the Union of the United States of America), Respondent.
    No. 78-SC-536-D.
    Supreme Court of Kentucky.
    Oct. 9, 1979.
    Rehearing Denied Nov. 20, 1979.

      Charles E. Moore, Moore, Moore & Hager, Owensboro, for movant.
    Clarence McCarroll, Bartlett, McCarroll & Nunley, Owensboro, for respondent.
   REED, Justice.

The movant, Jessica Lomayestewa, a 28-year-old Navajo Indian, is a victim of Grand Mai epilepsy and emotional derangement. While a patient at respondent, Our Lady of Mercy Hospital, she either jumped or fell through a window in a room she was occupying in the psychiatric ward of the hospital. Her fall to the ground produced personal injuries and she sued the hospital for these damages.

At the trial, the judge submitted to the jury the issues of the hospital’s negligence and Jessica’s contributory negligence. The jury returned a general verdict in favor of the hospital. From a judgment in accordance with the verdict, Jessica appealed to the Court of Appeals but the judgment was affirmed. We granted discretionary review and now reverse the decision of the Court of Appeals and the judgment of the trial court with direction that Jessica’s motion for judgment n. o. v. be sustained and that judgment be entered in her favor against the hospital on the issue of liability and that a new trial by jury be limited to the issue of damages.

The evidence established that Jessica was emotionally deranged and this condition was well known to the hospital at the time she was accepted as a patient. The evidence also clearly established that the room which she occupied at the time of the incident complained of had no detention screen or its equivalent as required in the operation of hospital psychiatric wards by Kentucky Administrative Regulation No. 902 KAR 20.010. It appears that Jessica, a college student, became violent and uncontrollable in her dormitory and was first admitted to Room 222, a so-called “seclusion room” in the psychiatric ward. Later, she was moved to Room 218 in the same ward for accessibility to oxygen. Apparently she became somewhat combative and was placed on a bed with “Posey restraints.” Posey restraints are described in the evidence as a restraint-type vest which are in the nature of a modified strait jacket. She was left alone and somehow extricated herself from the restraints, got to the window and jumped out. There was no detention screen on the window of Room 218 as required by the statutorily authorized regulation. Although the hospital sought to inject the consideration that the condition of the window was “equivalent to” the required detention screen, the administrator of the hospital candidly testified that no detention screen was on the window, that the window was latched from the inside by a normal latch and could be raised easily if it was unlocked. The other excuse offered by the hospital was that periodic inspections by governmental officials had not raised any question as to the compliance with the regulation. Our review of the record convinces us that it is crystal clear there was a violation of the regulation and, of course, no inspector had any authority to relieve the hospital of compliance with the statutory standard.

Having determined there was a violation of the statutory standard, we have no trouble in determining that Jessica was one of the class of persons intended to be protected by the regulation, and her jump from the window was an event that the regulation was designed to prevent. Thus any question of causation presents no impediment to the hospital’s liability.

Our analysis of the case convinces us that the critical issue in the case is whether the defense of contributory negligence, including the element of assumption of risk, is available to the hospital under the factual situation presented.

“Where the defendant’s negligence consists of the violation of a statute, the traditional view has been that the plaintiff may still assume the risk . There have been certain statutes, however, which clearly are intended to protect the plaintiff against his own inability to protect himself, including his own lack of judgment or inability to resist various pressures. Such, for example, are the child labor acts, and various safety statutes for the benefit of employees, . Since the fundamental purpose of such statutes would be defeated if the plaintiff were permitted to assume the risk, it is generally held that he cannot do so, either expressly or by implication.” Prosser, Law of Torts, Sec. 68 at 453 (4th ed. 1971) (footnotes omitted).

As early as 1913, this court held in Louisville H. & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971, that a statute prohibiting the employment of children under 16 in certain employments in effect abolished the defenses of contributory negligence including the element of assumption of risk in actions by children injured while employed in such occupations in contravention of the statute. Whether the present regulation which establishes standards for the safety of mental patients in psychiatric wards precludes the defense of contributory negligence is a matter of the legislative purpose which the court finds in the statute.

“If it is found to be intended merely to establish a standard of ordinary care for the protection of the plaintiff against a risk, his contributory negligence with respect to that risk will bar his action, as in the case of common law negligence. But there are certain unusual types of statutes, such as child labor acts, those prohibiting the sale of dangerous articles such as firearms to minors, the Federal Safety Appliance and Boiler Inspection Acts, factory acts for the protection of workmen, or railway fencing or fire statutes which have been construed as intended to place the entire responsibility upon the defendant, and to protect the particular class of plaintiffs against their own negligence. In such a case, as in the case of the statutes involving the age of consent, the object of the statute itself would be defeated if the plaintiff’s fault were a defense, and the courts refuse to recognize it.” Prosser, Law of Torts, Sec. 65 at 425, 426 (4th ed. 1971) (footnotes omitted).

We find nothing in our case law which indicates a contrary view. In our view, the very purpose of the statutory regulation would be completely emasculated if the plaintiff’s contributory negligence, including the element of assumption of risk, was permitted to defeat his action against a violator of the statutory regulation. It is our conclusion, therefore, that the trial judge erred in submitting the elements of causation and contributory negligence to the jury. The movant made timely requests for a directed verdict on the issue of liability. The movant’s motion for judgment n. o. v. should have been granted. We, therefore, direct that the trial court enter judgment that the respondent is liable to the movant. The issue of damages only shall be tried by a jury on a retrial.

The decision of the Court of Appeals and the judgment of the Daviess Circuit Court are reversed and the cause is remanded to the Circuit Court for further proceedings consistent with this opinion.

All concur.


text:
    Gilbert Y. McFADDEN, Movant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Postal Data Center, Respondents.
    Supreme Court of Kentucky.
    Oct. 30, 1979.
    Paul M. Lewis, Elizabethtown, for mov-ant.
    Marvin R. O’Koon, Gen. Counsel, R. Hughes Walker, Dept, for Human Resources, Frankfort, for respondents.
    Herbert L. Segal, Carol M. Raskin, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, John Fillion, Jordan Rossen, Detroit, Mich., for amicus curiae.
   OPINION AND ORDER

The Court, having considered the briefs of movant and respondents and having heard oral argument in this matter, is of the opinion that discretionary review was improvidently granted.

The order granting discretionary review, Ky., 585 S.W.2d 404, is vacated, and the case is remanded to the Court of Appeals for the issuance of its mandate.

All concur, except AKER, CLAYTON and REED, JJ., who dissent.

Entered October 30, 1979.

/s/ John S. Palmore

Chief Justice


author: STERNBERG, Justice.

text:
    Dr. D. V. SUBLETT et al., Movants, v. Lawrence HALL et al., Respondents.
    Supreme Court of Kentucky.
    Oct. 30, 1979.

      C. Kilmer Combs, Tarrant, Combs & Bul-litt, Lexington, Bruce Stephens, Jr., Hazard, for movants.
    J. K. Wells, Wells, Porter & Schmitt, Paintsville, for respondents.
   STERNBERG, Justice.

Ken-Ny Securities Corporation, hereinafter referred to as Ken-Ny, was a record titleholder of a tract of coal land and Lawrence Hall and William J. M. Polan were its lessees. Movants Subletts’ claim of ownership arises by reason of inheritance from their father, who in turn on May 23, 1946, received a deed for this property as the result of a sheriff’s sale for delinquent taxes. Both Ken-Ny and the Subletts were, therefore, claiming title to the same tract of land. On March 20, 1975, Ken-Ny and Hall commenced these proceedings against the Subletts, pursuant to the provisions of KRS 411.120, seeking to have the court declare the rights of all of the parties. Issues were duly made as to the ownership of the subject land and as to the right of Ken-Ny to maintain this action.

On August 16, 1975, pursuant to the motion of Ken-Ny and Hall, which was filed on July 25, 1975, the court entered an order dismissing Ken-Ny as a plaintiff and adding it as a defendant therein. On August 16, 1975, Ken-Ny, as a defendant, filed an answer admitting all of the allegations of the complaint and joined in the demands and relief therein sought. On September 13, 1975, Hall, who at that time was the only plaintiff, moved that the action be dismissed without prejudice as to the defendant Ken-Ny. During the course of the litigation Ken-Ny was called upon by the Sub-letts to produce two named persons so that their depositions could be taken, which Ken-Ny failed and refused to do. On August 13, 1975, the Subletts moved the court for sanctions against Ken-Ny. On October 15,1975, the' trial court granted the relief sought. The sanction order in part provides:

“ * * * it is now ordered that the defendant, Ken-Ny Securities Corporation, be and it is hereby dismissed from this litigation, with prejudice, provided, however, that this order is interlocutory, only, and the final disposition this Defendant, will be determined upon submission and judgment.”

The court properly classified the order as interlocutory.

On November 22, 1975, the Subletts filed a motion for summary judgment, and on November 28, 1975, Hall likewise filed a motion for summary judgment. While said motions were pending, a motion was made by Polan to intervene and to be substituted as a plaintiff in the name, place and stead of Hall. On November 8, 1976, Polan’s motion was granted in part and he was made a co-plaintiff with Hall. On January 22, 1977, the two plaintiffs, Hall and Polan, made a motion that the court dismiss the whole action without prejudice. On March 21,1978, the trial judge entered the following order:

“On motion of Plaintiffs and after hearing of parties by counsel, and the Court being advised, Plaintiff Lawrence Hall is seriously ill, it is now ordered that this action be and it is hereby dismissed, without prejudice, at the cost of Plaintiffs.”

From this order the Subletts appealed to the Court of Appeals of Kentucky. On November 10, 1978, the Court of Appeals rendered its opinion wherein the aforementioned order of March 21,1978, was vacated and the case remanded to the trial court for further proceedings. This court granted review on April 24, 1979.

Even though this is an action for the declaration of the rights of the parties, the trial court did not concern itself with the substantive law, that which creates duties, rights and obligations. It did, however, concern itself with the machinery for carrying on the lawsuit (procedural law). In doing so, the court did not decide the ownership of the subject property nor the rights, duties or privileges of the lessees. The trial court did determine, and we think correctly, that it had jurisdiction to enter the subject orders. At the time of the order dismissing without prejudice, Ken-Ny had been stricken as a plaintiff and had been made a defendant. Having entered the orders, we presume the trial judge made such determination.

In the opinion of the Court of Appeals, it is written: “We determine, at this state of the proceedings, that there is one primary issue which is the correctness of the order of dismissal without prejudice.”

We concur that the propriety of the order dismissing without prejudice is the primary issue and that the effects of the orders are not in question. We must bear in mind that the October 15, 1975, order was not an unequivocal dismissal with prejudice. It specifically provided that it was interlocutory only and that the ultimate ruling was put off until final judgment. It makes no difference by what name the order is denominated; it is the character of the order that controls. In this case then, the full determination of the Subletts’ motion for sanctions against Ken-Ny was not to be made until further order (judgment). This order was truly interlocutory and non-appealable. Hale v. Deaton, Ky., 528 S.W.2d 719 (1975).

In writing of the order of October 15, 1975, movants state: “This order was entered pursuant to motions by the Subletts for Rule 37 sanctions over objections by Appellees.”

CR 37.02(2)(c) provides:

“Sanctions by Court in Which Action is Pending.
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30.02(6) or 31.01 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Rule 37.01 or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
******
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

CR 37.02(2)(c) applies solely and only to situations where there has been a failure to comply with an order of court. In the subject action there was no order of court directing Ken-Ny to do anything, much less direct its president and secretary to give their depositions for any purpose. The Subletts’ motion was not within the provisions of CR 37.02(2)(c). CR 30.01 provides for the taking of depositions, and a person who fails to testify or give his deposition, after being duly served with proper notice, may be ordered to do so by the court. Upon failure, he may be disciplined by the court, including those sanctions authorized by CR 37.02(2)(c). Even though the Subletts were not entitled to sanctions under CR 37.02(2)(c), they were entitled to proper relief under CR 37.04. These sanctions would include such penalties as are provided by the order of October 15, 1975.

The motion of Hall and Polan to dismiss the action without prejudice is in words and figures as follows:

“Plaintiffs move, pursuant to CR 41.01, that this action be dismissed, without prejudice, and as grounds for said motion state that:
First: Defendants’ answer does not include a counter-claim and although discovery depositions have been taken and defendants have filed a motion for summary judgment, defendants have taken no proof on the merits and the case has made very little progress towards submission and judgment.
Second: This action is for a declaration of rights as to the validity of a sheriff’s sale and deed under which defendants, the Subletts, claim title to certain coal properties in Magoffin County, but defendants have injected into the action such issues a champerty in plaintiffs’ lease and the status of the unqualified non-resident lessor to execute the lease, which are entirely collateral to the real issue involved.
Third: After dismissal, the non-resident corporate lessor would qualify to do business in Kentucky and would thereupon execute a new lease to plaintiffs, thereby eliminating these purely technical issues and simplifying any subsequent litigation.”

The response of the movants Subletts is as follows:

“Come now the Defendants and for response in opposition to Plaintiffs’ motion to dismiss without prejudice and states as follows:
1. This action was filed on March 20, 1975, and has now been pending nearly two years. The pleadings were duly made up and the issues in the case presented and joined. The very first defense pleaded in the Defendants’ answer filed herein was the incapacity of the Plaintiffs to sue, and Plaintiffs have delayed nearly two years without attempting to comply with KRS 271A.610; and after this case is under submission on both parties’ motions for summary judgment. For the court to grant dismissal now without prejudice would only permit further delay in this case, and would be prejudicial to the Defendants and an imposition upon this court’s time.
2. The Plaintiffs during the pendency of this action have continuously engaged in obstructionism and delaying tactics, including refusal to permit officers of a party plaintiff to make discovery and the refusal of the Plaintiff to have transcribed and filed depositions of the Plaintiff for nearly a year, and then only after repeated motions before this court for directive orders.
3. This case has been under submission to the court upon the motion of the Defendants for summary judgment and cross motion of the Plaintiff for summary judgment for more than a year, and the brief of both parties for and in opposition to said motions have been filed, and this motion to dismiss is filed too late under CR 41.01.
4. The pleadings, exhibits, affidavits, and evidence in the record of the case clearly show that the Plaintiff cannot prevail in this action nor any subsequent action arising out of the same claim or transaction and it would be unfair and unjust to the Defendants to grant dismissal without prejudice and further delay the obvious outcome in the case.
5. The Defendants have been put to great expense in the preparation and defense of this action, and this case is ripe for decision by this court, all issues having been fully developed and presented by the motions for summary judgment filed by both parties herein and the decision of which will fully and finally dispose of this case.
6. The Defendants say that the motion to dismiss without prejudice is made for delay only.
7. The motion does not state sufficient grounds to justify putting the parties to additional expense and loss of time called for in the motion, and the identical issues would be raised in any new action filed by the Plaintiffs or either of them.
8. The coal and mineral rights which are the subject matter of this action are now and at all times during the pendency thereof been under lease to a mining company which has declined to mine coal from said property while the cloud created by this action is pending, and to permit the Plaintiffs to further delay, stall, and obstruct the proceedings in this case is unfair, inequitable, and prejudicial to the rights of the Defendants herein and its lessee.
9. Defendants cite and rely upon CR 41.01(2) and 5 Moores Fed.Prac. pp.1059-1066.
WHEREFORE, Defendants pray that the motion to dismiss without prejudice be overruled and for the entry of judgment in favor of the Defendants pursuant to Defendant’s motion for summary judgment heretofore filed and submitted to the court, and in the alternative, if said prayer is not granted, and the motion to dismiss without prejudice is sustained, Defendants pray for judgment against the Plaintiffs for all of their expenses in the defense of this action, including attorneys fees, and for all their costs herein expended.”

Voluntary dismissals are dealt with in CR 41.01. Subsection (2) thereof provides:

“By Order of Court. Except as provided in Section (1) of this Rule, an action, or any claim therein, shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this Section is without prejudice.”

The trial court does not have unlimited discretion under CR 41.01(2) to dismiss with or without prejudice. Jenkins v. City of Lexington, Ky., 528 S.W.2d 729 (1975).

The question then in this appeal is whether the judge of the Magoffin Circuit Court abused his discretion in dismissing the action without prejudice pursuant to the motion of Hall and Polan. Jenkins v. City of Lexington, supra.

Many things must be taken into consideration by the trial judge prior to entering an order dismissing an action without prejudice. Some of the salient inquiries that the judge may desire to make could be:

1. What preparation has the opposing parties and their counsel made for trial?
2. What was the lapse of time between the filing of the complaint and the date of the motion to dismiss?
3. Will a dismissal without prejudice be prejudicial to the opposing parties?
4. Will the dismissal without prejudice act as an adjudication of the issues made by the pleadings?
5. Should the order of dismissal contain terms and conditions?
6. Would any term or condition attached to the order prejudice the movant?

In essence, the basic criterion is whether the opposing party will suffer some substantial injustice or be substantially prejudiced. When we consider the full facts developed in this case, we do not find that the trial judge, in entering the order of October 15, 1975, or the order of March 21, 1978, abused his discretion.

We have limited this opinion to the consideration and determination of procedural issues and not substantive ones. In other words, we are not determining the effect of these orders on the rights, duties, privileges and responsibilities of the litigants as they are not before this court.

It appears that the Court of Appeals meant for respondents to pay the costs that had accrued in the circuit court, including as a part there an attorney’s fee for mov-ants’ counsel. The trial judge, in his order of March 21,1978, did provide that the costs in the circuit court should be paid by respondents. The trial judge did not, however, award an attorney’s fee. Evidently, he did not deem the award of attorneys’ fees to be proper. We cannot second guess the trial judge.

The decision of the Court of Appeals is reversed, and the judgment of the Magoffin Circuit Court is affirmed.

All concur, except LUKOWSKY and STEPHENSON, JJ., who concur in result only.


text:
    ESTATE OF Joe S. DOYLE et al., Floyd Street Investment Co. et al., and Charles Weisberg et al., Movants, v. COMMISSIONERS OF the SINKING FUND OF the CITY OF LOUISVILLE, the City of Louisville and the County of Jefferson, Respondents.
    Supreme Court of Kentucky.
    Oct. 30, 1979.
    Richard M. Trautwein and Gary D. Garrison, Barnett & Alagia, Marshall B. Hardy, Jr., Hardy, Logan & Hastings, Louisville, for movants.
    Robert F. Matthews and John H. Stites, III, Greenebaum, Doll & McDonald, Herman E. Frick, Asst. Director, Dept, of Law, Karl M. Walz, Asst. County Atty., Louisville, for respondents.
   OPINION AND ORDER

The Court, having considered the briefs of movants and respondents and having heard oral argument in this matter, is of the opinion that discretionary review was improvidently granted.

The order granting discretionary review, Ky., 585 S.W.2d 408, is vacated, and the case is remanded to the Court of Appeals for the issuance of its mandate.

STEPHENSON, AKER, CLAYTON and LUKOWSKY, JJ., sitting. All concur.

Entered October 30, 1979.

/s/ John S. Palmore

Chief Justice