author: SPURLOCK, Justice.

text:
    UNITED STATES of America and Ellison Stanley LeMaster, Appellants, v. Yvonne Jane LeMaster WAKEFIELD, Appellee.
    No. 18009.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.

      U. S. Dept, of Justice, Richard Vance, Asst. U. S. Atty., Fort Worth, for United States of America.
    Barbara C. Crampton and Holly Cramp-ton, Wichita Falls, for Ellison Stanley Le-Master.
    Law Offices of Troy Douthitt and William H. Harris, Wichita Falls, for appellee.
   OPINION

SPURLOCK, Justice.

This is a garnishment case. An ex-wife sued the United States to garnish her ex-husband’s military retirement benefits to enforce a judgment and award of the retirement pay and child support.

We reverse and dismiss in part, and affirm as modified in part.

To fully understand the points of error and rulings thereon, it is necessary to analyze the facts and judgment of the trial court in detail. When Yvonne LeMaster Wakefield and Ellison LeMaster were divorced, Mrs. Wakefield was awarded 43.75% of LeMaster’s military retirement benefits pursuant to the division of community property. LeMaster was also ordered to pay child support. She reduced to judgment $4,562.75 of delinquent child support and $9,231.81, her share of accrued retirement pay. She sued the United States under 42 U.S.C. § 659 to garnish the retirement pay and enforce the judgment. The United States admitted being indebted to LeMaster for $473.02 in accrued retirement pay at the time it answered, but denied military retirement pay was garnishable under 42 U.S.C. § 659. Both Mrs. Wakefield and the United States moved for summary judgment.

LeMaster intervened in the suit and, pri- or to judgment, agreed with Mrs. Wakefield to allot $100.00 per month from his share of the retirement pay to be applied to delinquent child support. The judgment provides that the aforenamed parties agreed by stipulation “that the issue of garnishment of child support shall drop from the case, unless default in the payment of the $100.00 per month child support arrearage or current child support occurs.” There is nothing in the record to indicate that the United States was a party to or acquiesced in the agreement. However, from a stipulation in the record it appears the allotment has been made. The trial court rendered judgment granting Mrs. Wakefield’s motion for summary judgment from which the United States and LeMaster appeal.

The trial court’s judgment recited the allotment agreement including the provision that the issue of garnishment for child support would “drop” from the ease. The judgment states the allotment agreement is “adopted and confirmed as the order of the Court.” However, the court made the following decree:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff-Garnishor does have and recover from Defendant-Garnishee 43.75% of the service retirement benefits, payable to her directly as same accrue monthly, and presently in the amount of $208.00 per month, plus incremental increases, effective as of March 1, 1977, and
“IT IS FURTHER ORDERED ADJUDGED AND DECREED that Plaintiff-Garnishor does have and recover from Defendant-Garnishee, the United States, 56.25% of the service retirement benefits owned by Ellison Stanley LeMas-ter, with monthly payments to be made to the Family Court Services, Court House, Wichita Falls, Texas, as they accrue, and presently in the amount of $267.44 per month, plus incremental increases, to be applied and disbursed by that agency pro tanto monthly in discharge of Plaintiff’s $13,794.56 judgment, until that judgment is paid in full, together with costs, as follows:
“(a) $100.00 per month to the discharge of child support arrearage judgment in the amount of $4,562.75, as the parties have agreed;
“(b) $167.44 per month, plus incremental increases, to the discharge of Plaintiff’s $9,231.81 judgment.
“For all of which let execution issue, together with costs of court taxed to Defendant-Garnishee, the United States.”

While the court gave lip service to the allotment agreement, it ordered garnishment for child support instead of ordering that the allotment be made. The difference is significant because garnishment of military pay involves suit against the United States and raises the issue of sovereign immuiiity. An order for an allotment does not involve suing the United States. It merely requires LeMaster to direct the United States Air Force to pay the retirement benefits to Mrs. Wakefield. No issue of sovereign immunity is raised. It is obvious that Mrs. Wakefield attempted to abandon her claim for garnishment for child support in exchange for the allotment. The trial court should not have accepted as its order the allotment agreement, which provided that garnishment for child support would be “dropped”, and then order garnishment for child support in its decree. Neither the United States nor LeMaster claim error on this point. LeMaster in his brief limits his appeal to garnishment to enforce Mrs. Wakefield’s judgment and award of community interest in retirement benefits. Therefore, appellants have waived any error in the judgment’s defect. Mrs. Wakefield is entitled to garnish military retirement pay for child support under 42 U.S.C. § 659.

Appellants claim the trial court erred in garnishing future accruing retirement pay. We agree. It is well settled that garnishment should be in the amount of the debt absolutely owed at the time the garnishee files his answer. Burkitt v. Glenney, 371 S.W.2d 412 (Tex.Civ.App.—Houston 1963, writ ref. n.r.e.). For LeMaster’s retirement pay to accrue he must remain alive. Therefore, the debt being garnished is contingently but not absolutely owed. The trial court erred in ordering garnishment of future accruing military retirement pay.

In its answer to Mrs. Wakefield’s application for writ of garnishment, the United States admits being indebted to LeMaster for $473.02. This was the amount of retirement pay absolutely owed at the time the United States answered. This is the amount which Mrs. Wakefield can garnish for child support. Therefore, we modify the portion of the judgment ordering garnishment for child support to order garnishment of $473.02 to be applied to delinquent child support. We affirm this portion of the judgment as modified.

Appellants claim the trial court erred in ordering garnishment because retirement pay is current wages under Texas law. Appellants argue that even though 42 U.S.C. § 659 allows garnishment of the United States for alimony and child support, garnishment is allowed only to the extent that the garnishor could garnish under state law. Watson v. Watson, 424 F.Supp. 866 (E.D.N.C., 1976). It is well settled that current wages are exempt from garnishment in Texas. Tex.Const. art. XVI, § 28, and Tex.Rev.Civ.Stat.Ann. art. 4099 (1966). Therefore, if military retirement pay is current wages in Texas, it is not garnishable under 42 U.S.C. § 659 for any purpose.

To be exempt from garnishment in Texas the fund in question must be wages and must be current. All parties have agreed that military retirement pay is wages. The dispute is whether military retirement pay is current wages. This court defined current wages as compensation for personal services, as are to be paid from time to time, as the services are rendered. J. M. Radford Grocery Co. v. McKean, 41 S.W.2d 639 (Tex.Civ.App.—Fort Worth 1931, no writ). The United States urges that because retired military personnel are subject to recall to active duty, their retirement pay is remuneration for services presently rendered. We do not agree.

Military retirement pay is based on the serviceman’s length of service and base pay upon retirement. It is not based on what the military perceives to be the present value of a retiree standing by for possible recall. The retirement benefits are paid for a period of time in which the retired serviceman was not recalled. Should he be recalled he would receive active duty pay instead of retirement pay. The retired serviceman receives retirement benefits because of his past military service, not because he is presently standing by waiting to be recalled. Therefore, the fact that he is standing by is not controlling and military retirement pay is not current wages under Texas law.

Appellants cite Prewitt v. Smith, 528 S.W.2d 893 (Tex.Civ.App.—Austin 1975, no writ) as holding that retirement pay is current wages and therefore not garnishable. We have reviewed Prewitt and found it does not control the question before us. Prewitt was not a garnishment case. Further, it dealt with constitutional and statutory provisions governing teacher retirement funds. These provisions have no application to military retirement benefits.

Appellants assert the trial court erred in holding 42 U.S.C. § 659 permits garnishment of military retirement benefits to enforce the community property division of a divorce. To garnish military retirement pay it is necessary to sue the United States, which is immune from suit absent its consent. It is well settled that waivers of sovereign immunity are to be strictly construed. In 42 U.S.C. § 659 the United States consents to be sued for legal obligations for alimony and child support. Thus, Mrs. Wakefield can garnish military retirement pay for child support. The issue presented is whether she can garnish to enforce her award and judgment for retirement pay pursuant to the community property division of her divorce under the federal statute.

This issue was recently decided by the Texas supreme court in United States v. Stelter, 567 S.W.2d 797 (Tex.1978). In Stelter, an ex-wife sued to garnish her ex-husband’s military retirement pay, a portion of which was awarded her in the property division of their divorce. The court held the award of retirement pay was not alimony under 42 U.S.C. § 659. The court concluded that Congress in its definition of alimony in 42 U.S.C. § 662(c) (1978 Supp.) excluded payments or transfers of property in a community property settlement, equitable property distribution, or other property division between spouses or former spouses.

The court reasoned since military retirement benefits earned during a marriage are community property which should be considered with all other property in making a just and right division upon divorce, retirement pay was not alimony under the federal statute. Because waivers of immunity are to be strictly construed and community property retirement pay is not alimony, the United States has not consented to garnishment of retirement pay to enforce a community property division. While we find the result just as unfortunate as the court did in Stelter, we must reverse the trial court on this point. The trial court had followed the El Paso court of civil appeals’ opinion in Stelter which was reversed by the Texas supreme court. The remedy for this situation is congressional amendment of the federal statute.

Considering all the above, we reverse those portions of the trial court’s judgment ordering garnishment of retirement pay for Mrs. Wakefield’s 43.75% of the retirement benefits and garnishment of LeMaster’s 56.25% applied to the arrearage in retirement pay owed Mrs. Wakefield. We dismiss these portions of LeMaster’s case. We modify that portion of the judgment ordering garnishment for child support to allow garnishment of $473.02 to be applied to delinquent child support. We affirm this portion of the judgment as modified.

We believe that by what we have written, all points of error presented in complaint of the judgment in the case are discussed. However, and in any event, all points of error have been severally considered and all points not specifically ruled on above are overruled.

So ordered.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    NATIONAL SAVINGS INSURANCE COMPANY, Appellant, v. James GASKINS and Jessica Gaskins, Individually and as next friends for Allison Gaskins, Appellees.
    No. 18041.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.

      Vial, Hamilton, Koch, Tubb, Knox & Stradley, and Fred S. Stradley and Gerald R. Powell, Dallas, for appellant.
    Cantey, Hanger, Gooch, Munn & Collins and Richard L. Griffith and Mark C. Hill, Fort Worth, for appellees.
   OPINION

HUGHES, Justice.

This appeal is from a summary judgment granted in a declaratory judgment action. National, an insurance company, wanted a determination of its duty to defend its insured and insured’s employee in a tort action. Gaskins, plaintiffs in the tort action, were also named as defendants in the declaratory judgment action. Gaskins moved for summary judgment claiming they had no justiciable controversy with National on its duty to defend. The trial court granted the motion and severed the cause so judgment would be final. National appealed.

We affirm.

To fully understand the points of error and the rulings on them, some background information is necessary. The insured is a pest control company. The Gaskins’ daughter was allegedly injured by substances used by a company employee in insect extermination work at the Gaskins’ apartment complex. The Gaskins filed a personal injury suit against the company, its employee and others not parties to this action.

There is no question the insured’s policy with National was in effect at the time of the alleged injury. In its pleadings National alleged it had no duty to defend the insured and its employee because the insured had failed to give timely notice, the incident was not one covered by the terms of the policy, the employee’s work was not an insured activity, and he was not a named insured. The only dispute between the insured and National is whether under the terms of the policy, National must defend them in Gaskins’ personal injury suit. As is usual in declaratory actions of this type, the plaintiffs in the suit pending against the insured were also made defendants.

However, the Gaskins sought to have themselves removed as parties to the action by a motion for summary judgment. They asserted since they were not parties to the insurance contract and did not care who, if anyone, defended the insured, they had no interest adverse to National, therefore, no justiciable controversy existed. Their summary judgment motion alleged that, as a matter of law, there was no justiciable controversy as to them; that they had no standing to be sued in this action; and that they were not necessary or proper parties to this action and their existence in it constituted a defect of parties under Tex.R.Civ.P. 93. The motion was granted on every ground urged by the Gaskins.

Basically, this suit hinges on whether at this point there is a justiciable controversy between National, the insurer, and the Gaskins. A declaratory judgment is not available unless there is a justiciable controversy between the parties. Under our constitution, Texas courts have no power to grant advisory opinions. Tex.Const. art. 5, § 8. The legislature cannot enlarge the constitutional jurisdiction of the courts and did not attempt to do so by passage of the Declaratory Judgment Act. Texas courts still cannot determine hypothetical or contingent situations or decide questions which are not essential to the resolution of an actual controversy, even if future adjudication will be necessary. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960).

In its first point of error National contends the trial court erred in granting summary judgment because the Gaskins did not sustain their burden of negating the existence of a justiciable controversy. They argue that a justiciable controversy exists because the Gaskins have an interest in whether they will be able to collect any judgment they may recover from the insured. Since Gaskins would have the right to sue National directly to collect an unsatisfied judgment against the insured, a real and adverse claim exists between them.

National relies on a U. S. Supreme Court case, Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941), which held, in a fact situation similar to the one here, there was justi-ciable controversy between the insurer and the injured party. There were three bases for the Court’s decision. First, state law permitted direct action by the injured party against the insurance company to satisfy an unpaid judgment obtained from the insured. Second, the injured party could prevent the policy lapsing by performing the notice conditions. Third, if the claimant were not kept in the suit, it would be possible for different courts to come to conflicting decisions in their interpretations of the policy.

National argues that the test for justicia-bility used by the U. S. Supreme Court in Maryland Casualty is virtually identical to the one followed in Texas. It claims it is not asking for an opinion on a hypothetical state of facts, and there is an actual controversy involving the Gaskins of sufficient immediacy to allow them to be parties to a declaratory judgment action. Regardless of whether the test is the same, the Texas Supreme Court has construed our constitutional prohibition against judicially rendered advisory opinions as forbidding decisions if the existence of a controversy is dependent on the happening of a future event. Firemen’s Insurance Company of Newark, N. J. v. Burch, 442 S.W.2d 331 (Tex.1968). The court held declaratory relief unavailable to determine a casualty insurer’s duty to pay a judgment which may be granted against its insured in threatened or pending litigation. Any determination of an insurer’s duty to pay would be hypothetical before judgment has actually been granted against the insured and the court’s opinion would therefore be purely advisory and beyond its jurisdiction.

National contends Gaskins are necessary parties under the Declaratory Judgment Act because they “have or claim any interest which would be affected by the declaration . . ..” Tex.Civ.Stat.Ann. art. 2524-1, § 11. The interest National alleges Gaskins have is in collecting any judgment they may receive in their suit against the insured. The court in the declaratory judgment action will determine whether timely notice was given in deciding whether there is a duty to defend. National reasons since notice was a past event not subject to change or mutation, unlike a pleading which could be amended to take an incident in or out of coverage under a policy, a court ruling on it is not dealing with a hypothetical situation. National argues since notice operates as a defense both to duty to pay as well as duty to defend, all those who have an interest in the resolution of an issue determinative of both should be parties because they have a claim or interest which would be affected.

National notes that those who are not parties to a declaratory judgment action cannot be bound by the results. Tex.Civ. Stat.Ann. art. 2524-1, § 11. Therefore, if Gaskins are not parties to this suit, they would not be bound by the judgment. If National obtains a determination its insured failed to give timely notice, and the Gaskins get a judgment against the insured and sue National to collect it, the notice defense would be relitigated because Gaskins are not bound by the prior declaratory action. The end result could be different findings by different courts on the same issue of timely notice.

National complains it is unjust for it to be bound by the declaratory judgment when a tort plaintiff against its insured is free to relitigate such an important issue. It argues all parties interested in the issues to be decided in the declaratory judgment action should be in the suit so as to prevent relitigation and uncertainty as to future rights and financial obligations. If claimants such as the Gaskins are not included in a declaratory judgment action, the usefulness of such actions to insurance companies will be greatly diminished.

While a court determination of whether or not notice was given would not be dealing with a hypothetical situation, and thus would not be giving an advisory opinion, whether or not the Gaskins would collect a judgment and thus have an interest which would be affected is hypothetical at this point. No- court has granted them judgment. The question of insured’s refusal or inability to pay has not yet arisen.

National’s arguments are all based on events that might or might not occur. If they occur, the Gaskins would have an interest in National’s action against its insured. But, if Gaskins lose their suit against the insured; if the court decides National has a duty to defend; or if the Gaskins do not have to sue National directly to satisfy a judgment, “a considerable amount of judicial wheel spinning for nothing” will result. Firemen’s Insurance Company of Newark, N. J. v. Burch, supra.

Whether there is a duty to defend is a matter determined by the policy provisions of the contract between an insurance company and its insured. Heyden Newport Chemical Corp. v. Southern General Insurance Co., 387 S.W.2d 22 (Tex.1965). While the allegations of a claimant’s petition in an action against the insured are considered in light of the policy provisions to determine the insurance company’s duty to defend the suit, Argonaut Southwest Insurance Company v. Maupin, 500 S.W.2d 633 (Tex.1973), claimants are not parties to the contract.

In an appeal from a ruling on a plea of privilege in a declaratory judgment action, the Dallas court of civil appeals held that the question of duty to defend was a contractual issue between insured and insurer. Since the injured parties were not parties to that contract, had disclaimed any interest in insurer’s obligation to defend and, further, had no right to demand the insurer defend their suit, there was no justiciable controversy between them and declaratory relief was unavailable. Slinker v. Superior Insurance Co., 440 S.W.2d 730 (Tex.Civ.App.—Dallas 1969, writ dism’d).

As National’s second and third points of error are both dependent on the existence of a justiciable controversy, they are overruled.

National’s fourth point of error alleges the Gaskins are bound by a judicial admission of interest in the subject matter of the action by a statement made in their summary judgment affidavits. Both affidavits stated “[i]n fact, it would seem to me to be my advantage in my lawsuit pending in the 17th Judicial District Court if there be no attorneys representing Mr. Grace and Mr. Temple at all.” A statement must be clear and unequivocal in order to be considered a judicial admission. Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458 (Tex.1969). These statements are merely impressions or opinions and as such are insufficient for judicial admissions. Even if they were to constitute a judicial admission, alone they do not create a justiciable controversy. When the quotation is read in context with the rest of the paragraph, it emphasizes to us the lack of adversity, at this point, of Gaskins and National.

Judgment affirmed.


author: RALEIGH BROWN, Justice.

text:
    Doyle C. FINE, Relator, v. Ruth PAGE, District Clerk of Comanche County, Texas and Don McDonald, Official Court Reporter, District Court of Comanche County, Texas, Respondents.
    No. 5233.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 5, 1978.
    Rehearing Denied Nov. 2, 1978.
    Doyle C. Fine, pro se.
    Leslie B. Vance, Dist. Atty., Clifton, Ben D. Sudderth, Comanche, for respondents.
   RALEIGH BROWN, Justice.

This is a consolidation of two original mandamus proceedings filed in this court by relator, Doyle C. Fine, against Ruth Page, District Clerk of the 220th Judicial District Court of Comanche County, Texas, and Don McDonald, Official Court Reporter for the 220th Judicial District Court of Comanche County, Texas, respondents, for the purpose of enforcing relator’s rights to the transcript and statement of facts in Cause No. 12,194 on the docket of the 220th Judicial District Court of Comanche County. We hold that relator Fine is entitled to the relief sought.

Relator’s timely filed motion for new trial was overruled by the trial court on June 15, 1978. Thereafter, on July 10, 1978, Fine filed an appeal bond in the District Court of Comanche County in the amount of $2,500 with Tarrant County Sureties. The relator had previously refused to pay accrued costs as of that date. He was verbally informed by the Deputy Clerk of Comanche County on July 10 and again the following day by Ruth Page, District Clerk, that the appeal bond would not be accepted or approved. The bond contained a certificate of approval which Ruth Page, District Clerk, refused to sign.

The plaintiffs in Cause No. 12,194, from which cause relator is attempting to appeal, filed a motion in the trial court on July 11, 1978, praying that the relator’s appeal bond be disapproved, and that the relator pay one-half of the estimated costs of the statement of facts in advance before the Court Reporter began preparation of the requested statement of facts. The motion was set to be heard on July 26, 1978, and an order was signed July 28, 1978, forty-three days after relator’s motion for new trial was overruled. The order required relator to file an appeal bond in the amount of $3,000 with either a corporate surety or two or more good and sufficient sureties residing in Comanche County, Texas.

Relator did not comply with the order. Respondent, Ruth Page, District Clerk, therefore, refused to prepare the transcript and Respondent, Don McDonald, Official Court Reporter, refused to prepare the statement of facts in absence of advance payment of one-half of the estimated costs thereof. Relator’s right to the writs sought depends upon the application of appropriate Rules of Civil Procedure, particularly Rule 354(a), T.R.C.P., and Tex.Rev.Civ.Stat.Ann. art. 2324 (Supp.1978).

Rule 376, T.R.C.P., provides in part:

“Upon the filing of the costs bond or deposit, the clerk of the trial court shall prepare under his hand and seal of the court for transmission to the appellate court a true copy of the proceedings in the trial court . . .”

The Court Reporter is to prepare the statement of facts upon request and cannot insist upon cash in advance as a condition thereto when a bond is filed sufficient to perfect the appeal. Tex.Rev.Civ.Stat.Ann. art. 2324 (Supp.1978); Wells v. Wells, 570 S.W.2d 224 (Tex.Civ.App.—Houston (1st Dist.) 1978); O’Brien v. Gibbs, 555 S.W.2d 199 (Tex.Civ.App.—Dallas 1977, no writ); McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App.—Houston (1st Dist.) 1976, no writ); City of Ingleside v. Johnson, 537 S.W.2d 145 (Tex.Civ.App—Corpus Christi 1976, no writ). The appeal bond is the security for the court reporter’s costs. Rule 354(a), T.R.C.P.

Both respondents maintain that the relator has not filed a bond which complies with Rule 354(a), T.R.C.P., and therefore they are not required to fulfill their mandatory duties. We disagree.

Rule 363, T.R.C.P., provides in part:

“When a bond is required by law the appeal is perfected when the bond or affidavit in lieu thereof has been filed,

Rule 354(a), amended effective January 1, 1978, governs the requirements of such bond, and provides a procedure in thé trial court for the increase or decrease of the bond required to perfect the appeal.

Rule 354, before January 1, 1978, provided that the appeal was perfected when the appellant filed a bond “approved by the clerk”. Amended Rule 354(a) dispenses with the necessity of approval if a bond is filed “in the sum of $500 unless the court fixes a different amount upon motion of either party”. The last sentence of Rule 354(a) provides that “(u)pon motion of either party the court may increase or decrease the amount of the bond required.” Under such amended rule, therefore, the appeal is perfected when the appellant files a bond in the amount of $500, regardless of whether it is approved by the District Clerk, unless the trial court, upon motion of either party, fixes a different amount. In such case, the appeal is perfected when the appellant files a bond in accordance with the trial court’s order.

Rule 356(a) provides:

“Whenever a bond for costs on appeal is required, the bond shall be filed with the clerk within thirty days after rendition of judgment or order overruling motion for new trial, or after motion for new trial is overruled by operation of law

Rule 354(a) makes no provision for an extension of time to file an appeal bond. The thirty day period for filing the bond is mandatory and cannot be extended by the trial court. Glidden Co. v. Aetna Cas. & Sur. Co., 155 Tex. 591, 291 S.W.2d 315 (1956); Metal Enterprises, Inc. v. Don Love, Inc., 559 S.W.2d 90 (Tex.Civ.App.—Houston (1st Dist.) 1977, no writ). A trial court’s delay in acting upon a motion to increase or decrease the required bond, therefore, does not justify an appellant’s failure to file an appeal bond within the thirty day period. See King v. Payne, 156 Tex. 105, 292 S.W.2d 331 (1956) and Wells v. Wells, 566 S.W.2d 124 (Tex.Civ.App.—Houston (14th Dist.) 1978, no writ) (delay in acting upon a contest of an affidavit in lieu of a bond does not operate to extend the time for filing a bond). We hold that a trial court’s action to increase or decrease the amount of the bond required to perfect appeal after the expiration of the thirty day period is of no effect. After the expiration of the thirty day period, an attack on the sufficiency of the bond can be brought solely in the appellate court under Rule 365, T.R.C.P.

Relator filed a bond in an amount of at least $500 and such bond was sufficient to perfect the appeal in the absence of a trial court order within the thirty day period directing that a bond in a different amount be filed. Ruth Page, District Clerk, has a mandatory duty, therefore, to prepare the transcript and Don McDonald, Court Reporter, has a like duty to prepare the statement of facts upon request. Relator has shown a clear right to have the writs issued as prayed.

We assume that Ruth Page, District Clerk of Comanche County, and Don McDonald, Official Court Reporter, District Court of Comanche County, will prepare the transcript and statement of facts respectively and writs of mandamus will issue only if either fails to discharge her or his duty.


author: McCLOUD, Chief Justice.

text:
    The CITY OF DALLAS, a Municipal Corporation, Appellant, v. DALLAS IRS CO., a Partnership, Appellee.
    No. 5163.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 12, 1978.
    Rehearing Denied Nov. 2, 1978.

      Carroll R. Graham, Asst. City Atty., Dallas, for appellant.
    Tom J. Stollenwerck, Moore, Peterson, Bauer, Williams & Stollenwerck, Dallas, for appellee.
   McCLOUD, Chief Justice.

In this impairment of access case, the plaintiff, Dallas IRS Co., recovered $40,864 which the jury found was the reduced market value of plaintiff’s leasehold estate resulting from the closing of an abutting street by defendant, the City of Dallas. Both plaintiff and defendant attack the judgment. The City contends the court erred in overruling its motion for judgment non obstante veredicto because there is no evidence showing a substantial and material impairment of access to plaintiff’s premises; the evidence establishes as a matter of law there was no material and substantial impairment of access; there is no evidence of a reduction in the market value of plaintiff’s property resulting from the deprivation of any legal right caused by the closing of the street; and there is no evidence plaintiff sustained any legally compensable damages. Plaintiff by counterpoint contends the court did not err in overruling the City’s motion for judgment non obstante veredicto, and by cross-points asserts the court erred in overruling its motion for instructed verdict because as a matter of law there was a “taking” of plaintiff’s property; a tendered special issue inquiring as to the value of plaintiff’s property on the date of the taking was not submitted by the court; and the damages awarded by the jury were inadequate. We affirm.

Plaintiff, the owner of a fifty year “air space rights” lease, constructed a four floor office building above a seven level parking garage located at “1600 Patterson Street” in the City of Dallas. The lease provided for access to the building from street level. The building is bounded on the west by Bullington Street, on the north by Patterson Street, and on the east by Ervay Street. The principal pedestrian entrance is on Patterson Street. During the construction of the building, a receiving room, recessed loading dock, ramp, and canopy cover were built adjacent to Bullington Street. A freight elevator was installed near the dock. In 1971, plaintiff entered into a lease with the General Services Administration of the Federal Government, leasing a portion of the building to be used by the Environmental Protection Agency. During the term of the lease, the City of Dallas closed Bulling-ton Street where it abutted the loading dock, lowered the grade, and converted it into an entrance ramp to an underground truck terminal. Following the closing of Bullington Street, while the lease was still in effect, the EPA vacated the building. The witness, Jones, Director of Space Management Division of the General Services Administration, testified that EPA vacated the leased premises after Bullington Street was closed because there was not adequate or suitable freight elevator service. He stated it would not be suitable freight elevator service for vehicles to stop on Patterson Street and “dolly” or cart goods down to the freight elevator.

The court in City of Waco v. Texland Corporation, 446 S.W.2d 1 (Tex.1969), while considering Section 17 of Article 1 of the Texas Constitution which provides that, “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made . . .”, held that property has been “damaged” for a public use when access is materially and substantially impaired even though there has not been a deprivation of all reasonable access. Also, the court reannounced its prior holdings that whether access has been materially and substantially impaired is a question of law. See also City of San Antonio v. Olivares, 505 S.W.2d 526 (Tex.1974). In Texland, the abutting street was not closed but large piers supporting a viaduct were constructed in the street in such a manner that they substantially interfered with vehicles attempting to reach the landowner’s loading dock. In a concurring opinion, Justice McGee stated:

“. . . Obviously, under the rule announced by the Court today, a whole street cannot be closed by the construction of a public improvement without compensation being paid to abutting landowners as was done in Archenhold Automobile Supply Co. v. City of Waco, 396 S.W.2d 111 (Tex.1965). ...”

In the instant case, the converted ramp leading to the underground terminal is now approximately eight feet below street level at the point where plaintiff’s receiving room and freight elevator are located. The witness, Jones, testified that the GSA would not consider leasing the building in the future because the closing of Bullington Street resulted in unsuitable freight elevator service in the building. We hold that plaintiff has established as a matter of law substantial and material impairment of access and that there has been a damaging of the property for a public use.

The City argues there has been no material and substantial impairment of access because plaintiff’s only asserted damage is the inability to park parallel on Bullington Street for the purpose of loading and unloading at its dock, and plaintiff had no right to use the street in such manner for its private use. The cases cited by the City are distinguishable. This is not a case where the property owner seeks compensation for removal of facilities located in a city street. Lysaght v. City of Fort Worth, 359 S.W.2d 128 (Tex.Civ.App.—Fort Worth 1962, writ ref’d) and City of Fort Worth v. Southwest Magazine, 358 S.W.2d 139 (Tex.Civ.App.—Fort Worth 1962, writ ref’d n. r. e.), nor is this a case involving a noncom-pensable exercise of police power by the City. See DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965). Our Supreme Court, in attempting to define the line between police power and eminent domain, has refused to “compartmentalize” what is manifestly illusory. City of Austin v. Teague, 570 S.W.2d 389 (Tex.1978). Here, an abutting street, previously used by vehicles loading and unloading, has been closed as a thoroughfare. Plaintiff’s access rights have been materially and substantially impaired. The damages sustained by plaintiff were not common to the general public and we hold plaintiff should be compensated.

Both plaintiff and the City complain of the amount of damages awarded by the jury. The City says there is no evidence to support the award and plaintiff by cross-point argues the award is inadequate. There was much testimony concerning the effect of closing the street. The City attempted to show that after the closing of Bullington Street vehicles could park on Patterson Street and “dolly” freight approximately 100 feet down the sidewalk to the existing freight elevator. The City’s expert witness stated no damages resulted from the closing. Plaintiff’s expert witness testified to damages of $2,900,000. There is some evidence to support the jury’s award. After considering the entire record, we hold the award is not inadequate.

By cross-point, plaintiff argues the City “abandoned” its rights in and to Bull-ington Street when it converted the dedicated street to an entrance to a “private” underground terminal. Plaintiff contends the abandoned street reverted to abutting landowners and the City actually took or physically appropriated the property when it converted the previous thoroughfare into an entrance to the terminal. We disagree. First, we hold the evidence conclusively establishes that the street was converted for a public use. The terminal was constructed by the City to eliminate “across the curb traffic” and clear up congestion. Plaintiff requested no issue on abandonment and the evidence does not conclusively establish abandonment by the City. Rule 279, T.R. C.P.; Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922 (Tex.Comm.App.1942); Hicks v. City of Houston, 524 S.W.2d 539 (Tex.Civ.App.—Houston (1st Dist.) 1975, writ ref’d n. r. e.). We overrule plaintiff’s remaining cross-points urging there was an actual “taking” of the property and, therefore, the court erred in not submitting plaintiff’s tendered issue inquiring as to the value of plaintiff’s property on the “date of taking”. This is not a “taking” of property case. This is a “damaging” of property case. DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.1965).

We have considered and overrule all points of error and all cross-points. The judgment of the trial court is affirmed.

DICKENSON, J., not participating.


author: JONES, Justice.

text:
    Emmanuel Ray ROBERTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 10, 1978.
    Jack Emory Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Emmanual Ray “Rusty” Roberts appeals from judgments of conviction imposing a prison term of 10 years on a charge of first-degree robbery and a sentence of 20 years for first-degree rape in conformity with a jury’s verdict. KRS 515.020(l)(a) and KRS 510.040(l)(a). The jury also found Roberts guilty of two counts of assault and fixed his punishment at a prison term of 6 months on each charge. The trial court directed that the sentences on first-degree robbery and first-degree rape be served consecutively. He directed that the sentences on the two convictions for assault be served concurrently with the sentences imposed on the charges of first-degree robbery and first-degree rape. Not satisfied with the result, Roberts prosecutes this appeal.

The principal question presented is whether the trial court erred in overruling Roberts’ motion to suppress statements that he made to the police and the photo identification evidence.

It is necessary to briefly summarize the facts relevant to a determination of the questions presented. On January 13, 1977, at approximately 5 P.M., a young man armed with a pearl-handled pistol entered Jim’s Salon Shoes in Newport, Kentucky. He told Jim Holschuh and two saleswomen in substance that “This is an armed robbery.” At gunpoint he marched Julie Staggs and Peggy Mertle, saleswomen, to the rear of the store where Holschuh was seated and demanded the contents of the cash register. After spraying Holschuh with mace the intruder took the contents of the cash register, Holschuh’s Rolex watch, ring and wallet. He then raped Peggy Mertle, struck Julie Staggs in the face three times, and left. As soon as he had gone the Newport police were notified. Shortly thereafter they arrived at the scene. Holschuh and his employees described the assailant as a “male, white, 17 years, slender build, dark green skull cap, with light blonde hair sticking straight down.” The next day the three victims aided police in compiling a composite drawing of the gunman. On January 15, 1977, the police went to the home of Roberts, who was 16 years old, took him into custody, and drove him to the police station for “investigation purposes.” Detective Earl Roesel, who assisted in taking Roberts into custody, testified that Roberts was sought for questioning by reason of “information received from a reliable source.”

The juvenile court judge issued an order permitting police to photograph Roberts. He based that order on a charge made two months earlier of Roberts’ violation of probation. After Roberts was photographed, his picture was included in a photographic display containing eleven photographs. This display was shown to the three victims. All of them identified Roberts’ photograph as that of the assailant. Roberts was then formally charged with the offenses upon which he was eventually convicted. Two days after the robbery, rape and assault the police officers returned to Roberts’ home for further investigation. The authorities talked to Roberts’ roommate, Warren Miller. While they were engaged in conversation with Miller they saw a Rolex watch matching the description of the watch taken from Jim Holschuh. Because it was in plain view, and based upon the information as to the description of the watch, the officers seized it and arrested Miller. They charged him with receiving stolen property. Subsequently, when the watch was shown to Holschuh he identified it as the one taken from him. A short time later, the officers told Roberts of these events, whereupon Roberts told the officers that he had put the watch in his bedroom. He stated that Miller knew nothing about the robbery. He admitted to the charges against him and told the officers the escape route that he took in going to his home. He stated that he dropped the diamond ring and threw the wallet in a ditch. Roberts also told the officers that the gun he used in the holdup was buried in the snow on his roof. Subsequently, the officers obtained a search warrant. During their search they found a pearl-handled pistol later identified as one stolen from Peter Garrett 10 days earlier. The officers found the gun on the roof under the snow as Roberts told them it would be. Roberts later claimed to have bought the gun from Wallace Glen Hoskins, who was arrested in connection with another armed robbery some 5 hours before the police officers confronted Roberts.

Roberts contends that his arrest was illegal because there was initially no probable cause to believe he had committed an offense. He argues that the evidence he sought to suppress was “fruit of a poisonous tree,” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, because it was obtained following the unlawful arrest, and that its admission violated his constitutional right to be free from illegal seizure. Prior to the trial and upon Roberts’ motion to suppress any statements he had given to any police officers and certain evidence taken from his home at 1011 York Street, Newport, Kentucky, the trial court conducted a comprehensive hearing on the matter. He made extensive findings of fact and conclusions of law. He made 22 specific findings relating to Roberts’ contentions that such evidence was inadmissible. He concluded as a matter of law that none of the constitutional or other legal rights of Roberts were violated; that the statements or admissions made to the police officers by Roberts were voluntary and without force or coercion. He found also that the evidence admitted into the record at that hearing was properly and legally obtained by the police officers and that Roberts had failed to present sufficient probative evidence to sustain his motions.

This court finds Roberts’ reliance on Wong Sun and its progeny misplaced. Detective Roesel testified that a “reliable source” led police officers to Roberts’ home on York Street. The close proximity of the time between the arrest of Wallace Hos-kins, from whom Roberts obtained his gun, and Roberts’ arrest, supports the inference that Hoskins provided the information which led the police authorities to Roberts’ home. Furthermore, Roberts’ description given to the police by the three victims was sufficient to support probable cause. United States ex rel. Burbank v. Warden, Ill St. Pen., C.A. 7th, 535 F.2d 361 (1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 750, 50 L.Ed.2d 758, rehearing denied, 430 U.S. 911, 97 S.Ct. 1187, 51 L.Ed.2d 589 (1977). From time immemorial the law in this jurisdiction provides that if an officer has reasonable grounds to believe that a felony has been committed he can make an arrest without a warrant. The totality of the evidence supports the trial court’s finding that Roberts’ arrest was based on probable cause to believe he had committed the offenses with which he was charged. This was so before the victims identified his photograph. Because Roberts.was legally arrested, it was not error for the trial court to admit the evidence resulting from his arrest.

Roberts next contends that the trial court erred in excluding certain evidence offered by him to corroborate his claim that his admissions to the police authorities were coerced. Roberts testified that he fabricated the incriminating statements in response to a threatening remark reportedly made by Officer Gugel that “You’ll go downstairs and then you’ll cooperate.” To bolster his interpretation of Gugel’s alleged remark, Roberts’ sister Linda Polley, proposed to testify that she had seen Gugel grab her brother’s arm as they left juvenile court in April, 1977, almost causing him to fall. Roberts insists that the exclusion by the trial court of this proffered testimony amounts to a denial of his constitutional right to present evidence relevant to his defense. There is absolutely no merit in that argument. Officer Gugel questioned Roberts on January 15, 1977, over three months before the incident Ms. Polley describes. Therefore, her testimony, had it been admitted, had no tendency to prove that Roberts reasonably construed Gugel’s statement as a threat. Accordingly, its exclusion by the trial court as irrelevant was proper.

This court has reviewed the record, the briefs, heard oral arguments, and is of the opinion that Roberts had a fair and impartial trial. This court is not willing to substitute its judgment for that of a jury who heard all of the evidence, the instructions of the court and arguments by counsel, and observed the demeanor of the witnesses.

It is the opinion of the court that the judgment should be and it is affirmed.

All concur.


author: HOGGE, Judge. MARTIN, Chief Judge,

text:
    Donald RICHMOND, Administrator of the Estate of Peter Richmond, Deceased, Appellant, v. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, the Kentucky Engineering Company, W. George Keat, Jr., Holloway & Son Construction Company, Inc. and Engineering Services, Inc., Appellees.
    Court of Appeals of Kentucky.
    Dec. 23, 1977.
    Original Opinion Withdrawn and Reissued June 23, 1978.
    Discretionary Review Denied Nov. 14, 1978.

      Jack L. Richardson, Jr., Jack L. Richardson, III, Allen P. Dodd, III, Louisville, for appellant.
    Robert G. Breetz, Robert G. Stallings, Marshall B. Woodson, Jr., Louisville, for appellees.
    Before MARTIN, C. J., and HOGGE and VANCE, JJ.
   HOGGE, Judge.

This is an appeal from a summary judgment entered in favor of appellees, defendants below. The lower court found that the plaintiff’s decedent had been contributorily negligent as a matter of law.

Appellees have asserted several other grounds upon which summary judgment could properly have been granted. It is the duty of the reviewing court to consider all the grounds raised, and to affirm the judgment if it should properly have been entered on any of the grounds raised.

On July 18, 1972, an unusually hard rainfall caused a large pool of water to collect in, and overflow a drainage ditch that flowed through the backyards of several houses in the Plantation Hills Subdivision. The ditch terminated at a vertical culvert designed to direct the flow of water through a pipe under Rhett Court to an outlet on the opposite side of the street. However, on the day in question, the amount of water was more than the culvert and pipe could accommodate, and the water flowed over the top of the culvert, through the lawn, and onto the street.

The submerged culvert was not visible from the surface. Some time after the rain, the decedent and other children were riding rafts or tubes on the pool that had collected behind the culvert. While engaged in this activity, the decedent, a fourteen-year-old boy, was sucked through the open culvert into the pipe where he drowned.

The decedent’s father brought this action alleging that the drainage system had been defectively designed and constructed. Upon the defendants’ motion, the trial court entered a summary judgment, finding that the decedent had been contributorily negligent as a matter of law.

Under CR 56.03, summary judgment is proper only where there is no issue of material fact. The deposed testimony of experts was directly contradictory on the issue of whether there would have been any visible turbulence that could have alerted the children to the danger at the entrance to the culvert. Therefore, summary judgment was proper only if it may be said that a fourteen-year-old boy is contributorily negligent as a matter of law by playing in a pool of water that had collected.

In the absence of any visible warning that a tremendous suction force was operating within the pool, such a body of water would present little danger to one who, like the decedent, was an experienced swimmer. The law in this respect was set forth in Beam v. Calvert, Ky., 277 S.W.2d 35, 37 (1955). The court stated:

It is fundamental . . . that “ ‘contributory negligence is not imputable to anyone for failing to look out for danger which he has no reasonable cause to apprehend.’ ” It is true one is required to foresee and provide against what usually happens and what is liable to happen, but one is not bound to guard against what is unusual and unlikely, or what, as it is sometimes said, is only remotely probable. [Emphasis ours.]

The court went on to state:

Even where one has exposed himself to a known danger, before he will be found to have been guilty of contributory negligence as a matter of law and a recovery denied on such basis, the danger must have been so imminent and obvious that a person of ordinary prudence, under like circumstances and with like knowledge, would not have subjected himself to it. [Emphasis ours.]

Applying the above law to the case at hand, we must ask ourselves the following questions: Did the decedent have reasonable cause to apprehend the danger of being sucked into the culvert? Was this something that usually happens, or was it something that is unusual or unlikely? Was the danger of being sucked into the culvert “imminent and obvious?”

As a matter of common knowledge, the incidence of drowning as a result of being sucked into a culvert is rather low, and would have to be termed unusual rather than usual. Whether the danger was so “imminent and obvious” as to give rise to a reasonable apprehension of the danger, is an issue of fact on which there was contradictory testimony.

Experts, David T. Y. Kao and David K. Blythe, stated in their report that “the enormous magnitude of drag (suction) force will be invisible and will be beyond the recognition of an ordinary person.” Another expert, David L. Daugherty, reported that there would have been turbulence over the entrance to the culvert.

Whether this turbulence existed and whether such turbulence, if any, would have been sufficient to alert an ordinary and prudent fourteen-year-old child to the danger, are questions of fact to be decided by the trier of fact. Thus, we are of the opinion that it was error to grant summary judgment on the basis of the conclusion that the decedent was contributorily negligent as a matter of law.

However, it is well settled that a correct decision will not be disturbed merely because it was based upon incorrect grounds. Haddad v. Louisville Gas and Electric Company, Ky., 449 S.W.2d 916 (1969).

This court is of the opinion that a summary judgment in favor of two of the defendants was proper on grounds other than the plaintiff’s contributory negligence.

First, with respect to appellee, Louisville and Jefferson County Metropolitan Sewer District, this court is of the opinion that this action is barred by governmental immunity. The law concerning municipal immunity is influx, and recent opinions have not been totally consistent. However, all the cases indicate that sovereign immunity still exists, although limited in scope.

In the ease of Gnau v. Louisville and Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961), it was held that the Sewer District is an agency of the state, and is cloaked with governmental immunity.

In Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), the court stated that it was no longer necessary to consider whether the activity was governmental or proprietary. However, in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), the court stated at page 643:

It has been held in other jurisdictions that a municipality shall be liable in those situations where a private person would be liable. ... A different situation arises when a claimant seeks to hold the city liable for a risk which is inherently part of the carrying on of the function of government, such as its failure to provide fire protection, police protection or, as here, flood protection. We refer only to the ultimate failure and not to the situation where the city is engaging in activities with the citizen on a person to person basis as any other private citizen might do. Where the act affects all members of the general public alike, it would be unreasonable to apply to it the broad principles of tort liability for the reasons previously stated in this opinion. But, when the city, by its dealings or activities, seeks out or separates the individual from the general public and deals with him on an individual basis, as any other person might do, it then should be subjected to the same rules of tort liability as are generally applied between individuals. This, likewise, is true when the negligent act of the city per chance falls upon the isolated citizen as distinguished from the general public. When that act does not involve the ultimate function of government, the city should be required to respond in damages. This is true without regard to whether the function would have been classified as proprietary or governmental under our old classifications. [Emphasis ours.]

Therefore, government immunity still exists where the activity involved the ultimate function of government, unless the city was dealing with the injured party on an individual basis. Furthermore, even where the activity does not involve the ultimate function of government, the city is liable only if the city’s negligence resulted in injury to isolated citizens rather than to the general public.

This is a rule that seems quite close to the earlier distinction based on whether the activity was governmental or proprietary. More recently, the court has skirted the issue of governmental immunity and held the city not liable for damages to citizens on the basis that the city owed no duty to the injured party; thus, there was no negligence. City of Russellville v. Greer, Ky., 440 S.W.2d 269 (1969), Frankfort Variety, Inc., et al. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977). However, we are of the opinion that the case should be resolved under the principles laid down in Louisville Seed Company, supra.

In the present case, it has been proven that the Louisville and Jefferson County Metropolitan Sewer District has assumed an ultimate function of government by providing sewer services. As shown in this case, all construction plans for sewers require prior approval by the MSD. Further, MSD requires the acceptance by the District for maintenance purposes after sewers are constructed. In cases where an ultimate function of government has been proven, according to Louisville Seed, supra, a citizen may recover only if the governmental agency dealt with him on an individual basis. Here, it was neither alleged nor proven that the sewer district dealt with the appellant on a personal basis.

Therefore, we hold that summary judgment dismissing the claim against the Louisville and Jefferson County Metropolitan Sewer District was proper, on the grounds of sovereign immunity.

With respect to the claim against Holloway and Son Construction Company, Inc., this court is of the opinion that summary judgment should properly have been entered on the grounds that the action is barred by the statute of limitations.

Holloway was not named on the original complaint. However, the complaint was subsequently amended to supplant appellee for a “John Doe” defendant named in the original complaint.

CR 4.15 allows an action to be filed against an unnamed defendant. However, it requires that the complaint describe the unnamed party. The appellant’s complaint did not describe the “John Does” by function or relationship to the plaintiff’s claim or in any other manner.

Furthermore, CR 4.05 provides that an unknown defendant shall be the subject of constructive service of process. However, KRS 454.165 provides that the court can not achieve in personam jurisdiction over persons who are the subject of constructive service of process. Therefore, even had the appellant described the defendant, the court could not have achieved jurisdiction over his person until long after the statute of limitations had run.

Appellees, W. George Keat, Jr. and the Kentucky Engineering Company, claim that they are entitled to summary judgment on the grounds that the record fails to show any negligence on their part. However, after reviewing the record, this court is of the opinion that there is a sufficient question of fact on this issue to preclude summary judgment.

Keat and Kentucky Engineering designed and submitted the plans for the construction of the culvert in which the decedent drowned. There was expert testimony that the system was negligently designed. The experts were of the opinion that the culvert pipe was too small to function adequately; that it was not designed with proper concern for human safety; and based on this record, the catch basin did not comply with accepted standards of design or construction. It was the experts’ conclusion, therefore, that a trap was created and contributed to the failure of the system.

The judgment as to appellees, Louisville and Jefferson County Metropolitan Sewer District and Holloway and Son Construction Company, Inc. is affirmed, and reversed as to appellees, W. George Keat, Jr. and Kentucky Engineering Company, and is remanded to the Jefferson Circuit Court for further proceedings consistent with this opinion.

VANCE, J., concurs.

MARTIN, C. J., concurring in part and dissenting in part.

MARTIN, Chief Judge,

concurring in part and dissenting in part.

I agree with so much of the decision as affirms the dismissal of the claim against the Louisville and Jefferson County Metropolitan Sewer District and Holloway & Son Construction Company, Inc. I would, however, go further and dismiss the complaint as to W. George Keat, Jr., and Kentucky Engineering Company.

The majority opinion places great weight upon the report of David T. Y. Kao and David K. Blythe. The argument advanced and further supported by another expert, David L. Daugherty, is that the culvert was improperly designed by W. George Keat, Jr. I read these reports differently. I further believe that because the trial court did not rely upon them in making his determination, we should not give them the credence that the majority opinion gives them. These reports are unsworn, and the witnesses have not been cross-examined. I believe that it is too early to reach the conclusion that there was a defect in the design of the culvert.

The record shows that Keat, an employee of Kentucky Engineering, was the initial design engineer for the project. This design prepared by Keat was approved by Louisville and Jefferson County Metropolitan Sewer District before the construction of the culvert began. With this approval by the Sewer District, I believe that any liability on the part of Keat individually for negligent design was extinguished. Responsibility for the design now rests with the Sewer District. At this point, Keat is entitled to any defense available to the Sewer District, including governmental immunity.

The record goes even further, and establishes that not only was Keat not paid for his engineering services, but he did not supervise any of the construction in the project. The reports indicate that if, in fact, the design of the culvert was defective, the construction of the culvert also was defective. Because Keat had no opportunity to supervise the installation and construction of the culvert and lines leading into the culvert, I do not believe that we can hold him as the only defendant. As pointed out in City of Louisville v. Padgett, Ky., 457 S.W.2d 485 (1970), changes made during construction at the direction of the public agency for whom the work is being done does not constitute negligence on the part of the contractor.

The court in Sherman v. Miller Construction Co., 90 Ind.App. 462, 158 N.E. 255, 256 (1927), best answered the dilemma which we now face in the present case:

. It would, indeed, be a strange rule of law which would excuse the act of the official in passing upon said plans and adjudging them sufficient, and yet would hold the person who drew such plans liable in damages, because of an alleged incompleteness therein, to some person who might be injured as a result of a building having been built according to such incomplete plans, .

I would, therefore, affirm the judgment of the trial court or, in the alternative, remand the case to the circuit court to resolve the issue of design negligence.


author: HAYES, Judge.

text:
    William Eugene ROBINSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. William C. ROBINSON (Deceased) and Robert Robinson, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 7, 1978.
    Rehearing Denied June 9, 1978.
    Discretionary Review Denied June 27 and Nov. 14, 1978.

      Jack Emory Farley, Public Defender, Commonwealth of Kentucky, Linda K. West, Asst. Public Defender, Frankfort, for appellant, William Eugene Robinson.
    Jack Emory Farley, Public Defender, Commonwealth of Kentucky, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellants, William C. and Robert Robinson.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Rickie L. Pearson, Asst. Attys. Gen., Frankfort, for appellee.
    Before HAYES, HOGGE and REYNOLDS, JJ.
   HAYES, Judge.

William C. Robinson and his two sons, William Eugene and Robert, were jointly indicted for third degree burglary (KRS 511.040) and two counts of knowingly receiving stolen property (KRS 514.110). Robert was additionally indicted as a persistent felony offender (KRS 532.080). William C. was convicted of one count of knowingly receiving stolen property and was sentenced to five (5) years in the penitentiary. William E. was convicted of the third degree burglary and both counts of knowingly receiving stolen property and he was sentenced to five (5) years on all three counts. Robert was convicted on one count of knowingly receiving stolen property and as being a persistent felon. The Robinson family appeal their convictions claiming numerous (10) grounds upon which the trial court committed reversible error.

The home of Reverend Rick Kirchoff was burglarized on February 20, 1977, and various items of jewelry were stolen. The Eagles Club was burglarized on February 23, 1977, and one guitar belonging to Monty Gleason was stolen. The home of Sidney Fulton was broken into on March 9, 1977, and coins and jewelry were stolen. The appellants were arrested on March 10,1977, in an automobile owned by William C. and driven by Robert. William E. was a passenger.

Police officers testified that, when arrested, Robert had a pocket full of watches and coins. William C. permitted a search of the automobile where various items of jewelry were found. Gleason’s guitar was also found in the trunk.

Upon arraignment after indictment, all three appellants were represented by the Public Defender of McCracken County. The only witness for the defense at trial was William E. He admitted to the burglary of the Fulton house and to both counts of knowingly receiving stolen property. He denied that William C. and Robert had anything to do with any of the crimes. He additionally admitted to breaking into the Kirchoff home and the Eagles Club. He used his father’s automobile. On cross-examination, William E. was asked this question and gave this answer:

Q. You’re just taking the rap for these guys too, aren’t you?
A. Yes, sir.

William Eugene admitted he had been out of prison about six weeks when he went on his crime spree. He had been incarcerated for car theft.

The alleged errors are as follows: (1) Appellants were denied effective assistance of counsel since all three had the same attorney and he had a conflict of interest; (2) the proof on the knowingly receiving stolen property charges was insufficient as to the value of the property and as to the appellants’ knowledge that the property was stolen; (3) improper comments were made on the refusal of William C. and Robert to testify; (4) the prosecutor’s closing statement to the jury was unfairly prejudicial; (5) appellant Robert Robinson was unfairly prejudiced by the reading of the information of his prior felony conviction into evidence; (6) the prosecutor wrongly impeached a witness; (7) the presumption of knowledge from the fact of possession of stolen property as provided by KRS 514.-110(2) violates the 5th Amendment right to remain silent; (8) appellants’ 6th Amendment right to counsel was violated; (9) the cumulative effect of all errors deprived the appellants of a fair trial; and, (10) the trial court did not follow the mandate of KRS 532.050 in sentencing the appellants.

Most of the alleged errors (1, 2, 3, 6, 8, and 9) upon which the Robinsons rely for reversal are being raised for the first time on appeal. None were brought to the attention of the trial court and have not been preserved for appellate review. This court will not consider errors raised for the first time on appeal. Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977) and Meadows v. Commonwealth, Ky., 550 S.W.2d 511 (1977). However, we do state that the better practice would have been to appoint separate counsel for the defendants. It is now required under the Rules of Criminal Procedure, effective January 1, 1978, RCr 8.30.

The prosecutor, in his closing argument to the jury, classified the appellants as a “den of thieves”. No objection was entered by defense counsel, so error, if any, has not been preserved. Defense counsel did object to this same type comment by the prosecutor during his closing statement on the bifurcated persistent felony trial of Robert Robinson. Therefore, the statement made by the prosecutor at this point would only apply to Robert. William C. and William E. could have no complaint. In view of all the felonies enumerated in the record that Robert had been involved in, we believe he has no justifiable complaint either. Besides, the trial court did admonish the jury not to consider the prosecutor’s statement. The jury assessed a penalty of fifteen (15) years for Robert. The verdict could have been twenty (20) years.

The prosecutor called as a witness, in the persistent felony trial of Robert Robinson, the Circuit Court Clerk of Massac County, Illinois. The clerk testified he knew Robert and proceeded to read the certified records of the Massac County, Illinois Circuit Court. He read the entire “judgment and sentence” which indicated Robert had been accused of crimes other than the one (burglary) he plead guilty to. However, the clerk’s record further indicated all other charges were dismissed at the request of the Illinois State’s Attorney.

Appellant Robert Robinson cites Berning v. Commonwealth, Ky., 550 S.W.2d 561 (1977) as authority for reversal due to the circuit clerk’s reading of the above information to the jury. Berning was a pre-penal code case. The present law, KRS 532.080, requires a great deal more proof than the former law contained in KRS 431.190. Under the facts of this ease, we do not feel any prejudice resulted to Robert, even though there may have been a better procedure utilized by the prosecutor. In any case, there was no objection entered by the defense as to the manner in which this proof was introduced or to its contents.

We come to the last allegation of reversible error made by the public defender on behalf of the Robinsons. It is stated that the presumption provided by KRS 514.-110(2), that possession of recently stolen property is prima facie evidence the possessor knows it is stolen, is unconstitutional, because it violates a defendant’s 5th Amendment right to remain silent. The reasoning is that once evidence is introduced placing him in possession of the stolen goods, the defendant is compelled to testify to rebut the presumption that arises. The Public Defender and the Attorney General cite Barnes v. U. S., 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1972) as authority for their positions. As we read Barnes, it holds that the inference or presumption in knowingly receiving type cases does not violate any of defendant’s constitutional rights. The presumption is a rebuttable one and in no way relieves the jury from being the fact finder and giving whatever weight it wishes to the evidence. It may completely disbelieve the evidence creating the presumption. The burden of proof in no way shifts to the defense. The commonwealth must still prove its case beyond a reasonable doubt to the satisfaction of the jury. The statutory presumption is not unconstitutional. See Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925) and Patterson v. Commonwealth, Ky. App., 556 S.W.2d 909 (1977).

Both parties agree the eases should be remanded to the trial court for compliance with the provisions of KRS 532.050 unless the judgments are amended pursuant to RCr 10.10. It is so ordered.

During the pendency of the appeal by William C. Robinson, he died. The public defender, on behalf of William C., has moved that his appeal be dismissed; that the final judgment of the trial court as to William C. be vacated and that his indictment be dismissed. Our attention is directed to United States v. Toney, 527 F.2d 716 (6th Cir. 1975). Having found no error by the trial court in the trial of William C. Robinson, we nevertheless dismiss his appeal and vacate the judgment of the trial court as to this defendant only. This defendant’s case is remanded to the circuit court for further proceedings in accordance with Toney, id., and Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971). Otherwise, the judgments of conviction as to William E. and Robert Robinson are affirmed.

All concur.


text:
    Lyle L. WILLIS, William F. Jaynes, Virgil Engle, Lee Philpot, Otto Terrell, Virgil Dugger, Walter L. McKeehan, Eunice C. McKeehan, Viola Dugger, Richard Sturgill, Icy Sturgill, Ruth Philpot, Nell Terrell, Robert Harris, Phyllis Brewer Tiller, Dennis White, Janrose White, Duphus Trosper and Malissa Trosper, Appellants, v. CITY OF CORBIN, a Municipality of the third class, Appellee.
    Court of Appeals of Kentucky.
    April 21, 1978.
    Rehearing Denied July 21, 1978.
    Discretionary Review Denied Nov. 14, 1978.

      C. Gibson Downing, Jr., Richard C. Stephenson, Stoll, Keenon & Park, Lexington, for appellants.
    Samuel S. Cannon, Corbin, for appellee.
    Before HAYES, YANCE and WHITE, JJ.
   HAYES, Judge.

This is an appeal from a judgment of the Knox Circuit Court. Appellee, City of Cor-bin, is a city of the third class situated in both Knox and Whitley Counties. Corbin’s City Hall is located in Whitley County, where its legislative body, the Board of Commissioners, regularly meets to enact ordinances.

On September 21, 1970, the Board of Commissioners enacted Ordinance No. 2713 and Ordinance No. 2714 under which appel-lee proposed to annex unincorporated territory lying in Knox and Whitley Counties.

Appellants are resident freeholders of the unincorporated territory proposed to be annexed in Knox County. Appellants filed a petition of remonstrance on October 9,1970, pursuant to KRS 81.190 and KRS 81.110 in the Knox Circuit Court. The Mayor of the City of Corbin was served with process while he was within Knox County.

On November 1, 1970, appellee made a motion to dismiss the action on the grounds that the action was not properly in Knox County because the seat of government of the City of Corbin lies in Whitley County.

Oral arguments were heard on the motion on April 12, 1974, by Special Judge W. R. Knuckles. A judgment was entered by the trial court dismissing the action on the grounds of improper venue on November 28, 1975.

Appellants contend that they should be allowed to bring their action in Knox County, the county of the territory proposed to be annexed, or in the alternative, in either Knox County or Whitley County, the county of the seat of municipal government, whichever the petitioner shall elect.

Appellants make an analogy between annexation and actions relating to real property. They cite KRS 452.400 which provides:

. Actions must be brought in the county in which the subject of the action, or some part thereof, is situated:
(1) For the recovery of real property, or of an estate or interest therein;
(2) For the partition of real property except as is provided in KRS 452.420;
(3) For the sale of real property under KRS chapter 389, or under a mortgage, lien, or other encumbrance or charge, except for debts of a decedent;
(4) For an injury to real property.

Appellants in their brief then reason thusly:

While none of the four types of actions expressly listed in KRS 452.400 precisely fits the instant case, the petition against annexation is in a very real sense an action for the recoyery of real property or an interest therein. Moreover, the statute expresses the legislative intent that actions relating to real property be brought in the county where all or part of the real property was situated. Certainly a petition against annexation is such an action.

Appellee argues that, “This is not an action under KRS 452.400 for the sale, recovery, or partition of real property nor for an injury to real property”.

This court must recognize that annexation is in essence an exercise of governmental power. It is a political act within the exclusive control of the legislature and a matter of public interest rather than private right. City of St. Matthews v. City of Beechwood Village, Ky., 373 S.W.2d 427 (1963).

Further, a remonstrance proceeding in itself is in the nature of an action in personam rather than in rem. The act of annexation is done in reference to the property and it could be performed anywhere. It does not directly affect the real estate of the territory proposed to be annexed. See Caudill v. Little, Ky., 293 S.W.2d 881 (1956), and Oklahoma City v. Whelan, Okl., 557 P.2d 879 (1976).

Therefore, we must conclude that KRS 452.400 is inapplicable to the case at bar and that this remonstrance proceeding is not an action relating to real property.

Appellants also contend that if KRS 452.400 is inapplicable then KRS 452.480 would apply in this case. KRS 452.480 provides as follows:

. An action which is not required by the foregoing provisions of KRS 452.-400 to 452.475 to be brought in some other county may be brought in any county in which the defendant, or in which one (1) of several defendants, who may be properly joined as such in the action, resides or is summoned.

Appellants argue that it follows that Knox County would be the proper venue since the Mayor of Corbin was served there and that the Mayor is the proper party to be served on behalf of the City pursuant to KRS 81.110.

Appellee disagrees and argues in its brief that:

The contention of the Appellants that the proper venue is in Knox County because the Mayor was served at the National Standard Plant which is outside the City limits in Knox County, Kentucky, is without merit. If this were the law, the City of Corbin could be sued in any county of the State of Kentucky wherever the Mayor happened to be at the time.

We cannot agree that KRS 452.480 controls in this case because the cause of action is not a transitory one. It is instead localized in the county in which the municipality is situated.

KRS 81.110 provides in part:

Within thirty (30) days after the enactment of an ordinance proposing to annex unincorporated territory to a . city, or to reduce its limits, one or more residents or freeholders of the territory proposed to be annexed or stricken off may file a petition in the circuit court of the county, setting forth the reasons why the territory or any part of it should not be annexed, or why the limits should not be reduced

We interpret the words, “in the circuit court of the county,” to mean in the county where the municipality is located. This, therefore, makes the action local and not transitory.

This brings us to the unique central issue in this case which is — where does proper venue in remonstrance proceedings lie if the municipality is situated in more than one county?

Appellee contends that the proper venue for this action can lie only in Whitley County where Corbin’s seat of government is located. We must agree with this contention.

There are no specific statutory provisions establishing the proper venue in a case such as this. See City of Corbin v. Roaden, Ky., 453 S.W.2d 603 (1970); but we do interpret the phrase, “in the circuit court of the county,” which was cited previously from KRS 81.110, to mean in the circuit court of the county in which the seat of municipal government is located. This interpretation is in accord with decisions in other jurisdictions. See Arlington v. Calhoun, 148 Ga. 132, 95 S.E. 991 (1918); Fostoria v. Fox, 60 Ohio St. 340, 54 N.E. 370 (1899); and Annot., 93 A.L.R. 500 (1934).

Thus where a municipality is partly situated within two counties or more, its situs as between such counties, for purposes of venue, is in the county in which its municipal offices and government are located, in the absence of a statutory provision to the contrary. 64 C.J.S. Municipal Corporations § 2203.

In Fostoria v. Fox, supra, at 371, the court stated:

But it is also claimed that, where a city is partly within one and partly within another county, it has a situs in each. This, we think, is not admissible. If this were so, it would be two cities instead of one. It would be quite as consistent with reason to say that an individual could have two domiciles. The situs of a city is to be determined by the place where its principal seat of municipal government is located.

The court in Arlington v. Calhoun, supra, found a city's principal seat of government to be in the county where its council chambers, town clerk’s office, municipal records depository, police court and jail were all located and where all meetings and official acts of municipal authorities took place.

The Oklahoma Supreme Court in recent decisions has followed the Ohio court decision in Fostoria v. Fox, supra. See Oklahoma City v. District Court, Okl., 429 P.2d 791 (1967), and Oklahoma City v. Whelan, Okl., 557 P.2d 879 (1976).

In Oklahoma City v. District Court, supra, at 793, the court stated:

. We think it obvious that, . a city can have its situs in only one county, as pointed out in City of Fostoria v. Fox . . . We are of the further opinion that the county thus referred to, is the one in which the city has its seat of government .

The rationale behind this rule of law is stated in 56 Am.Jur.2d Municipal Corporations § 855 thusly:

. The Courts have also constantly pointed out that it is of the greatest importance to the welfare of municipal bodies and of the citizens whom they serve that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation. The magnitude and importance of the functions of municipal government are constantly increasing with the growth of populations and of the various and complex agencies employed in municipalities in the public service, and these functions require the constant presence and watchfulness of those charged with their direction and management. To permit these great public duties to be hindered or delayed in their performance, in order that individuals or private corporations might more conveniently collect their private debts, would be to prevent the great object of the creation of municipal corporations .

Appellants state that, “The City of Cor-bin lies in both Whitley and Knox Counties and thus in no sense is the City of Corbin being called upon to defend an action in a ‘foreign’ location.”

This may be true. Yet, it appears more logical to bring the remonstrance proceedings in the county where the annexation ordinance was passed because the subject of the action is the ordinance itself and not the territory being annexed. The act of annexation is being performed in Whitley County only at the seat of municipal government and not in Knox County.

Therefore, this court rules that the appellants should have brought their remonstrance proceeding in Whitley County.

Appellants may have the right to correct their error under the saving provision of KRS 413.270. This is a question which is not before us.

The judgment of the Knox Circuit Court is affirmed.

All concur.


author: WHITE, Judge.

text:
    Margaret Hudson BRYANT, Appellant, v. TRANSAMERICA INSURANCE CO., Appellee.
    Court of Appeals of Kentucky.
    June 16, 1978.
    Discretionary Review Denied Nov. 14, 1978.
    James N. Howard, Hebron, for appellant.
    Mark G. Arnzen, Covington, for appellee.
    Before WHITE, HOWERTON and LESTER, JJ.
   WHITE, Judge.

The question presented on this appeal is whether the trial court was clearly erroneous in granting appellee’s motion for summary judgment on the grounds that appellant had no insurable interest in the property at the time of loss because a previous court order had directed appellant to recon-vey the property to her mother. The commissioner’s conveyance did not occur until after the loss.

Appellant, Margaret Bryant, received legal title to property located at 802 Lincoln Avenue in Breathitt County from her mother, Bessie Hudson, by deed on October 18, 1973. On October 18, 1974, Bessie Hudson brought suit in the Breathitt Circuit Court seeking to have the deed declared null and void on the grounds that she had been induced to sign the deed after false and fraudulent misrepresentations were made to her by her daughter, appellant in this action. On August 14, 1975, a hearing on the merits was held in the Breathitt Circuit Court. Midway through the hearing but before all evidence had been presented, Margaret Bryant agreed to reconvey all property involved in the suit to her mother. An order to this effect was so entered and signed by the presiding judge and plaintiffs counsel. Counsel for Margaret Bryant did not sign the order. The order provided that in the event the property was not conveyed, the Master Commissioner should execute appropriate deeds. The property was not reconveyed and on May 14, 1976, the circuit court ordered the Master Commissioner to deed the property back to Bessie Hudson, which was so done. On February 21, 1976, the property was destroyed by fire. This suit resulted when Transamerica Insurance Co. refused to pay proceeds on the loss to Margaret Bryant, who had been issued a fire protection policy on the premises in the amount of $14,000.

KRS 304.14-060 provides:

(1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.
(2) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.

Cases prior to the passage of this statute defined insurable interest as “. . . that interest in the subject matter insured by virtue of which the person insured will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction or injury by the happening of the event insured against.” Patrick v. Kentucky Farm Bureau Mutual Insurance Co., Ky., 413 S.W.2d 340 (1967). Also see Crabb v. Calvert Fire Ins. Co., Ky., 255 S.W.2d 990 (1953). In a case involving the present statute, the Court of Appeals again focused on the pecuniary interest involved and held that a policyholder had an insurable interest in property destroyed by fire even though that individual had no legal title to the property. His wife and brother-in-law were owners of the property but the insured and his wife conducted a business on the premises. The court also noted that the policy had been issued through a third party without inspection of the premises or inquiry into legal ownership. Aetna Insurance Company v. Solomon, Ky., 511 S.W.2d 205 (1974). Appellant contends pecuniary interest is not the sole factor in determining whether an “insurable interest” exists and claims an “insurable interest” on the strength of her “lawful interest” as record title holder on the date of the fire.

Appellant argues that since the Master Commissioner had not executed the conveyance, at the time of the fire she possessed both legal and equitable rights in the property and therefore had an “insurable interest” in the property. KRS 426.575 states: “A conveyance by a commissioner shall not pass any right, until it has been examined and approved by the court; which approval shall be endorsed on the conveyance, and recorded with it.” Although we find no Kentucky cases faced with the direct issue before us, several cases addressing the question of who has an insurable interest in property before deeds have been recorded prove helpful in resolving this case. In Cook’s Adm’r. v. Franklin Fire Ins. Co., 224 Ky. 360, 6 S.W.2d 477 (1928), the court held that equitable title to the property had passed at the time of judicial sale and execution of bond by the purchaser, and that thereby coverage was avoided under the fire insurance policy even though no deed had been recorded at the time of loss. In a condemnation case where payment had been made but no conveyance at the time of loss, the court held the con-demnee had no insurable interest in the property. Patrick v. Kentucky Farm Bureau Mutual Insurance Co., supra. In both these cases, policyholders could not collect even though they were the record title holders because no insurable interest was found. At the time of loss the policyholders held legal title but equitable rights resided in another. We feel such reasoning is applicable to the case at hand. The court order of August 14, 1975, divested appellant of any beneficial interest she may have possessed in the property in question; only legal title remained in appellant and she was directed to reconvey such interest to Bessie Hudson.

“A fire insurance policy insures an ‘interest in,’ not the property itself.” Twin City Fire Insurance Company v. Walter B. Hannah, Inc., Ky., 444 S.W.2d 131 at 133 (1969). Furthermore, that “insurable interest” must exist both at the time of the making of the contract and at the time of loss. Crabb v. Calvert Fire Ins. Co., supra. Although appellant may have had an insurable interest at the inception of the policy, no such interest existed when the fire occurred. “There is, however, a material difference between having an insurable interest and having it insured.” Id. Since appellant retained no insurable interest at the time of loss, KRS 304.14-060 prohibits enforcement of the insurance contract.

Appellant argues that even if -the court order divests her of an insurable interest, the court order of August 14, 1975, is not binding because said order was not reached after an adjudication of the merits but was only an agreed order which appellant’s counsel never signed. By not signing the order, appellant contends, she did not agree to same and therefore it is not binding as an agreed order. It is noted however that at the trial, appellant approached the presiding judge and opposing counsel, agreeing to reconvey all property in question. It was upon this action by appellant that the order was drawn and entered. The effect of an agreed order was considered in Keach v. Reach, 217 Ky. 723, 290 S.W. 708 at 710 (1927), where the court said:

the agreed or consent judgment substitutes the contract of the parties for the conclusions of the chancellor, and the consent judgment becomes final in the sense that it cannot be appealed from or impeached for error and can only be impeached by attacking the settlement itself, or by showing that it is different from the settlement.

The court elaborated further in its quotation from Karnes v. Black, 185 Ky. 410, 215 S.W. 191 (1919), which stated:

A judgment by consent of parties is a judgment, the provisions and terms of which are settled and agreed to by the parties to the action to be affected by it, and it is placed upon, and becomes of record, by the consent and sanction of the court. The court does not settle the grounds or the terms of it; it is not the judgment of the court, except in the sense that the court allows it to go upon the record and have the force and effect of a judgment; and, therefore, the court cannot amend, modify or correct it, except by the consent of all the parties to it. (emphasis added) Reach, 290 S.W. at 710.

At that trial, appellant offered the terms of the agreed order. Appellant made no objection to entry of the order nor sought a Rule 60.02 motion to relieve her from the judgment on grounds of mistake. Since appellant made no positive steps to relieve herself from the agreed order and in fact initiated the order, she cannot now claim such order is not binding.

The judgment is hereby affirmed.

All concur.