author: O’QUINN, Justice.

text:
    John N. ADAMSON et al., Appellants, v. Kenneth BLACKMAR et al., Appellees.
    No. 12467.
    Court of Civil Appeals of Texas, Austin.
    Feb. 2, 1977.

      Lloyd Lochridge, McGinnis, Lochridge & Kilgore, and James N. Cowden, Scott & Douglass, Austin, for appellants.
    Howard V. Rose, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellees.
   O’QUINN, Justice.

Kenneth Blackmar and five other individuals, joined by trustees of the First Baptist Church of Luling, brought this lawsuit in Caldwell County against John N. Adamson and eight other named defendants for declaratory judgment to terminate an oil and gas lease, for accounting, and for other relief.

After trial before the court, judgment was entered in January of 1976 declaring the lease terminated by its own terms in August of 1974, awarding money judgment in the sum of $22,966.59, and granting plaintiffs other relief not pertinent to issues on appeal.

Appeal was perfected in behalf of some of the defendants below. Shortly prior to filing of briefs in their behalf in this Court, attorneys in charge of the appeal learned that two of the defendants named below in the suit, and against whom judgment was rendered, were deceased and had been deceased for more than ten years prior to filing of this action in district court.

Thereafter, in September of 1976, the parties appealing, acting through counsel, filed with this Court, the affidavits of surviving spouses of the two deceased defendants, together with certified records from the probate court of Gregg County, Texas, including death certificates, wills, and probate orders relating to the estates of the deceased defendants.

From the affidavits and probate records attached, it is clear that both J. R. Huckeba and J. E. Adamson, the deceased defendants, died in July of 1964, more than ten years prior to filing of suit, and that whatever interest the deceased defendants had in the subject matter of this lawsuit passed to their widows, neither of whom was named a defendant below.

Appellants bring three points of error, the first and controlling point being that the trial court committed fundamental error in proceeding to trial and rendering judgment in the absence of joinder of indispensable parties.

Under this point, appellants contend that on the face of the record it is evident that J. E. Adamson was deceased at the time this suit was filed, and that by reference to the affidavit of Nora Maxine Huckeba,- together with the certified probate records attached, it is evident that J. R. Huckeba was deceased when suit was filed.

The record shows that no service was completed on J. E. Adamson, since the sheriff’s return stated that “. . . after due search and diligent inquiry I have been unable to find the within named J. E. Ad-amson due to: . . . subject named is deceased.”

We agree with appellants that, apart from the showing in the affidavits of the surviving widows of J. E. Adamson and J. R. Huckeba, to which certified probate records are attached, it is apparent on the face of the record that the trial court committed fundamental error in rendering judgment against J. E. Adamson. The record reflects no appearance by J. E. Ad-amson prior to recital of his personal appearance in the trial court’s judgment. No answer in behalf of J. E. Adamson was filed, and the record does not indicate his presence or participation at the trial. Only the judgment recites that J. E. Adamson appeared in person and by attorney, a recital in direct conflict with the sheriff’s return certifying that no service was had on J. E. Adamson for the reason that he was dead.

Appellees urge that the record does not reflect the absence of J. E. Adamson, but on the contrary reflects his appearance because of the filing of various instruments and because the judgment recites his appearance in person and by attorney. This Court recognizes the general rule that when the judgment recites that a party appeared, the recital is presumed to be true. The authorities appellees rely upon, however, consistently deal with circumstances under which no conflict existed between the record and the recitation in the judgment. Day v. State, 489 S.W.2d 368 (Tex.Civ.App. Austin 1972, writ ref. n. r. e.); Smith v. Wood, 37 Tex. 616 (1872); Yturri v. McLeod, 26 Tex. 84 (1861); Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App. Waco 1966, writ ref. n. r. e.), 407 S.W.2d 772 (Tex.Sup.1966); Southwest National Bank v. Cates, 262 S.W. 569 (Tex.Civ.App. Waco 1924, no writ); Carter v. Burleson, 439 S.W.2d 381, 384 (Tex.Civ.App. Houston (14th) 1969, no writ).

When a conflict exists between recitals in the judgment and the record itself, as in this case, the presumption of verity in the judgment is rebutted. San Bernardo Townsite Co. v. Hocker, 176 S.W. 644, 647 (Tex.Civ.App. Galveston 1915, no writ). The contention of appellees that recitals in a judgment are conclusive invokes a rule applicable only when attack upon the judgment is collateral and not direct. 34 Tex. Jur.2d Judgments, sec. 338, p. 338, fn. 7, and cases cited.

The attack here is direct, appellants having brought the judgment forward for correction of error, and the rule is that the sheriff’s return must prevail over recitations in the judgment which are clearly in conflict with the return, which certifies no service by reason of defendant being deceased. 68 A.L.R. 385, 388, Annotation: Conclusiveness of recital in judgment as to appearance or service of process. The rule has been stated by both the Supreme Court and the Court of Criminal Appeals. Burditt v. Howth, 45 Tex. 466, 471 (1876) (suit on note); Saunders v. State, 86 Tex.Cr.R. 413, 217 S.W. 148 (1919) (appeal from bond forfeiture).

Although on collateral attack jurisdictional recitals in the judgment import absolute verity, objections in a direct attack upon the judgment “would be good . in the court which pronounced it [the judgment] or in a higher court, upon appeal, writ of error, or certiorari.” Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092, 1096 (1935); Jordan v. Texas Pac. Coal & Oil Co., 152 S.W.2d 875, 879 (Tex.Civ.App. Amarillo 1941, writ ref.).

In review of a default judgment, the Supreme Court early held that even though parol evidence, at hearing on motion to set aside the judgment in district court, tended to rebut the officer’s return of service, nevertheless the return would import absolute verity and was sufficient to support the judgment. Gatlin v. Dibrell, 74 Tex. 36, 11 S.W. 908 (1889).

We hold that the trial court committed fundamental error in rendering judgment against J. E. Adamson, the return of process showing clearly that Adamson was dead and for that reason had not been served. The error appears on the face of the record and was not cured by recitals of appearance in the judgment. The judgment will be reversed and the cause remanded for new trial.

Because this case will be tried again in district court, we now consider the further questions raised by reason of non-joinder of the widows of J. E. Adamson and J. R. Huckeba. It is clear that Mrs. Nora Maxine Huckeba, as surviving spouse of J. R. Huckeba, and Mrs. Nova Ellen Shivers, since remarried, as surviving spouse of J. E. Adamson, have present joint interests under the oil and gas lease sought to be can-celled. We conclude that Mrs. Huckeba and Mrs. Shivers are indispensable parties to this lawsuit such that their non-joinder requires reversal of the judgment and remand of the cause; and that the question of indispensable parties was properly raised for the first time on appeal.

The parties appear to be in agreement that prior to amendment in 1971 of Rule 39, Texas Rules of Civil Procedure, failure to join an indispensable party was fundamental error an appellate court would be required to notice and that jurisdiction over an indispensable party was essential to the trial court’s right to proceed to judgment. See Petroleum Anchor Equipment Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup.1966). After the amendment of 1971 to Rule 39, the parties are agreed that failure to join indispensable parties under the Rule is no longer a jurisdictional defect in all cases, under the holding of the Supreme Court in Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.Sup.1974).

The position of appellants is that although “. . . non-joinder of indispensable parties under Rule 39 will rarely be treated as jurisdictional . . . it is submitted that whether jurisdictional or not such failure gives rise to fundamental error which must be noted by the reviewing court.” In support appellants cite Jennings v. Srp, 521 S.W.2d 326 (Tex.Civ.App. Corpus Christi 1975, no writ); Armstrong v. Armstrong, 532 S.W.2d 406 (Tex.Civ.App. Eastland 1976, no writ); In Re Estate of Bourland v. Hanes, 526 S.W.2d 156 (Tex.Civ.App. Corpus Christi 1975, writ ref. n. r. e.).

But appellants insist that Rule 39 is not controlling in this case under the established principle of law that when in conflict with legislative enactment a Rule of the court must yield. Few v. Charter Oak Fire Insurance Company, 463 S.W.2d 424 (Tex.1971). This action was brought for judgment “declaring the termination of the oil and gas lease according to its own terms and conditions.” Under section 11, Article 2524-1, of the Declaratory Judgments Act, “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” (Emphasis supplied).

The language of the statute is mandatory, not merely directory, and requires that the persons owning interests under the oil and gas lease be made parties before a valid judgment can be rendered in this action. Few v. Charter Oak Fire Insurance Company, supra; State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958); Crickmer v. King, 507 S.W.2d 314 (Tex.Civ.App.Texarkana 1974, no writ); Mills v. Howell, 416 S.W.2d 453 (Tex.Civ.App. Austin 1967, no writ); Pan American Petroleum Corp. v. Vines, 459 S.W.2d 911 (Tex.Civ.App. Tyler 1970, writ ref. n. r. e.).

Nora Maxine Huckeba and Nova Ellen Shivers, as sole heirs of J. R. Huckeba and J. E. Adamson, were indispensable parties who were not joined. Their joinder is further required by Article 1982, V.A.C.S., which provided that “In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made parties defendant.” (Emphasis supplied). The legislative language makes this statute mandatory, and failure to comply with the article renders the judgment void. Jones v. Gibbs, 133 Tex. 645, 130 S.W.2d 274 (1939); East v. Dugan, 79 Tex. 329, 15 S.W. 273 (1891); Allen v. Matthews, 210 S.W.2d 849, 851 (Tex.Civ.App. Austin 1948, writ ref. n. r. e.).

Aside from the Huckeba estate, as disclosed by the affidavit and attached certified records, the record of this cause on its face shows that J. E. Adamson was deceased, and that neither the representative of his estate, nor his heirs, were made parties defendant. Failure to join John N. Adamson, named a defendant, in his representative capacity, a matter we will next consider, and the additional failure to join the surviving spouse of J. E. Adamson, discloses a failure to join indispensable parties and renders the trial court’s judgment void.

Appellees insist that the interests of J. R. Huckeba and J. E. Adamson were represented in this action because the representatives of the respective estates were aware of the litigation. This knowledge is not disclosed by the record, but only by the affidavits of Mrs. Shivers and Mrs. Hucke-ba, the surviving spouses of the deceased men, which appellees urge may not be considered on appeal. The petition upon which appellees, as plaintiffs below, went to trial fails to name any person or persons in a representative capacity. Only from the affidavits are the facts disclosed that Nora Maxine Huckeba was appointed independent executrix under the will of J. R. Huckeba, and that John N. Adamson succeeded Nova Ellen (Adamson) Shivers as independent executor under the will of J. E. Adamson. Neither Nora Maxine Huckeba nor Nova Ellen Shivers was named a party defendant, individually or in a representative capacity; nor was John N. Adamson, although sued individually, named in his representative capacity.

To bind the estates of J. R. Hucke-ba and J. E. Adamson, the representatives of their estates must be sued and served in their representative capacities, and if judgment is rendered against them, the rendition must be against them in their representative capacities. DeWitt v. Miller, 9 Tex. 239 (1852); Lewis v. Nichols, 38 Tex. 54 (1873); Blair v. Carney, 44 S.W.2d 1031 (Tex.Civ.App. Fort Worth 1931, writ ref.). Appellants disclaim the position, attributed to them by appellees, that they urge failure to join indispensable parties because of the absence of executors, or other representatives, of the respective estates of J. E. Ad-amson and J. R. Huckeba. Appellants do insist, and we agree with their contention, that error lay in failure to join Nora Maxine Huckeba and Nova Ellen (Adamson) Shivers as the sole heirs, respectively, of Huckeba and Adamson, the deceased.

It appears settled that the failure to join indispensable parties may be raised properly for the first time on appeal. Arlington v. Bardin, 478 S.W.2d 182, 191 (Tex.Civ.App. Fort Worth 1972, writ ref. n. r. e.); Pan American Petroleum Corp. v. Vines, supra; Davis v. Wildenthal, 241 S.W.2d 620 (Tex.Civ.App. El Paso 1951, writ ref. n. r. e.). Decisions subsequent to Cooper, noted supra, have held that failure to join indispensable parties, where truly indispensable, as in this case, is fundamental error that must be noted by an appellate court. Airport Coach Service, Inc. v. City of Fort Worth, 518 S.W.2d 566 (Tex.Civ.App. Tyler 1974, writ ref. n. r. e.); In Re Estate of Bourland v. Hanes, supra; Crickmer v. King, supra. In both Crickmer and Airport Coach declaratory judgments were sought and it was held that failure to join indispensable parties constituted jurisdictional defects rendering the judgment void.

Appellees urge that inclusion of the name of J. E. Adamson in the notice of appeal, and in a request for findings of fact and conclusions of law, will in either instance constitute an appearance on his part, giving personal jurisdiction for the judgment previously rendered. Where service is not completed, or is fatally defective, appearance is not made thereafter by excepting, after judgment, to the judgment and giving notice of appeal. Llano Improvement & Furnace Co. v. Watkins, 4 Tex.Civ.App. 428, 23 S.W. 612 (Austin 1893, writ dism’d). That such defendant, after judgment, filed a motion for new trial, excepted to the judgment, and gave notice of appeal, would not constitute an appearance or waiver of citation was held in Peterson & Tvrdik v. Mueller-Huber Grain Co., 58 S.W.2d 890, 892 (Tex.Civ.App. Beaumont 1933, no writ).

Insisting that J. E. Adamson, a dead man under the record of this case, made an appearance, appellees rely on Holland Page, Inc. v. Capitol Truck and Trailer Company, Inc., 518 S.W.2d 441 (Tex.Civ.App. Beaumont 1974, writ ref. n. r. e.), in which the party actually appeared, as evidenced by the record. Appellees also rely on the authority of Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank and Trust, 476 S.W.2d 97 (Tex.Civ.App. Corpus Christi 1972, no writ), in which the court held that prosecution of appeal was appearance only of the appeal and in “further proceedings” on remand of the cause. But, there too, the party was a live person.

The patent absurdity of insisting that a man dead before suit was brought is a proper party to a suit, in the face of showing that he is not alive, was considered in an opinion by Judge Frank A. Williams while an associate justice of the Galveston Court of Civil Appeals. In that case Judge Williams said in part, “The existence of a party is essential to the jurisdiction of a court in a suit against him. If he is dead, the court has no power to determine that he is alive. Being dead, he is not and cannot be a party, and hence the judgment of the court is necessarily null, unless it is true that jurisdiction over a party is not essential to the validity of the judgment.” M. T. Jones Lumber Co. v. Rhoades, 17 Tex.Civ.App. 665, 41 S.W. 102, 105 (Galveston 1897, writ ref.).

We have examined all points of error brought by appellants and the counterpoints presented by appellees. In view of the fact that we find it necessary to reverse the judgment of the trial court and remand the cause for new trial, on the holdings already stated and for the reasons expressed in connection with the holdings, we do not reach the remaining points and counterpoints not examined in connection with our decisions on the matters we regard as controlling.

The judgment of the trial court is in all things reversed, and the cause is remanded for new trial.

      . The treatment of this subject by Judge Williams is learned and extends through nearly five columns of the reported opinion. Judge Williams served on the Galveston court (1892-1899) and later was Associate Justice of the Supreme Court (1899-1911). The late Judge Ocie Speer, in his scholarly volume Texas Ju-lists (1936), briefly notes Judge Williams’ logical examination of res judicata in Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 9 (1904), and his concept of police power as found in H. & T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 653 (1905).


source: Caselaw Access Project

author: WARD, Justice.

license: Public Domain

text:
    A. Henry SARA-NEC et al., Appellants, v. L. C. SLAPE, Appellee.
    No. 6587.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 2, 1977.

      Legg, Saxe & Baskin, Reagan H. Legg, Midland, for appellants.
    Vann Culp, Jimmie D. Oglesby, Garland Casebier, Midland, for appellee.
   OPINION

WARD, Justice.

This is an appeal from the granting of a temporary injunction which prohibited the Defendants from foreclosing under a deed of trust and from holding a trustee’s sale of the encumbered properties. What is primarily involved is a factual controversy over alleged breaches in the payments and other obligations of the lien instruments. We affirm.

In February, 1976, the Defendant, A. Henry Sara-Nee, entered into a contract of sale with the Plaintiff, L. C. Slape, whereby the Defendant agreed to sell to the Plaintiff 148 separate rental homes and certain other properties in Midland for the sum of $1,110,000.00. Thereafter, the sale was completed, and, on February 24th, the Defendant executed his general warranty deed conveying the property to the Plaintiff, who paid $45,000.00 in cash, the deed reciting a further consideration of the assumption and the agreement to pay by the grantee of the then outstanding balances on ten promissory notes each in the original amount of $10,000.00, payable to the order of the First National Bank of Midland, the notes being secured by a superior deed of trust on ten of the homes, and the balance of the consideration being $963,000.00, as evidenced by a promissory note of even date, payable to the order of Mr. Sara-Nee, executed by the Plaintiff, and bearing interest at the rate of seven percent (7%) and being payable in monthly installments of $6,806.27 each, the first monthly installment being due and payable on April 15, 1976, and with a like installment being due on the 15th day of each succeeding month thereafter, said note providing for acceleration of maturity and attorney’s fees in the event of default and being secured by the vendor’s lien retained in the warranty deed, and being further secured by deed of trust of even date to William B. Smith, Trustee and a Defendant in this suit. The deed of trust provides that, upon breach of any of the conditions of the deed of trust or upon default in the punctual payment of the indebtedness or any part thereof, at the option of the holder the whole of the indebtedness will mature and become due and payable. Soon after closing of the sale, Mr. Sara-Nee complained to the Plaintiff of alleged breaches of the conditions of the deed of trust, and, on July 18, 1976, advised the Plaintiff in writing of his intention to foreclose under the power of sale. The Trustee posted notice on August 6th for sale on September 7,1976. The Plaintiff then filed his suit, secured a temporary restraining order prohibiting the sale, and, after a hearing on September 7th, the temporary injunction was granted.

Certain special conditions of the deed of trust, which are similar to provisions contained in the original contract of sale, are involved. The Plaintiff agreed that he would deposit at the First National Bank of Midland a minimum of $1,500.00 as a tax reserve account each month starting March 15, 1976, in a joint account with the seller. The Plaintiff further agreed to make the seller sole beneficiary of a life insurance policy in the amount of $100,000.00, either by an assignment or by obtaining a special policy, the policy to be non-cancellable by the Plaintiff. And finally, the Plaintiff specifically agreed to keep all the properties and premises at his own expense in good repair and condition “TO THE PERSONAL SATISFACTION” of the seller.

The hearing on temporary injunction developed into a factual dispute of five alleged breaches of obligations contained in the instruments which, according to Mr. Sara-Nee, justified his acceleration of the note and his subsequent attempt to foreclose. According to this Defendant, these were: (1) failure to furnish the policy of life insurance in the amount of $100,000.00; (2) failure to execute an assumption agreement with the First National Bank assuming the indebtedness required; (3) failure to furnish prepaid hazard insurance on the properties; (4) the making of late payments on the escrow account and to the Defendant; and (5) the failure to repair and maintain the properties according to the standard prescribed.

As to the policy of life insurance, the policy was applied for on May 8th, issued on July 6th, and delivered to Mr. Sara-Nee on July 19, 1976. However, it is noted that there was no time limit within which the policy had to be obtained, no requirement that it be delivered to this Defendant, and the Plaintiff testified that the several months delay was due to his inability to obtain life insurance because of a fluctuation in his blood pressure. The fact remained that it was obtained and the Defendant was covered before the attempted acceleration on July 18th.

On the assumption agreement, it was established that the Plaintiff never executed and delivered to the bank any such agreement. However, such a separate agreement was not called for by any of the instruments, and, in the deed, the grantee assumed the balance on the ten promissory notes in question, and the obligation was obviously self-executing.

As to the prepaid hazard insurance, on May 11th, Mr. Sara-Nee wrote the Plaintiff complaining that he had failed to prepay the hazard insurance. As testified at the hearing, Sara-Nee did this as “someone had told him” that the insurance was not totally prepaid. The Plaintiff testified that he furnished the necessary policy covering the properties which he had promptly delivered; that he paid $4,100.00 down; that at the time of the hearing had paid for five months premiums; and that the policies were always on a prepaid basis.

As to the late monthly note payments of $6,806.27, Sara-Nee testified that the May payment arrived in the mail on May 17th, and he returned the payment to the Plaintiff; that the July payment arrived on July 16th; and that though he had retained the July check and the August check, he had not cashed them. The Plaintiff testified that all payments had been made on time and the checks cashed, with the exception of the July payment which had been returned, and that the cancelled checks were available for examination. As to the payments on the escrow account in the amount of $1,500.00 to cover taxes and insurance, the proof was that the first deposit had been made on or before March 15th, and the similar deposit monthly thereafter. Contrary to the assumption made by Mr. Sara-Nee as to a specific due date on this monthly deposit, the deed of trust specifies only that the payment be made “each month."

The bulk of the testimony at the hearing regarded the failure of the Plaintiff to maintain the property “TO THE PERSONAL SATISFACTION” of the seller. Without detailing the testimony, it reflects that the repairs made were not to Mr. Sara-Nee’s personal satisfaction. Dissatisfaction was expressed to the Plaintiff repeatedly, and on four occasions in writing. The properties had been acquired over a twenty-five year period, and undoubtedly needed constant repair and suffered somewhat from tenant abuse. The Plaintiff countered with his testimony that he had purchased about $2,000.00 worth of supplies for use on the properties during his nineteen weeks of ownership, and had expended $4,267.20 for outside labor for repairs in addition to his regular maintenance men who were paid $190.00 a week; that he had no vacancies at the time of the hearing; and that the properties were generating $800.00 a month more in revenues than when purchased. He testified that the properties on the whole were in the same condition as at the time of purchase, and that what Sara-Nee wanted was capital improvements to the properties in the amount of $25,000.00, which would have improved their condition over that which existed at the time of the sale. It was established that Sara-Nee had contacted some forty of the tenants to determine if they were dissatisfied with any conditions in the properties, and that beginning in May, he had planned a foreclosure with a threatened deficiency judgment of $250,000.00 against the Plaintiff. Without more detailing, there was a reasonable inference arising that the Defendant’s dissatisfaction was unreasonable and was made in bad faith.

The Defendants’ three points of error are very broad; the arguments thereunder cover the field of temporary injunctions. The applicable principles for such a hearing are recognized. On the application for the temporary injunction, the only question before the Court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending the final trial. The applicant need only show a probable right and a probable injury, and he need not establish that he will finally prevail in the litigation. Where the pleadings and the evidence present a case of probable right and probable injury, the trial Court is clothed with broad discretion in its determination as to the issuance of the writ. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

The remedy of injunctive relief is applicable and has often been sought by the landowner to stop or delay a sale under a deed of trust. The one with ownership and possession may be entitled to the writ as it protects against the disturbance of that title and possession, and in such a case, preserves the status quo. 6 Texas Practice, Injunctions, Sec. 27, at 51 (1973); 31 Tex. Jur.2d Injunctions, Sec. 69, at 148 (1962). The last peaceable status quo of the subject matter of the lawsuit will have been disturbed if the injunction is denied and the foreclosure carried out. Erickson v. Rocco, 433 S.W.2d 746 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.).

In this case, the Plaintiff’s pleadings were sufficient in the absence of special exceptions. While the Plaintiff also sought declaratory relief, that relief went only to a determination of the existence or not of the alleged past breaches of the agreement relied upon by the Defendants in justification of their action in maturing the obligation and in attempting the foreclosure.

The trial Court judgment determined that the Plaintiff was entitled to the temporary injunction, the reasons set forth in the judgment being that the Plaintiff testified he was threatened with immediate and irreparable injury as a result of the Defendants’ actions in purporting to foreclose and hold the trustee’s sale of the real estate owned by the Plaintiff, and upon which he had made substantial down payments, monthly payments, and repairs, all in reliance upon the terms of the deed of trust, and all of which would be lost unless the foreclosure and sale were prevented, and that the Plaintiff had established a probable right to prevent the foreclosure by the Defendants under the deed of trust. Such recitations in a judgment adequately comply with the requirements of Rule 683, Tex.R.Civ.P. They are similar to those approved in Transport Co. of Texas v. Robertson Transports, supra. The order does not have to go further and set forth the reasons why the Court believed it probable that the applicant would prevail on a final trial. State v. Cook United, Inc., 464 S.W.2d 105 (Tex.1971).

As to the evidence before the trial Court regarding the alleged breaches, we are required to review the evidence and draw legitimate inferences from the facts in evidence in the light most favorable to the trial Court’s judgment. We have done so, and such implied findings show that the Plaintiff was not in default in any of the matters asserted to the extent necessary to justify the acceleration. Erickson v. Rocco, supra. As to the July payment on the note, it was tendered, received and retained by Mr. Sara-Nee before he exercised his option to accelerate on July 18th. Such a tender prevents an acceleration for that payment. Hiller v. Prosper Tex, Inc., 437 S.W.2d 412 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ).

The existence of the “personal satisfaction” standard with respect to the repairs is not an absolute. The true test of that right is whether or not the party possessing the right has exercised good faith in the matter. 13 Tex.Jur.2d Contracts, Sec. 301, at 550 (1960). Impliedly, the trial Court, under the evidence, found against the position asserted by Mr. Sara-Nee, and the evidence supports the finding.

We have considered all of the Defendants’ points and they are overruled. We do not undertake to determine the case on the merits. What we have stated applies only to the temporary injunction and is without prejudice to the rights of the parties to assert their claims and to offer evidence at any trial on the merits.

The judgment of the trial Court is affirmed.


author: STEPHENSON, Justice. KEITH, Justice,

text:
    Fred COLLIDA et al., Appellants, v. Florence COLLIDA, Appellee.
    No. 7914.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 3, 1977.
    Rehearing Denied Feb. 24, 1977.
    Jon Burmeister, George Wikoff, Port Arthur, for appellants.

      Harold Plessala, Port Arthur, for appel-lee.
   STEPHENSON, Justice.

Florence Collida, as petitioner, brought this suit for divorce as against Fred Collida, as respondent, and made the Board of Firemen’s Relief and Retirement Fund Trustees of Port Arthur, Texas (The Board), a party to this action. Trial was before the court, and the divorce was granted, and Mrs. Colli-da was awarded custody of the minor child. Mr. Collida was ordered to pay child support and the community property was divided.

Both Mr. Collida and The Board have appealed and the sole point of error is that the trial court erred in ordering The Board to pay directly to Mrs. Collida one-half of the monthly retirement benefits in the Firemen’s Relief and Retirement Fund. The undisputed evidence showed Mr. Collida’s interest in such fund had become vested, he had retired and monthly payments had begun.

It is not contended by these appellants that Mrs. Collida was not entitled to one-half of the benefits as her interest in the community property. That question has long been settled in this state. See Busby v. Busby, 457 S.W.2d 551 (Tex.1970). No contention is made that the trial court abused its discretion in the division that was made of the community estate. The sole contention made is that the only relief available to Mrs. Collida is for the trial court to create a constructive trust whereby the money would be paid directly to Mr. Collida who would be a trustee as to her interest and would be ordered to send the one-half interest to her. '

The argument is made in support of such contention that this retirement fund is controlled by Article 6243e, § 13, Tex.Rev.Civ. Stats.Ann. (1970). The essence of this argument is that such statute prohibits assignment of these funds, and a court order as we have in this case is, in effect, an assignment of the funds. There are no Texas cases passing directly upon the question before this court.

An amici curiae brief was filed by the Attorney General of this state on behalf of the State Firemen’s Pension Commission, the Teacher Retirement System of Texas, and the Employees Retirement System of Texas. Such brief states the various retirement acts contain similar provisions to the one before us, that is, Section 3.07, Tex. Educ. Code Ann. (1972) (Teacher Retirement Act), and Section 9 of Article 6228a, Tex.Rev.Civ.Stats.Ann. (1970) (State Employees Retirement Act). The statement is made that only the last provision (State Employees Retirement Act) has been construed by an appellate court and Prewitt v. Smith, 528 S.W.2d 893 (Tex.Civ.App.—Austin 1975, no writ), is cited. We have concluded that case is not controlling as to the question before us. In the Prewitt Case a divorce had been granted and the husband ordered to pay child support. The husband later terminated his membership in the Teacher Retirement System of Texas and made application for a refund of his contributions. The wife obtained a temporary injunction from the trial court enjoining the executive secretary of such fund from paying out the money. There is no indication that the wife had any vested interest in the retirement fund and, under the circumstances, she was in the position of a creditor. We have found no case in which the retirement benefits in any of the three funds mentioned above were found to be community funds and divided between the parties by judicial decree. We are convinced the question before us is one of first impression.

We have been cited United States v. Smith, 393 F.2d 318 (5th Cir. 1968), as supporting respondent’s position. In a divorce case the community property, including U.S. Army retirement pay, was divided equally between the parties. Mr. Smith sent a letter to the Retired Pay Division of the U. S. Army Finance Center, directing that agency to mail his retirement check to a bank which was authorized to divide the money between Mr. and Mrs. Smith. The first check was mailed and divided, but Mr. Smith then wrote a second letter directing that all future checks be mailed to him. No further checks were mailed to the bank and Mrs. Smith filed this suit in the federal district court. That trial court granted the relief sought but the circuit court reversed and rendered judgment that the trial court had no jurisdiction of the matter. That was the only question actually decided by the appellate court even though other pronouncements were made which could be no more than dicta. The statement is made that the United States was not a party to the state action and could not be bound by it. Also, it is said that the assignment of fifty percent of the retired pay account did not comply with the requirements of the Anti-Assignment Act, 31 U.S.C.A. § 203. Finally, it is stated that state law cannot be superimposed upon or take precedence over federal statutes and regulations. The many differences in that case and the one before us are obvious.

This court handed down an opinion on January 13, 1977, in DiMatteo v. Thibodeaux (Tex.Civ.App.—Beaumont 1977) (Our No. 7880, not yet reported). A somewhat similar situation existed in that the division of retirement benefits was involved. The employer was made a party to the suit and this court held that its motion to dismiss was properly granted by the trial court. We held that Article 5221d, Tex.Rev.Civ. Stats.Ann. (1971), gave the wife adequate protection without the necessity of making the employer a party to the suit. There is serious doubt that the petitioner in the case before us will have adequate protection from that statute alone. The Board has made the position clear that the retirement benefits will not be divided between the parties unless it is ordered to by the court. We, therefore, proceed to rule directly on this question.

After a careful reading and study of Section 13, Article 6243e, we have concluded it is a “spendthrift” provision and its intended purpose is to protect the benefits and interest in the fund from the creditors and assignees of the member, even from judicial decree. But we do not find Mrs. Collida to be either a creditor or an assignee of Mr. Collida. That meaning would require considerable strain upon the language used. As stated above, the interest in the fund is community property and the trial court found such interest to be one-half. The trial court merely ordered the executive secretary to make two checks instead of one and send Mrs. Collida’s check directly to her for her one-half interest.

The evidence in the record before us leads us to believe that this may be the only way Mrs. Collida has any assurance that she will receive her part. The evidence shows these parties had been married almost thirty years when Mr. Collida quit his job and moved to California without notice to Mrs. Collida. He withdrew $12,000 as severance pay and, on a preliminary hearing, testified he lost it all one night gambling in Las Vegas. After a recess he testified that he had spent $5,000 and still had $7,000 on hand. This court takes judicial knowledge that a constructive trust under circumstances of this case would not afford Mrs. Collida adequate protection. The collection of this money, not being child support, could not be enforced under the Uniform Reciprocal Enforcement of Support Act. The only remedy available, with Mr. Collida outside of the state, would be a suit on the judgment if he could be found, as the payments accrued. The point of error is overruled.

Judgment affirmed.

KEITH, Justice,

concurring.

Upon my own motion, and before the filing of any motion for rehearing, I withdraw the concurring opinion which I filed in the matter above captioned on February 3, 1977, and substitute this concurrence in lieu thereof.

I concur with Justice Stephenson’s disposition of this cause but as to one facet of the case, I would go farther than he does. Speaking of the opinion in Prewitt v. Smith, 528 S.W.2d 893 (Tex.Civ.App.—Austin 1975, no writ), Justice Stephenson says: “We have concluded that case is not controlling as to the question before us.”

The Prewitt Court properly held that the trial court did not have jurisdiction to enjoin or otherwise interfere with executive or administrative officials of the state in the lawful exercise of duties and functions committed to them by law. (528 S.W.2d at 895)

However, the jurisdiction of the Court of Civil Appeals in Prewitt was appellate, i. e. derivative. If the trial court lacked jurisdiction, the Court of Civil Appeals “acquires none on appeal, except to declare the invalidity of the proceedings in the trial court and to set them aside.” Family Investment Co. of Houston v. Paley, 356 S.W.2d 353, 355 (Tex.Civ.App.—Houston 1962, writ dism’d), and authorities therein cited. See also, Crawford v. Siglar, 470 S.W.2d 915, 918 (Tex.Civ.App.—Texarkana 1971, writ ref’d n. r. e.).

Thus, the Prewitt Court had no jurisdiction to make any decision upon the merits of the controversy. When it attempted to pass upon the contentions of the parties (as shown in syllabi 3 and 4 on page 896), its comments were at most obiter dictum. In Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1126 (1913), the Court defined dictum as: “ ‘An opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; . ’ ” So it is with the expression found in Prewitt relating to the funds in the retirement system.

If the dictum in Prewitt is allowed to stand unchallenged, we may expect counsel to use it as a bar to effective judicial division of community property rights in pension and retirement plans or the enforcement of child support orders under Tex. Family Code Ann. § 14.05(c) (1975). I submit that the statutory provisions exempting funds in the retirement systems from forced seizure were designed to secure the pensioner and his family from improvidence and want. Such provisions were not designed to aid a member in escaping his lawful obligations to his wife and children. Such has been the holding in other states and may very well become the law in Texas in an appropriate case. See, e. g., Fischer v. Fischer, 13 N.J. 162, 98 A.2d 568, 570 (1953); Courtney v. Courtney, 251 Wis. 443, 29 N.W.2d 759, 762 (1947); and Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131, 133 (1973).

I would follow Prewitt only insofar as it holds that the trial court there had no jurisdiction; I would not follow it insofar as it attempts to pass upon the spendthrift clauses in the statutory pension plans. Consequently, and regardless of any language which might be found in Prewitt, I concur in the affirmation of this case.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmy Frank JOHNSON, Defendant-Appellant.
    No. 10442.
    Missouri Court of Appeals, Springfield District.
    Jan. 17, 1977.
    Motion for Rehearing or to Transfer Denied Feb. 9, 1977.

      John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Daniel P. Wade, Ava, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Jimmy Frank Johnson’s initial appeal of his first degree burglary conviction in Douglas County was dismissed because it was not timely filed. State v. Johnson, 539 S.W.2d 322 (Mo.App.1976). Thereafter, on application, we granted leave to file a late appeal pursuant to Rule 28.07, V.A.M.R. This appeal followed. We affirm.

A rural Douglas County housewife, four months pregnant, and her four-year-old son were in the kitchen of their home late in the afternoon of March 19, 1974, when there occurred a loud crash at the back door of the dwelling. A large hole appeared in the door. The housewife heard and recognized defendant’s voice telling her not to go for a gun and that he was going to kill her and her son. Using the butt of his rifle as a battering ram, the hole in the door was enlarged so that the defendant’s hands and a part of the rifle protruded into the house. The housewife called out “Jesus,” whereupon the defendant ceased his attack on the door and left the scene. He testified he could not remember what happened.

Defendant’s point that the trial court should have instructed on burglary in the second degree was not in his motion for new trial and thus not preserved for our review. State v. Henderson, 510 S.W.2d 813, 821-822 (Mo.App.1974); Rule 27.20(a), V.A.M.R. The plain error doctrine, Rule 27.20(c), is not applicable for several reasons. Matters relating to instructions are not subject to review as plain error unless the trial court has misdirected or failed to instruct the jury on the law of the case so as to cause manifest injustice. State v. Walker, 505 S.W.2d 119, 122 (Mo.App.1973). The evidence clearly demonstrates defendant was guilty of the crime charged. There was a breaking of the door. State v. Carey, 486 S.W.2d 443, 446 (Mo.1972). Entry was by defendant’s hands and the rifle which protruded through the hole in the door. State v. Tierney, 371 S.W.2d 321 (Mo.1963). Defendant voiced his intent to kill the occupants of the house. An instruction on the lesser offense of second degree burglary would not have been supported by the evidence, whereas the state’s case vividly showed the commission of the more serious offense. State v. Watson, 364 S.W.2d 519, 522 (Mo.1963); State v. McCoy, 530 S.W.2d 8 (Mo.App.1975).

Defendant’s complaint in the argument portion of his brief in support of his first point, attacking the state’s verdict director, is not reviewable. It was not contained in his motion for new trial, nor in his points relied on, and the instruction is not set forth in his brief. Rule 27.20(a), Rule 84.04, V.A.M.R. However, we observe that the state assumed an undue burden in submitting the alternative methods of establishing first degree burglary as set forth in § 560.040, RSMo 1969, even though the evidence supported both submissions. No prejudice resulted. State v. Cusumano, 372 S.W.2d 860, 864 (Mo.1963); Rule 26.06, V.A.M.R.

The use of the term “Count I” in the instructions did not, contrary to defendant’s second point, place before the jury evidence of other crimes charged against the defendant. No evidence of other crimes was injected into the trial and defendant has not pointed out in what manner he was prejudiced by the use of the term. The instructions were limited solely to the crime of first degree burglary. Nothing more, nothing less. The point is without merit.

A statement by a member of the jury panel during voir dire is the subject of defendant’s final point. No objection was made, nor did defendant seek the discharge of the panel. Consequently, the trial court was not obligated to discharge the panel sua sponte. No plain error appears. The defendant’s assertion that the entire panel was poisoned by the unsolicited remark is not supported by the record.

Judgment affirmed.

All concur.

      . Defendant was charged in a three-count information. On the day of trial the court, on defendant’s objection, required the state to elect which count would be tried. The record indicates all three offenses arose out of a common plan or scheme and under Rule 24.04, V.A.M.R., were properly charged in one information.

      . “I think they don’t do enough to [criminal defendants] when they catch them.”


author: BRUCE NORMILE, Special Judge.

text:
    KANSAS CITY, Missouri, a Missouri Municipality, W. Yates, Webb, Director, Liquor and Amusement Control, Plaintiffs-Respondents, v. James M. REED, Jr., et al., Defendants-Appellants.
    No. KCD 27550.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      James A. Polsinelli, Shapiro, Polsinelli, Waldo, Schulte & Wehrman, Kansas City, for defendants-appellants.
    Aaron A. Wilson, City Atty., Rex G. Bost-wick, Asst. City Atty., Kansas City, for plaintiffs-respondents.
    Before DIXON, P. J., and NORMILE, CONLEY and BELT, Special Judges.
   BRUCE NORMILE, Special Judge.

Forty-two years ago, on August 17th, 1934, Albert Vaccaro was driving an automobile with his older brother in the front seat and his parents and a bushel basket with twenty-six half-pints of moonshine whiskey belonging to them in the back seat. Vaccaro and his brother were arrested. After a plea of guilty to a charge of feloniously transporting intoxicating liquor intended for sale, the nineteen year old Vaccaro was sentenced to four months in the Platte County jail. The charges against the brother were dismissed.

After becoming twenty-one, Mr. Vaccaro has been continually engaged in his occupation as a bartender or employee in a business selling alcoholic beverages at retail in the Kansas City area to the present time. Since approximately 1951 or 1952, the City of Kansas City has issued “Employee’s Permits” to all persons employed in the retail sale of alcoholic beverages under the provision of The Alcoholic Beverage Control Ordinance, which is now Kansas City, Mo.Code of General Ordinances, ch. 4, art. VI, § 4.38 (1967). Since that time, Mr. Vaccaro has made yearly applications for renewal of this “Employee’s Permit.” These applications did disclose the 1934 conviction and the Director of Liquor Control issued Vaccaro yearly “permits” until until 1970.

In that year the Director “discovered” the conviction and issued a temporary permit while Mr. Vaccaro sought to void the 1934 conviction in the United States District Court. However, the District Court found the evidence insufficient to find an involuntary plea and refused to set the plea aside. On appeal to the United States Court of Appeals for the 8th Circuit in Vaccaro v. United States, 449 F.2d 735, 736 (8th Cir. 1971), the finding of the District Court was found not to be clearly erroneous and was affirmed. It was there observed by Judge Gibson:

“However, in view of the apparent injustice imposed on Vaccaro by the civil disability enactment, we feel a brief comment is in order.
This is an appealing case for relief since appellant was only 19 years old at the time of this offense and in view of his clean record since that time, the lifetime attainder imposed by the City appears to be out of all proportion to this 1934 offense, and could well present constitutional questions. However, the constitutional issue of the validity of the lifetime civil disability is not before us in this case, and on the record we feel Judge Hunter’s findings must be affirmed.”

The Director thereafter denied Vaccaro’s application for renewal of the Employee Liquor Permit asserting that he was ineligible for a permit by virtue of Article V, Section 4.35 of the Alcoholic Beverage Control Ordinance, and Section 311.060, RSMo 1969. Article V relates to “Qualification of Licensee.” Section 4.35 provides that “licensees” must be of good moral character and qualified to hold an alcoholic beverage license in the State of Missouri. Chapter 311, RSMo 1969 is the Liquor Control Law. Section 311.060 provides “. . . and no person shall be granted a license or permit hereunder . . . who has been convicted, since the ratification of the twenty first amendment to the Constitution of the United States, of a violation of the provisions of any law applicable to the manufacture or sale of intoxicating liquor . . ..” Vac-caro’s conviction in 1934 was, of course, subsequent to the adoption of the Twenty First Amendment.

Other portions of the Alcoholic Beverage Control Ordinance are also pertinent here.

Article I — DEFINITIONS, Section 4.1(k) defines “Licensee” as “The holder of all licenses issued under the provisions of this chapter.” Section 4.1(p) defines “Permit-tee” as “The holder of an employee’s permit issued under the provisions of this chapter.”

Article II — DUTIES AND POWERS OF DIRECTOR, consists of Sections 4.2 through 4.10. Section 4.7 relates to the suspension or revocation of licenses or permits and provides for the hearing procedure before the Director of Liquor Control.

Article III — LICENSES, provides for the requirement of a license and unlawful acts concerning licenses.

Article IV — CLASSIFICATION OF LICENSES, consists of Sections 4.13 through 4.34 and details the various kinds of licenses to be issued and establishes the license fees for them.

Article V — QUALIFICATION OF LICENSEE, contains Section 4.35 relied upon by the Director and providing that “No license provided for by this chapter shall be issued to any individual . . . [unless such person] ... is qualified to hold an alcoholic beverage license in the State of Missouri . . ..”

Article VI — EMPLOYEE’S PERMIT, contains the qualifications for such permits and in Section 4.38(a) requires only that all persons employed in the retail sale of alcoholic beverages “be twenty-one (21) years of age or older and must obtain a permit to do so from the director of liquor control, . .” Section 4.38(b) provides that: . if the applicant meets the applicable requirements of the city and state, then such applicant will be given a permit ..” It must be noted that a “permit” is not within the definition of “license” under Article III, nor is it classified as a “license” under Article IV, nor is it referred to in Article V providing for qualifications of licensees. Article VII — APPLICATION FOR LICENSES, Article VIII — ISSUANCE OR ORIGINAL LICENSE, and Article IX — RENEWALS, TRANSFERS, LOST LICENSES AND CHANGES IN LICENSES do not make any further reference to “Employee’s Permits.”

Article XIV — LIQUOR CONTROL BOARD OF REVIEW, Section 4.79 provides, “If an application for any license or permit is denied by the director of liquor control, . . . the applicant, licensee or permittee, as the case may be, may request, in writing, a review of such denial or decision touching location, suspension or revocation of a license or permit to the board of review, . . ..” Section 4.82 requires the board of review to “investigate, examine and review the denial of an application for a license or permit” by the director of liquor control. It is there stated that: “The board of review may set aside any of the above actions of the director of liquor control if the majority of the members of the board determines that any such act should be altered, and the board may order the director of liquor control to issue a license or permit . . ..”

The Alcoholic Beverage Control Ordinance has thus placed a broad and exclusive discretion in the Liquor Control Board of Review rather than in the Director of Liquor Control. This is similar to the broad discretion granted to the State Supervisor of Liquor Control under Chapter 311, RSMo 1969. See Kehr v. Garrett, 512 S.W.2d 186 (Mo.App.1974). This discretion may also be similar to that of the Board of Zoning Appeals under an ordinance allowing that board to modify application of the zoning ordinance in case of hardship as indicated in the case of State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (Banc 1930). As to matters within the State Liquor Control law, Section 311.700, RSMo 1969, provides for judicial review of the supervisor’s action. However, the Alcoholic Beverage Control Ordinance does not make any provision for judicial, review of the actions of the Liquor Control Board of Review.

Subsequent to the Director’s refusal of a permit, Vaccaro duly appealed that decision to the respondent members of the Liquor Control Board of Review. After hearing, that Board reversed the Director’s decision. The Director and the City of Kansas City thereupon filed their petition for review in the circuit court pursuant to the provisions of Chapter 536, RSMo 1969, the “Administrative Procedure and Review Act.” The petition alleged that the Board’s decision was arbitrary and contrary to Section 4.35(3) of the Ordinance and Section 311.-060, RSMo 1969. The defendants’ answer asserted that the plaintiffs City of Kansas City and the Director were without sufficient standing and had no legal ground to file a petition for review of the actions of the Liquor Control Board of Review. Defendants further stated that the Board’s action was in full compliance with the law and that the plaintiffs’ petition failed to state a claim upon which relief could be granted. Although the Board’s order reversing the Director’s denial of the permit is not set forth in either the transcript of the proceedings before the Board or in the transcript in the circuit court, the memorandum opinion filed by the trial court refers to that order and indicates the conclusion of the Board that it was estopped to deny Vaccaro a license because licenses had been issued to him for twenty years, and it would then be an undue burden and hardship on a sixty-year-old man whose lifetime job had been in the liquor business to lose such a permit. The trial court’s memorandum opinion concluded that the City could not be estopped and that the imposition of an apparent lifetime civil disability did not involve a denial of due process. Upon that conclusion, the trial court found the issues in favor of the Director, reversed the Liquor Control Board of Review’s decision and reinstated the Director’s decision of refusal.

On this appeal, appellants Vaccaro and the members of the Liquor Control Board of Review raised two points. First, that the trial court erred in ruling that the City was not estopped from enforcing its Ordinance in the particular fact situation here, citing Murrell v. Wolff, 408 S.W.2d 842 (Mo.1966), and Mora v. Hastings, 416 S.W.2d 642 (Mo.App.1967). Second, that the trial court erred in ruling that the statute and Ordinance were not an unreasonable denial of substantive due process as applied to Vaccaro’s right to life, liberty, and the pursuit of happiness, citing Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), and DiCarlo v. State Liquor Authority of New York, 54 Misc.2d 482, 282 N.Y.S.2d 834 (1967), modified, 29 A.D.2d 757, 287 N.Y.S.2d 960 (1968).

However, those issues need not be determined here inasmuch as a threshold question of jurisdiction is presented. As will be seen, the Director of Liquor and Amusement Control and the City of Kansas City had no standing to appeal the decision of the Liquor Control Board of Review. “Only a person with a ‘legal standing’ can resort to the courts for relief from action of an administrative agency . . .. The question of a person’s legal standing to apply for judicial relief does not touch the merits of a suit, but merely the authority of the court resorted to to entertain the action.” 2 Am.Jur.2d Administrative Law § 575, at 393 (1962); State ex rel. Rouveyrol v. Donnelly, 285 S.W.2d 669 (Mo. banc 1956). “[Wjhere judicial tribunals have no jurisdiction to act, their proceedings are absolutely void.” Randles v. Schaffner, 485 S.W.2d 1, 2 (Mo.1972); Lafayette Federal Savings and Loan Association of Greater St. Louis v. Koontz, 516 S.W.2d 502 (Mo.App.1974); Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840 (1934). We are required to examine this jurisdictional problem sua sponte. Martin v. Martin, 534 S.W.2d 621, 625 (Mo.App.1976); American Hog Company v. County of Clinton, 495 S.W.2d 123, 125 (Mo.App.1973). As stated in 5B C.J.S. Appeal and Error § 1891, at 352-353 (1958): “A judgment rendered without jurisdiction or authority must ordinarily be reversed, regardless of the manner in which the higher court is informed of the lack of jurisdiction. A reversal must follow where the record plainly shows a lack of jurisdiction . and an appellate court may of its own motion reverse a judgment or order rendered without jurisdiction.”

Article V, Section 22 of the Constitution of Missouri establishes the right to judicial review of administrative decisions. The legislature has power to formulate the conditions under which resort to the courts may be had and the persons accorded the right to obtain a review of administrative decisions are to be ascertained from the terms of the statute. Generally in the absence of express statutory authority, no appeal or other review of administrative action is provided for political subdivisions of the state. State ex rel. St. Francois C.S.D. R-III v. Lalumondier, 518 S.W.2d 638 (Mo.1975). “An administrative agency is not a party to a litigation as that term is customarily used and should not be so considered unless the legislature has so provided.” State ex rel. Rouveyrol v. Donnelly, supra at 677. Thus, for example, certain “administrative agencies aggrieved by final decision of the Administrative Hearing Commission” are expressly given the right of judicial review by Section 161.332, RSMo 1969. Similarly, the Director of Employment Security has been given authority to seek judicial review of the decisions of the Industrial Commission under Section 288.-210, RSMo 1969. Even courts of general jurisdiction are limited as to such appeals by the statutory powers granted. Randles v. Schaffner, supra.

In the instant case, the Alcoholic Beverage Control Ordinance does not provide generally for judicial review of the decisions of the Liquor Control Board of Review; and it does not provide specifically for the Director to seek such review. If the respondents have any standing then it must be under the provisions of Supreme Court Rule 100, “Administrative Review,” and Chapter 536, RSMo 1969, “Administrative Procedure and Review.” See State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375, 378 (Mo. banc 1970). Rule 100.03 and Section 536.100 are substantially the same. The Rule provides: “Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such a decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in Rules 100.04 to 100.-08, unless some other provision for judicial review is provided by statute; . . ..”

The recent case of Kostman v. Pine Lawn Bank and Trust Company, 540 S.W.2d 72 (Mo. banc 1976), made a comprehensive and careful examination of whether an administrative officer had “standing” as a “person aggrieved” to seek review of the reversal by an administrative board of appeals of the officer’s own determination. In Kost-man, the Commissioner of Finance of Missouri attempted to appeal the decision of the Missouri State Banking Board which had reversed the Commissioner’s determination upon a bank application. As in this case, the Commissioner purported to act under Section 536.100 and Rule 100.03 in seeking judicial review of the Board’s decision.

In Kostman, the court observed that the statute (Sec. 361.094, RSMo 1969) imposed no restraint or limitation on the scope of the Banking Board’s review of matters coming before it on appeal from actions or refusals taken by the Commissioner. Similarly, in this case, the ordinance (Chapter 4, Article XIV, Sec. 4.82, supra) imposed no restraint or limitation on the scope of the Liquor Control Board of Review’s review of matters coming before it on appeal from actions or refusals taken by the Director of Liquor Control.

It is noted in Kostman that “. the Commissioner is subordinate to the State Banking Board and it is the superior authority.” 540 S.W.2d at 75. It is further observed that “. . . the legislature in its wisdom obviously saw fit to make the State Banking Board . . . composed of five members with variable backgrounds and political allegiances . . . ultimate guardian of the public’s interest at the administrative level as opposed to a single individual such as the Commissioner.” 540 S.W.2d at 76. The opinion asserts, “A virtually unlimited number of persuasive arguments can be marshaled to support the sagacity of the general assembly in withholding authority from the Commissioner of Finance to affirmatively invoke judicial review of decisions of the State Banking Board at any level of the judicial process.” 540 S.W.2d at 76.

Under the provisions of the Alcoholic Beverage Control Ordinance, the City has apparently constituted the Liquor Control Board of Review composed of three members of variable backgrounds as the ultimate guardian of the public’s interest at the administrative level as opposed to a single individual such as the Director.

The Supreme Court further states in Kostman, “In clear and direct language the legislature appears to have spelled out two conditions precedent that must be met before a person has a right to place his grievance from an administrative decision into the stream of judicial review: (1) he must have exhausted all administrative remedies provided by law and (2) he must have been aggrieved by a final administrative decision. The former presupposes him to be a person who possessed some administrative remedy. What administrative remedy did the Commissioner possess to exhaust? The obvious answer is none. It is beyond logical comprehension to envision the Commissioner appealing his own decision or refusal to the State Banking Board. Under Section 536.100, supra, the Commissioner had no right to invoke judicial review of the State Banking Board’s decision at the circuit court level in the first instance, and this legal inability to do so stays with him throughout, even on appeal, since an appeal from the circuit court to the appellate court level is but the final step in the overall process of judicial review of decisions of administrative tribunals.” 540 S.W.2d at 75-76.

The foregoing language is precisely in point to the situation presented in this case. The Director of Liquor and Amusement Control had no administrative remedies to exhaust and obviously would not have appealed his own determination to the Board of Liquor Control Review. The Director’s right to invoke judicial review would be no different than that of the Commissioner in Kostman. It is further pointed out in Kost-man that no official act of the Commissioner was involved in the appeal inasmuch as the Commissioner’s determination had been reversed by the Banking Board and had become a nullity ab initio. It is stated at 540 S.W.2d at 78: “By his appeal to this court the Commissioner seeks to upset the official act of the State Banking Board. He does not seek to uphold or vindicate the official act of the State Banking Board and no presently viable act on his own exists to be vindicated or upheld.” That was precisely the Director’s position in this case. By his appeal to the circuit court the director sought to upset the official act of the Liquor Control Review Board. He did not seek to uphold or vindicate that official act and at that time no presently viable act of the Director existed to be vindicated or upheld.

The opinion in Kostman also cited and relied upon the case of Mortensen v. Pyramid Savings and Loan Association of Milwaukee, 53 Wis.2d 81, 191 N.W.2d 730 (1971) and Minn. Bd. of Health v. Gov., etc., App. Bd., 304 Minn. 209, 230 N.W.2d 176 (1975). In Mortensen it was held that the Commissioner of Savings and Loan in Wisconsin was not an “aggrieved party” so as to seek judicial review of a decision of the Savings and Loan Review Board which had reversed the Commissioner’s decision. It was there stated: “An administrative officer is not a party for the purposes of seeking a review of a reversal of his determination by a board of appeals. See 2 Am.Jur., Administrative Law, p. 177, sec. 368. It is stated in 2 Am.Jur., Administrative Law, p. 397, sec. 576 ‘An administrative officer who made an original decision which was appealed to a higher administrative authority was held to have no interest as a party which would entitle him to appeal from the overruling of his decision.’ To the same effect is 73 C.J.S. Public Administrative Bodies and Procedure § 159, p. 497; Dept. of Labor v. Unemployment Comp. Bd. of Rev. (1949), 362 Pa. 342, 67 A.2d 114. Unless the statute expressly so provides, an aggrieved party is one outside the decisional process who is directly affected.” 191 N.W.2d at 731.

In Minn. Bd. of Health v. Gov., etc., supra, the issue was whether the State Board of Health was a “person aggrieved” so as to seek judicial review of a decision of the Certificate of Need Appeal Board which reversed the decision of the Board of Health. The Minnesota Supreme Court held that the Minnesota Board of Health was not a “person aggrieved” so as to have standing to seek judicial review, quoting Mortensen, supra.

The court in Kostman concluded “. that the commissioner of finance is not a person aggrieved by a decision of the banking board and therefore does not have standing to seek judicial review of the banking board’s decision.” 540 S.W.2d at 81.

Other decisions in the state have come to the same determination. In State ex rel. Rouveyrol v. Donnelly, supra, it was held that the Commissioner of Finance under the then existing statute had no “standing” to invoke a judicial review of a decision of the Board of Bank Appeals. It was asserted that the holding was in accord with the weight of authority with respect to the right of a public officer or a board to appeal in the absence of statutory provision.

In the case of State ex rel. St. Francois C.S.D. R-III v. Lalumondier, supra, it was held that no appeal or review was provided for political subdivisions of the state in regard to alleged underassessments by a County Board of Equalization in the absence of express statutory authorization.

In Hertz Corp. v. State Tax Commission, 528 S.W.2d 952 (Mo. banc 1975), the City of St. Louis sought judicial review of the action of the St. Louis County Assessor as affirmed by the St. Louis County Board of Equalization, State Tax Commission, and the St. Louis County Circuit Court as to assessments against the City’s tenants at Lambert St. Louis Municipal Airport. Although it was concluded that the City had an interest in the controversy, it was held that the City was not an “aggrieved party” within the meaning of Section 536.100 RSMo. Also see In re Roadway in Section 21, Township 60, Range 6, West, 357 S.W.2d 919 (Mo.1962), where a landowner was held not to have standing to appeal an order of the County Court closing a roadway.

In this case, the Director of Liquor Control and the City of Kansas City are not “aggrieved persons” by reason of the decision of the Liquor Control Board of Review and therefore do not have standing to seek judicial review of the decision of the Liquor Control Board. Since the Circuit Court did not have jurisdiction, its judgment is reversed, and the determination of the Liquor Control Board of Review is reinstated.

All concur.

      . All references are to Kansas City, Mo. Code of General Ordinances, ch. 4 (1967).


author: FOREST W. HANNA, Special Judge.

text:
    Virginia HUGHES et al., Appellants, v. Catherine DWYER, Executrix of the Estate of Lonnie Lance and Catherine Dwyre, Individually, Respondents.
    No. KCD 27618.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Grace S. Day, St. Joseph, for appellants.
    J. W. Roberts, St. Joseph, for respondents.
    Before SHANGLER, P. J., and HANNA, O’LEARY and L. SMITH, Special Judges.
   FOREST W. HANNA, Special Judge.

Mr. Lonnie Lance executed his will the day after he had been convicted and sentenced to a term of two (2) years in the state penitentiary for arson. On the 20th day of October, 1959, Mr. Lance went to his attorney’s office, alone, where he told his attorney what he wanted in his will. It was dictated, typed and signed while he remained at the office, all within an hour or less. Because Mr. Lance could not read or write, the dispositive and disinheriting provisions of the will were read to him before it was signed by his mark. Thereafter, the testator left the attorney’s office alone. He was received at the state penitentiary on the 23rd day of October, 1959. After his confinement he returned to Maitland where he resided with Catherine Dwyer until he died on November 4, 1972. He left seven descendants (the plaintiffs) as his legal heirs and each was specifically disinherited by the will. This case was tried as a will contest to a jury and resulted in a verdict in favor of the defendants. The court entered its judgment that the document dated October 20, 1959, was the last will and testament of Lonnie Lance.

The plaintiffs raise three points on this appeal. The first issue raised is that the testator was incapable of making and executing a will as his civil rights were suspended by Section 222.010 RSMo which states:

“A sentence to imprisonment within the state department of corrections for a term of less than life suspends all civil rights of the persons so sentenced during the term thereof . .

Upon conviction for a felony the English Common Law assessed the additional penalty of “attainder” which included the concepts of forfeiture, corruption of the blood and civil death. This resulted in the will of a felon being void as to the Crown because the property of such a person was forfeited to the Crown. A partial amelioration of the rigors of the common law doctrine occurred when Missouri abolished forfeiture and corruption of the blood, Section 556.300, RSMo 1969. The concept of civil death has been preserved by Section 222.010 and although there are decisions construing the section there are no decisions specifically ruling whether a convict can make a will. It is evident that the civil death statute, being penal in nature, has received a rigid interpretation from the Missouri courts. But, actions by or against a convict actually imprisoned have been held void when affecting his property rights. Williams v. Shackleford, 97 Mo. 322, 11 S.W. 222 (1889) (a deed); McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21 (1910) (a judgment); Murphy v. Barron, 275 Mo. 282, 205 S.W. 49 (1918) (a judgment), and Wamsley v. Snow, 331 Mo. 261, 53 S.W.2d 258 (1932) (execution levied on property).

Such a result has not been reached when the convict is not in actual confinement. This is in part a result of the courts attempting to harmonize the civil disability statute with the convict’s trusteeship statute, Section 460.010, RSMo 1969.

Since the evidence is uncontradicted that Mr. Lance executed his will while he was at liberty and under no confinement and that he was not received at the Missouri State Penitentiary until three days after the execution of the will we must consider the case in that light.

In Ward v. Morton, 294 Mo. 408, 242 S.W. 966 (1922) the plaintiff was sentenced to two consecutive sentences and placed on probation. He never served any time under either of the sentences. Plaintiff argued that he was entitled to an interest in certain real property because the judgment rendered against him in a tax suit by the county collector and a warranty deed executed by him to the property were both void for the reason that plaintiff was under sentence to the penitentiary at the time the judgment was rendered and the deed was made. Both of these events occurred while plaintiff was under no actual restraint as to his liberty and the court held that it was plaintiff’s duty to protect his own property and the civil death statute was not applicable. This case cites with approval Harmon v. Bowers, 78 Kan. 135, 96 P. 51 (1908) where the Kansas civil death statute was almost identical to Missouri’s. The Kansas Supreme Court held that the disability statute suspending civil rights did not begin until the actual date of imprisonment under the sentence and that the execution of a deed before confinement and while execution of the judgment of conviction was stayed by an appeal, was valid. The court stated: “If we should hold that civil rights are suspended the moment sentence is pronounced, the defendant’s punishment would be increased by taking away his civil rights for an indefinite period in excess of the term of imprisonment, which does not begin until the stay allowed upon appeal has expired and he is imprisoned, or possibly when he is in custody to be conveyed to the penitentiary.”

In Cole v. American Railway Express Co., 228 Mo.App. 78, 68 S.W.2d 736 (1934), the court, reading the civil death statute in conjunction with the statutes affording convicts access to the courts through a trustee (Section 460.010), ruled that the civil death statute did not preclude a person convicted, but paroled by the Governor, from filing suit in his own name. The disability created by Section 222.010 was in effect only during actual imprisonment.

The fact that the testator in this lawsuit was not on parole or probation is unimportant, the central point being that he was at liberty and not imprisoned. We rule that Mr. Lance although convicted of a crime and judgment entered thereon, while at liberty, had the legal ability to execute his will and the will was not void by reason of Section 222.010.

Next plaintiffs, argue that the court erred in denying their motion for directed verdict because defendants failed to prove testamentary capacity and the attestation of the will. First, with respect to the question of the evidence of Lance’s capacity we note that within six months of executing his will Lance was involved in a divorce culminating in the written settlement of all his property and a criminal trial on the charge of arson. These events resulted in testimony regarding his capacity from three attorneys: E. E. Richards, Jr., who assisted in the criminal trial and drafted his will; Raymond 0. Sears, his trial counsel in criminal trial and attorney in the divorce proceedings; and Alden Lance, his wife’s attorney in the divorce. These witnesses, along with the subscribing witness to the will, the cashier from Lance's bank and six other friends, businessmen and merchants who dealt with Lance all offered factual testimony that he was of sound and disposing mind and memory as required in Strahl v. Turner, 310 S.W.2d 833, 838 (Mo.1958) and as defined in MAI 15.01. There was sufficient evidence to submit the issue to the jury for their decision.

The argument that defendants failed to prove proper attestation of the will appears to be directed to one point; Mrs. Markt testified she had no conversation with Lance and at no time did he ask her to witness his signing of the will, therefore, she had no intent to witness the will. Section 474.320, requiring two or more competent witnesses to subscribe their names to the will in the testator’s presence means the witness must have the intent to sign as a witness. The defendants cite Baxter v. Bank of Belle, 340 Mo. 952, 104 S.W.2d 265 (1937) to support this principle in their argument but the case is readily distinguishable from the facts here. Lance’s will was witnessed by Mr. Richards, his secretary, Mrs. Mary Lou Markt and Miss Dawson who was ill and in a nursing home at the time of the trial. After reading the disposi-tive clauses to Lance, attorney Richards introduced Mrs. Markt and Miss Dawson and asked testator: “Now is this your will and do you request that . . . myself, Mrs. Markt and Miss Dawson attest it as witnesses?” or words to that effect. Attorney Richards testified that Lance requested the witnesses to sign and they did so in his presence. It provides as evidence that Mrs. Markt had the prerequisite intent to sign as a witness. A testator’s request that the witness attest does not need to be made by express words but may arise from acts, signs and conduct. Strahl v. Turner, supra. The element of intent was established by this testimony and a submissible issue made for the jury.

The plaintiff’s final assignment of error is the trial court’s failure to give their offered Instruction No. 9 authorizing a finding of undue influence from circumstantial evidence. This was not an instruction found in MAI and we note, preliminarily that the court did give MAI 32.18 directing a verdict for plaintiffs on undue influence and MAI 15.03 defining undue influence. We do not rule this point on its merits because at no time has the point been properly presented or preserved. The desire to decide points on their merits is overshadowed by compelling reasons of public policy.

A party must make specific objections to instructions before submission to the jury or in a motion for new trial if the matter is to be preserved for appellate consideration. Rule 78.07; Chambers v. Kansas City, 446 S.W.2d 833, 840 (Mo.1969) and Bremer v. Mohr, 478 S.W.2d 14, 18-19 (Mo.App.1972). It is necessary that the court be specifically advised as to the objection. O’Brien v. City of St. Louis, 355 S.W.2d 904 (Mo.1962). This is so the matter may be properly briefed and allow the trial court an opportunity to correct the error avoiding the delay, expense and hardship of an appeal. Schneider v. Southwestern Bell Telephone Company, 413 S.W.2d 16 (Mo.App.1967).

A search of the transcript reveals that during the instruction conference before submission, the plaintiff simply objected to the court’s refusal to give the instructions, stating no reason. The plaintiff’s motion for new trial charged the court erred in refusing the instruction because it followed Missouri law and permitted the jury to find undue influence by circumstantial evidence. The trial court should have been advised why the instruction should have been given. To state that it followed the law or that it permitted the jury to find undue influence by circumstantial evidence is hardly specific. The specificity requirement of Rule 78.-07 is similar to the “wherein and why” requirement of Rule 84.04(d). The trial court should have been told why Instruction No. 9 should have been given and not having been so advised we rule that the point was not preserved for our attention.

Finding no error in the judgment of the trial court, we affirm.

All concur.

      . Although, the constitutionality of the statute is not raised here and this court is not bound by the decision (Valentine v. State, 541 S.W.2d 558, Mo. en banc, 1976), we note with interest the recent case of Thompson et al. v. Bond et al., D.C., 421 F.Supp. 878, which declared Section 222.010, insofar as it purports to suspend the civil rights of adults sentenced to imprisonment, as unconstitutional because violative of the First and Fourteenth Amendments of the United States Constitution. The case dealt with the rights of convicts to file lawsuits which arise from activities unrelated to their incarceration.


author: TURNAGE, Judge.

text:
    Patricia Kay WILKINSON, Respondent, v. Steven Duane WILKINSON, Appellant.
    No. KCD 27837.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.
    James A. Rahm, Hensley, Rahm & Rahm, Warrensburg, for appellant.
    No appearance for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Steven Wilkinson appeals from an order “retaxing costs” to award Patricia Wilkinson attorney fees. Steven contends the court was without jurisdiction because the order was made more than thirty days after the entry of judgment and no post trial motion was filed; and that attorney fees are not costs. Reversed.

Steven and Patricia were divorced in 1971. By the decree, Patricia was granted the custody of the two minor children born of the marriage. In 1973, Patricia filed a motion to modify the divorce decree by increasing the amount of child support and for an award of attorney fees for the prosecution of that motion. Steven countered with a motion to modify asking that custody of the two children be changed to vest such custody in him.

After a hearing, the court entered an order on August 1, 1974, in which the motion of each party was denied. No post trial motion, as authorized by Rule 73.01, subd. 1(c), was made. Thereafter on September 18, 1974, Patricia filed a motion to “retax costs” in which she recited the court’s order overruling the motions made no provision for the payment of her attorney. The motion concluded with a prayer for the court’s order retaxing the costs to include an attorney fee of $300, to be paid by Steven as a part of the costs.

The record does not show any hearing was held on the latter motion, but on January 10, 1975, the court entered its order which found it had “inadvertently omitted consideration of allowance and taxing of costs as and for attorney fee.” The court then found a reasonable fee would be $300 and ordered the final decree theretofore entered to be modified “to extent of taxing as costs on defendant in sum of $300 as attorney fee.”

Steven first contends the court’s order to retax as costs the attorney fee is invalid because the court was without jurisdiction to enter such order because it was made more than thirty days after the court’s order overruling the motions. He contends under Rule 81.05 the order became final thirty days after it was made on August 1, 1974.

Steven’s argument is well taken. Under Rule 81.05 the court’s order made on August 1,1974, became final thirty days thereafter. After that time the trial court had no further jurisdiction in this matter because no post trial motion was filed. For that reason the order which purported to “retax costs”, but which in reality resulted in the order being modified, is invalid.

There is a further reason the order “retaxing costs” is not valid. Generally attorney fees are not considered as costs. State of Missouri ex rel. Cain v. Mitchell, 543 S.W.2d 785 (Mo. banc 1976). This is true under the Dissolution of Marriage Act because § 452.355, RSMo 1975 Supp., treats court costs and attorney fees separately. Thus, under the general rule and under the specific treatment given to attorney fees and court costs as being separate and distinct, the court could not award attorney fees by “retaxing the costs.” The judgment is reversed.

All concur.