author: MASSEY, Chief Justice.

text:
    J. Dorsey ADAMS, Appellant, v. J. Allen RHODES, Appellee.
    No. 17761.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 15, 1976.
    Rehearing Denied Nov. 19, 1976.
    Hooper, Kerry, Chappell & Broiles, and David F. Chappell, Fort Worth, for appellant.
    Shannon, Gracey, Ratliff & Miller, and Kleber C. Miller and Eugene J. Dozier, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Rhodes obtained judgment for principal, interest and attorney’s fees on a promissory note against Adams, from which the latter has appealed.

Reversed and remanded.

As the case reaches this Court there is no question but that Rhodes’ case on the note sued upon was made out. The controlling question relates to whether on trial Adams had the entitlement to have his sworn affirmative defense of failure of consideration submitted to the jury, and whether there was reversible error because the trial court had not submitted it.

At time immediately prior to the submission of the case to the jury on the charge of the court Adams presented in writing the specially requested issues (in one instrument) as follows:

“J. Dorsey Adams, prior to the submission of the above cause to the jury, requests the submission of the following issues to the jury:

“(1) Did J. Allen Rhodes agree to cancel certain promissory notes held by the Mansfield State Bank in consideration for the Defendant J. Dorsey Adams signing the promissory note of May 30, 1970? Answer: ‘yes’ or ‘no’; Answer_

“(2) Did J. Allen Rhodes fail to secure the cancellation of the promissory notes set forth in Special Issue 1? Answer: ‘yes’ or ‘no’; Answer-”

On the foregoing the following is to be noticed: (a) the record shows that at the time of the execution of the note in question, as well as the time of the execution of the “certain promissory notes held by the Mansfield State Bank” inquired about by the requested special issue, Rhodes was the chief executive officer of the Mansfield State Bank; (b) the record also shows without dispute, and it is conceded, that those same promissory notes inquired about had not been cancelled by the bank. As result the only important part of the requested issues was that listed as No. (1).

At time there was request for Special Issue (1) the trial court had prepared the Charge of the Court pursuant to the provisions of T.R.C.P. 272, “(Charge to the Jury) Requisites.” It is at this stage of the proceedings that the court presents the proposed charge to the attorneys for the respective parties so that they may in turn make their objections thereto and, if necessary, present in writing any specially requested issues, etc., desired to be included in the Charge of the Court. T.R.C.P. 279, “Submission of Issues.”

To be noticed is that in the instructions in the Court’s Charge at time of the court’s presentment, the following was included:

“Answer all questions ‘Yes’ or ‘No’ unless otherwise instructed. Answer ‘Yes’ if you so find from a preponderance of the evidence, as defined hereinabove; otherwise answer ‘No’.”

But for the instruction quoted from the charge there would exist the deficiency in Adams’ specially requested issue, which Rhodes insists does nevertheless exist despite the instruction, viz: that since the burden by the requested issue was not properly placed upon Adams as the complaining party, the trial court was at liberty to refuse to submit it because it did not meet the prescribed requirement that, as requested, it be “in substantially correct wording.”

A specially requested special issue, definition, or explanation cannot be substantially correct if its insertion in the charge in the exact words requested would, upon proper objection, constitute affirmative error upon an appeal by the opponent. 3 McDonald, Texas Civil Practice, 1970 Revised Volume, p. 425, “Jury Trial: Charge,” Sec. 12.33.2, “(Preparation of the Charge,— D. Requests for special Issues, Definitions, and Explanatory Instructions; -(II) Request in Substantially Correct Form);(b) Text.” By the briefs of the parties it is clear that the foregoing is conceded to be a correct statement of the law.

Since by the instruction already in the charge the burden of proof upon the answer sought to be obtained was properly placed on Adams; since from the evidence Rhodes was at all material times the chief executive officer for the bank; since the law settled the answer to Specially Requested Issue (2); and since an affirmative answer would therefore support the affirmative defense plead by Adams on the ground that there had been a failure of consideration for his execution of the note, the trial court erred by refusing to submit the Specially Requested Issue (1).

Neither party has been able to find a decision squarely upon the matter of failure to include in the specially requested issue language which would properly place the burden thereon, nor by our independent search have we found any. Our holding is that there is not the necessity to do so where by other language in the charge there is instruction which properly places this burden as applied to the specially requested issue.

By our review of the evidence adduced on trial we find that there was evidence of probative force and effect which supported Adams’ affirmative defense of failure of consideration. That defense having been properly plead, there was error in refusing submission of the specially requested issue by which Adams might have received a finding in support.

Reversed, with cause remanded for new trial.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Burtis R. HAMMONDS and wife, Norma Hammonds, Individually and d/b/a the Garden Center and Flower Shop, Appellants, v. Ed HOLMES et al., Appellees.
    No. 5615.
    Court of Civil Appeals of Texas, Waco.
    Oct. 21, 1976.
    Rehearing Denied Nov. 18, 1976.
    David K. Line, Dallas, for appellants.
    Chris Harvey, Strasburger, Price, Kelton, Martin & Unis and W. Edward Walts, II, Dallas, Larry Wright, Corsicana, for appel-lees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellants (plaintiffs) Burtis R. Hammonds and Norma Hammonds, wife, Individually and d/b/a The Garden Center and Flower Shop, from summary judgment they take nothing against appellees (defendants) Ed Holmes,. Zane Stites and Corsicana National Bank.

Plaintiffs Hammonds and wife, individually and d/b/a The Garden Center filed this case against defendants Corsicana Bank, Holmes and Stites for wrongful foreclosure of a lien secured by a deed of trust. Holmes was trustee under a deed of trust given by Hammonds and wife to Corsicana Bank covering The Garden Center property. Holmes and Stites were officers of the Bank.

Defendants moved for summary judgment plaintiffs take nothing on the ground the proceedings under which plaintiffs seek recovery of defendants have been subject of a previous lawsuit which was concluded by an Order of Dismissal with Prejudice, thus invoking the doctrine of Res Judicata in bar of plaintiffs’ suit.

The trial court granted defendants’ motions for summary judgment, and rendered judgment plaintiffs take nothing of defendants.

Plaintiffs (appellants) appeal on 2 points:
1) The trial court erred in granting a summary judgment in favor of Holmes and Stites, defendants, under the principles of res judicata, because said defendants are not in privity with the Corsicana National Bank, against whom the prior judgment was obtained.
2) The trial court erred in granting a summary judgment in favor of Corsi-cana National Bank, defendant, under the principles of res judicata, because plaintiffs are herein suing in a capacity different from that in which the prior judgment was obtained.

Burtis R. Hammonds and wife Norma Hammonds filed cause 35-25 against Corsi-cana National Bank asserting a cause of action for wrongful foreclosure [and other asserted torts] growing out of a $35,000 loan the Bank made to the Hammonds. The petition recites that Ed Holmes, Vice President of the Bank constituted a principal actor in the Bank’s alleged actions, and further that Zane Stites is President of the Bank. Such case was settled and terminated on February 7, 1975 by Judgment of Dismissal with Prejudice. Such judgment is final.

On June 6,1975 the instant case was filed by Burtis R. Hammonds and Norma Ham-monds, wife, Individually and d/b/a The Garden Center and Flower Shop, against Ed Holmes, Zane Stites and Corsicana National Bank, alleging plaintiffs theretofore executed a $35,000 note payable to the Bank secured by a deed of trust that Ed Holmes was Trust; that Ed Holmes wrongfully foreclosed on the deed of trust, and individually and in concert with Stites and the Bank ousted plaintiffs from the property and assumed control of the premises and The Garden Center and Flower shop business they conducted.

By the pleadings in the first ease, Ham-monds and wife sought recovery from the Bank for wrongful foreclosure because of the action of its agents, servants and employees, Holmes and Stites. In the pleadings of the second case Hammonds and wife seek recovery for wrongful foreclosure of Holmes and Stites for their individual actions on behalf of the Bank.

Res judicata is the doctrine that a right, question, or fact, distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense, cannot be further litigated in a subsequent suit between the same parties or their privies. Davis v. First National Bank of Waco, S.Ct., 139 Tex. 36, 161 S.W.2d 467.

Both the first and second suits sought recovery for an asserted wrongful foreclosure growing out of the lending of money by the Bank to the Hammonds. The right, question or fact to be determined in the second case is the same identical right, question and fact determined by the Judgment of Dismissal with Prejudice in the second case.

Plaintiffs (appellants) assert that both the parties plaintiff, and the parties defendant are different in the two cases.

In the first case the parties plaintiff were Burtis R. Hammonds and wife Norma Hammonds; in the second case the parties plaintiff were Burtis R. Hammonds and Norma Hammonds, wife Individually and d/b/a The Garden Center and Flower shop.

In the first case plaintiffs placed no limitation on the capacity in which they brought suit. They could have litigated in that case in any and all capacities. The rule of res judicata bars plaintiffs’ action in the second action; Ogletree v. Crates, Tex. S.Ct., 363 S.W.2d 431; as does the doctrine of collateral estoppel; Benson v. Wanda Petroleum Co., Tex.S.Ct., 468 S.W.2d 361.

In the first case the Bank was sole party defendant; in the second case the Bank and two of its officers who acted for the Bank in the asserted wrongful foreclosure were parties.

Holmes and Stites are officers, agents, servants, and employees of the Bank. It seems to be established law that master and servant are not joint tort fea-sors. Spradley v. McCraekin, Tex.Civ.App., NRE, 505 S.W.2d 955; Marange v. Marshall, NRE, Tex.Civ.App., 402 S.W.2d 236.

In Marange the plaintiff recovered final judgment against an employer for a tort of its employee. Later by separate suit the plaintiff sought recovery against the employee individually.

Through the doctrine of respondeat superior the court held the employer-employee to be in privity. Through the doctrine of res judicata, the court held plaintiff, by election, waiver and estoppel was barred from recovery under the doctrine of res judicata.

Holmes and Stites thus are not liable to Hammonds and wife since judgment was previously entered in the first suit against the Bank, their employer, and they are in privity with their employer.

See also, Massoth v. Staples, Okl.,S.Ct., 481 P.2d 141, which cites Marange v. Marshall, supra, with approval, and adopts the rule and reasoning of such ease as the law of Oklahoma.

Plaintiffs (appellants) points are overruled.

AFFIRMED.

      . The deed of trust reflects it is the same deed of trust in the prior case.


author: RAY, Justice.

text:
    Cathy Lynn MYERS, Appellant, v. Lynn S. PATTON, Managing Conservator, Appellee.
    No. 8377.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 26, 1976.

      Ebb B. Mobley, III, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for appellant.
    R. L. Whitehead, Jr., Longview, for appel-lee.
   RAY, Justice.

This case involves the termination of the parent-child relationship between appellant, Cathy Lynn Myers, and her son. The natural father of the child has never been married to Cathy.

A petition was filed on behalf of Cathy Lynn Myers to terminate her parent-child relationship with her two-day-old son. An affidavit of status and an affidavit for citation by publication accompanied the petition. The trial court then ordered the child removed from the hospital and delivered to a law office. Subsequently, Cathy moved to withdraw or dismiss her petition, her affidavit and her consent to termination and subsequent adoption.

The attorney who prepared the petition and affidavit for Cathy then filed an intervening third party petition for termination of the parent-child relationship between Cathy and her son. The attorney, Appellee Lynn S. Patton, personally was the interve-nor, and non-parent, non-agency petitioner. Cathy then filed a writ of habeas corpus seeking the return of her son.

The trial was to the court without a jury. The Gregg County Domestic Relations Court found grounds for termination, and named Lynn S. Patton as managing conservator of the child.

Cathy Lynn Myers, appellant, has perfected her appeal and submits four points of error for our consideration.

The evidence reveals that a couple employed the services of Patton to represent them in adopting the child born to Cathy. Patton discussed the matter with Cathy and made arrangements to pay the doctor and hospital bills for her. Cathy agreed to give up the child for adoption. Thereafter, two secretaries from Patton’s law office took the affidavit of relinquishment (which was styled “Voluntary Petition for Termination”) to the hospital and observed Cathy Lynn Myers read it, after which she voluntarily signed the affidavit in the presence of two witnesses and acknowledged the affidavit before a notary public.

Patton filed the petition for termination (that had been signed by Cathy) with the clerk of the Court of Domestic Relations in Gregg County. The “Voluntary Petition for Termination of Parent-Child Relationship,” “Affidavit of Status,” and the “Affidavit for Citation by Publication” were all signed on August 18, 1975, and were later filed on the same day with the clerk of the court. Costs were deposited by Patton, and the trial court then ordered the child removed from the hospital and delivered to Patton’s law office.

On October 1, 1975, appellant moved to dismiss her voluntary petition, to revoke her affidavits and to have her child returned to her as the natural parent.

On October 1, 1975, Patton then filed a petition seeking termination of Cathy’s parental relationship. The basis of the intervention was abandonment and execution of an affidavit of relinquishment, in addition to the best interests of the Myers infant.

The trial court concluded that the “Voluntary Petition for Termination of Parent-Child Relationship” was also an affidavit of relinquishment under Section 15.03 of the Texas Family Code.

The affidavit of relinquishment states on its face that it is irrevocable for sixty (60) days and not subject to dismissal, in terms of Section 15.03(d), Texas Family Code. Patton filed a petition for termination based upon the irrevocability of the affidavit and also relied on the fact that Cathy voluntarily left the child in the possession of another, not the parent, and expressed an intent not to return.

The trial court granted Cathy’s motion for non-suit, found the affidavit irrevocable, and found that Cathy did leave the child in the possession of another, not the parent, and expressed an intent not to return. The court further found that the best interests of the child would be served by termination and entered a judgment terminating the parental rights of Cathy Lynn Myers.

Appellant’s first point of error is that:

“The trial court erred in finding that Cathy Myers knowingly, intentionally, and voluntarily signed an affidavit of relinquishment since such finding was against the great weight and preponderance of the evidence.”

Appellant Myers does not challenge the finding of the trial court that the petition for termination was also an affidavit of relinquishment as provided for in Section 15.03, supra, nor does she challenge the irrevocability of the affidavit. The only fact of the affidavit which she attacks is the voluntariness of the signing. There is evidence to support the trial court’s finding that Cathy voluntarily, knowingly and intentionally executed the affidavit of relinquishment. Witnesses testified that at the time of the execution of the affidavit Cathy knew what she was signing, that no undue influence was practiced on her, that she was under no medication that would render her incapable of knowing what she signed, that she was not emotional, there was no argument, and that she did not appear to be in any discomfort, that the documents were read to her, that they were explained to her, that she understood what she was signing, that she did not complain that she could not think clearly, that no threats, undue influence or persuasion were used to have her execute the affidavit, that the execution was freely and voluntarily done, and that Cathy acknowledged that the facts contained in the petition were true and correct. There was further testimony that it was explained to Cathy that she could not change her mind and that she could not get the baby back.

Appellant insists that she was the victim of undue influence because the signing of the documents took place on the second day she was confined to the hospital following unexpected surgery for the delivery of her baby, that she had been denied a request to see and know the sex of her baby, that she was in pain from an intravenous injection in her left arm, that she was entitled to pain medication upon request, and had taken drugs prior to her signing the papers; and further, that her mother had advised her that it would be better for Cathy to go ahead and sign the papers because she (the mother) could not help Cathy and there was not any way that the mother could take care of the child. We do not conclude that such was undue influence within the holding of Methodist Mission Home of Texas v. N_A_B_, 451 S.W.2d 539 (Tex.Civ.App., San Antonio 1970, no writ). It is our opinion that this case is similar to Hamer v. Hope Cottage Children’s Bureau, Inc., 389 S.W.2d 123 (Tex.Civ.App., Dallas 1965, no writ). There the court stated that the mother could not withdraw her consent for adoption. The force of adverse circumstances (that it would be difficult for the mother to take care of the child) might cause the mother to consent to termination and adoption, but the pressure of those circumstances was the result of the illicit acts of appellant Myers and not due to any overreaching, fraud or misrepresentation on the part of Lynn S. Patton. Whether the affidavit was voluntarily signed was a fact issue for determination by the trial court. It is our opinion that the evidence supported the finding of the court that the affidavit of relinquishment was voluntarily executed by appellant. Appellant’s first point of error is overruled.

Points of error two and three state that the trial court erred in finding that appellant expressed an intent not to return at the time of delivery of her baby, since there was no evidence to support that finding, or in the alternative the evidence was insufficient to support the trial court’s finding. Both points will be overruled.

The affidavit of relinquishment executed by Cathy states that she tendered the child to the Court in its capacity of managing conservator and requested the placement of the child for adoption and the appointment of such other conservators as might appear to be in the child’s best interest. The child was delivered to and left in the possession of another, not the parent. There was testimony that Cathy stated that she could not take care of the child, nor could she expect her parents to take care of it and that she planned to go to Louisiana to seek a job. The evidence showed that after her release from the hospital, she left town and moved to Arkansas for the purpose of securing employment. We believe that when the appellant left the child in the hands of the court for placement for adoption she declared her intent to abandon the child to others. We hold there was sufficient evidence to support the trial court’s findings that appellant had left the child in the possession of another, not the parent, with an express intent not to return.

Appellant insists in her point of error number four that Section 15.03 of the Texas Family Code is unconstitutional.

“This is the first instance in Texas law of a provision authorizing waiver of process prior to the filing of suit. Although the constitutionality of provisions of this kind has been questioned, opinions of the Supreme Court of the United States indicate that a party may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether. National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311 [, 84 S.Ct. 411, 11 L.Ed.2d 354] (1964). More recently, the court sustained the validity of a cognovit note which authorized confession of judgment by an attorney who was not retained by the defendant. The criterion for constitutionality in that case was that the defendant ‘voluntarily, intelligently and knowingly’ waived its right to notice and hearing, with ‘full awareness of the legal consequences.’ D. H. Overmyer Co. v. Frick Co., 405 U.S. 174 [, 92 S.Ct. 775, 31 L.Ed.2d 124] (1972). Under the authorization contained in phrase (2), only an affidavit given to an authorized agency of the state may contain a waiver unlimited in time. Otherwise, the waiver may be for a maximum period of 60 days under subsection (d), which is actually a very limited time.” Smith, Parent & Child, Texas Family Code Symposium, 5 Tex.Tech.L.Rev. 437, 443 (1974).

We hold Section 15.03 to be constitutional. Point of error number four is overruled.

The judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    B. L. NELSON, Individually and d/b/a Vista Hills Mobile Home Community, a partnership, Appellant, v. TEXAS POWER & LIGHT COMPANY, Appellee.
    No. 5607.
    Court of Civil Appeals of Texas, Waco.
    Oct. 28, 1976.
    Rehearing Denied Nov. 18, 1976.
    Robert M. Greenberg, Greenberg & Bach, Dallas, for appellant.
    Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellee.
   HALL, Justice.

Texas Power & Light Company brought this suit against W. Jay Watson and B. L. Nelson, individually, and d/b/a Vista Hills Mobile Home Community, a partnership, to recover the balance allegedly owing on a written contract under which T.P. & L. furnished and installed underground electric facilities at Vista Hills Mobile Home Park in the City of Waxahachie.

The contract sued upon recites that it is between T.P. & L. and “W. Jay Watson, an individual, hereinafter called ‘Customer’ and that “Customer owns the 274 lot Vista Hills Mobile Home Park.” Excepting T.P. & L.’s representative, the contract is signed only by “W. J. Watson, Owner.” The record shows without dispute that at the time Watson executed the contract, Vista Hills Mobile Home Park was owned and being developed by Watson and B. L. Nelson as general partners under the business name of Vista Hills Mobile Home Community.

Trial was to a jury. In its answers to the first two special issues, the jury found that when Watson signed the contract he was acting as agent for the partnership and within the scope of his authority. The evidence supports these findings. Based upon these findings (and others not in question) judgment was rendered in favor of T.P. & L. against Watson, Nelson, and the partnership, jointly and severally, for $35,073.00.

Only Nelson appeals. He asserts that because the contract recites that it was signed by Watson in an individual capacity, the proof which shows the existence of the partnership and that Watson was acting for it when he dealt with T.P. & L. was admitted in violation of the parol evidence rule, and that, accordingly, the jury’s answers to special issues 1 and 2 are not supported by probative evidence. We disagree.

With exceptions, the parol evidence rule prohibits the introduction of proof to contradict or vary the terms of a contract written in unambiguous language. However, where the principal to a contract is not disclosed in the agreement, extrinsic evidence is ordinarily admissible to show the principal and to hold him liable upon a contract made in the name of the agent for his benefit. Texas Land and Cattle Co. v. Carroll, 63 Tex. 48, 52 (1885); Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824, 826 (Tex.Com.App.1931, opinion adopted); 23 Tex.Jur.2d 558, Evidence, § 374. This proof does not vary the terms of the contract, “but to [brings] in a new party, whom the law holds bound by the reason of his relation to the party in whose name it is executed for his benefit.” Heffron v. Pollard, 73 Tex. 96, 11 S.W. 165, 166 (1889). There are no exceptions to the application of this rule in the record before us. The proof in question was properly admitted.

The judgment is affirmed.


author: McCLOUD, Chief Justice.

text:
    Sydell BERMAN, Individually, et al., Relators, v. The Honorable Weldon KIRK et al., Respondents.
    No. 5001.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 9, 1976.

      Johnny M. Moore, Mays, Moore, Dickson & Roberts, Inc., Sweetwater, Harold B. Ber-man, Berman, Fichtner & Mitchell, Dallas, for relators.
    Stanley P. Wilson, McMahon, Smart, Wilson, Surovik & Suttle, Abilene, for respondents.
   McCLOUD, Chief Justice.

Relators, Sydell Berman, Individually, and Sydell Berman and First National Bank in Dallas, as Independent Executors for the Estate of Max Berman, Deceased, and Perry Brothers, Inc., seek in this original proceeding writs of mandamus and prohibition to compel the Honorable Weldon Kirk, Judge of the 32nd Judicial District Court of Nolan County, Respondent, to set aside an order entered by Judge Kirk overruling Re-lators’ motion to abate an action pending in Judge Kirk’s court.

Relators contend that Irving A. Loeb, who was an indispensable party to the pending action, died during trial on October 28, 1976. On November 3, 1976, Relators moved for abatement of the pending cause until the heirs or legal representative of Irving A. Loeb were properly joined. Loeb was both a defendant and cross-plaintiff. The court overruled Realtors’ motion to abate and ordered separate trials under Rule 174, T.R.C.P.

Relators urge that upon the death of Irving A. Loeb, his estate became an indispensable party as defined in Rule 39, T.R. C.P., and that to continue the trial in the absence of such indispensable party constitutes fundamental error. Respondent contends that this court is without jurisdiction to issue the writs requested. We agree.

Our jurisdiction to issue writs of mandamus is limited by Articles 1823 and 1824, Tex.Rev.Civ.Stat.Ann. Under these statutes, Courts of Civil Appeals may only grant writs of mandamus to protect or enforce the jurisdiction of the Court, or to compel a judge of a District or County Court to proceed to trial and judgment in a cause. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Cogdell v. Williams, 461 S.W.2d 187 (Tex.Civ.App.—Eastland 1970); Chapa v. Betts, 534 S.W.2d 446 (Tex.Civ.App.—Austin 1976); Longbine v. Johnson, 347 S.W.2d 772 (Tex.Civ.App.—Amarillo 1961); Julian v. Hoffman, 520 S.W.2d 935 (Tex.Civ.App.—Dallas 1975); Guillory v. Davis, 527 S.W.2d 465 (Tex.Civ.App.—Beaumont 1975); Parr v. Carrillo, 526 S.W.2d 250 (Tex.Civ.App.—San Antonio 1975).

Relators rely upon South End Development Co. v. Holland, 248 S.W.2d 1013 (Tex.Civ.App.—Galveston 1952) which held that the Court of Civil Appeals had jurisdiction to grant writs of mandamus and prohibition to prevent trial of a “cause until, and unless, all necessary parties thereto” were made parties to the suit. The holding is inconsistent with the rule announced in Crane v. Tunks, supra. Also, Rushing v. Bush, 260 S.W.2d 900 (Tex.Civ.App.—Dallas 1953, writ dism’d.) relied upon by Realtors is not controlling. There the trial court erroneously refused to proceed to trial against a defendant properly served.

Relators are not seeking to enforce or protect the jurisdiction of this Court, or to compel the trial court to proceed to trial and judgment. The petition seeking writs of mandamus and prohibition is dismissed for want of jurisdiction.

      . Article 1823: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts. Id.”
      Article 1824: “Said Courts or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature of the case may require. Acts 1st C.S., 1892, p. 25; Acts 1923, p. 110; Acts 1929, 41st Leg., p. 68, ch. 33, § 1.”


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronnie Dale CARROLL, Defendant-Appellant.
    No. 10234.
    Missouri Court of Appeals, Springfield District.
    Oct. 20, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lawrence J. Permuter, Paskal, Edwards & Olian, St. Louis, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Ronnie Dale Carroll was convicted of the forcible rape of his 70-year-old aunt. A jury trial was waived, and the court found defendant guilty and assessed punishment at 25 years imprisonment. In this appeal defendant contends the trial court erred in denying his motions for a continuance and for a hearing on his psychiatric examination. We reverse and remand the case to the circuit court for further proceedings to determine whether defendant was competent to stand trial. § 552.-020, RSMo 1973 Supp.

The sequence of events and proceedings leading up to defendant’s trial on December 1, 1975 (all dates are 1975), are relevant to the issues in this appeal.

The information charging defendant with the rape of his aunt was filed in Scott County on March 21. The trial was later set for May 29. On May 22 defendant applied to disqualify Honorable Marshall Craig, the regular circuit judge of Scott County, and the Honorable Rex. A. Henson of the 86th Judicial Circuit was assigned to hear the case as special judge. On June 16 the trial date was rescheduled for July 25. Defendant then on July 17 applied for a change of venue and the cause was transferred to Butler County on July 21. On July 24, the day before the scheduled trial date, defendant filed a motion for a mental examination pursuant to § 552.020. At his formal arraignment the following day, defendant entered a plea of not guilty by reason of a mental disease or defect. On the same day the court sustained his motion for a mental examination and ordered that defendant be taken to the state hospital at Pulton for an examination pursuant to § 552.020.

The written report of the examining doctors at Fulton was filed with the trial court on August 29, although counsel for defendant asserts he did not receive a copy of the report until October 9. This report indicated that defendant was competent to stand trial. On October 14 defendant moved for a further psychiatric examination. This motion was sustained by the court on November 3, on the condition that such further examination be made at defendant’s expense and completed prior to the trial date set for December 1. On November 12 defendant filed a motion to set aside the examination and report of the doctors at Fulton on the ground that he had not been examined by a certified psychiatrist. This motion was denied on November 20.

When the case was called for trial on December 1, defendant filed a motion for a hearing on his psychiatric examination pursuant to § 552.020(6). He also moved for a continuance so that he could have additional time to obtain funds for a psychiatric examination by a physician of his own choosing. Both motions were denied and the court proceeded with the trial.

We reject defendant’s contention that the trial court erred in denying his motion for a continuance. Although Supreme Court Rule 25.08 provides that continuances may be granted for good cause shown, it is well settled that an application for a continuance in a criminal case is addressed to the sound discretion of the trial court. This discretion is wide in scope, and the appellate court will not interfere unless it is clearly shown that such discretion has been abused. State v. LeBeau, 306 S.W.2d 482, 486 (Mo.1957); State v. Hill, 530 S.W.2d 50, 51 (Mo.App.1975); State v. Bolden, 525 S.W.2d 625, 631 (Mo.App.1975).

We have reviewed the record of this case and find no abuse of discretion by the trial court in denying the continuance. When defendant moved for the continuance and additional time to obtain funds to pay a doctor of his own choosing to conduct a mental examination, the court reviewed the history of the proceedings outlined above and found that defendant had been given ample time to obtain another examination. Although counsel for defendant stated he did not receive a copy of the report on the Fulton examination until October 9 and his subsequent motion for a further examination was not sustained until November 3, we cannot say the trial court clearly abused its discretion in denying another continuance. The case was already ten months old and several times the trial had been continued for the reasons herein enumerated. The point is denied.

Defendant’s remaining point concerns the failure of the trial court to hold a hearing on his competency to stand trial. § 552.020 provides that a written report of the psychiatric examination shall be filed with the clerk of the court and shall contain an opinion as to defendant’s competency to stand trial. § 552.020(6) then provides as follows:

If neither the state nor the accused nor his counsel contests the opinion . . , the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested the court shall hold a hearing on the issue. . . . (emphasis added).

Defendant filed his motion for a hearing on the psychiatric examination on December 1, the trial date. This motion stated that defendant contested the psychiatric report from Fulton and asked for a hearing with the right to summon and cross-examine the physicians who conducted his examination, pursuant to § 552.020. The court denied the motion on the ground it was not filed in time.

We are compelled by controlling decisions of our Supreme Court to hold defendant was entitled to a competency hearing, even though his motion for such was not filed until the day of the trial. In State v. Stock, 463 S.W.2d 889 (Mo.1971), the court held that the procedure to obtain a hearing on the issue of competency may be invoked anytime prior to sentencing. The court said, 463 S.W.2d at 894:

“We are of the opinion that appellant was entitled to a hearing. As noted in State v. Lowe, Mo., 442 S.W.2d 525, § 552.020, pertaining to mental disease or defect excluding fitness to proceed with trial does not require that the motion provided for be filed at any particular time, and § 552.010 provides that no person who lacks such capacity shall be tried, convicted or sentenced so long as the incapacity exists. This implies that the motion can be made any time before sentencing. In McCormick v. State, Mo., 463 S.W.2d 789 this court stated that § 552.-020 requires only that the trial court may hold a hearing on the issue of competency to stand trial on its own motion, and shall hold a hearing when the psychiatric report made pursuant to par. 3 of § 552.020 is contested.”

Other cases have also construed § 552.020(6) to mean that the trial judge has discretion only when the psychiatric report is not contested. If the report is contested, the court must hold a competency hearing. Newman v. State, 481 S.W.2d 3, 6 (Mo.1972); Boyer v. State, 527 S.W.2d 432, 436 (Mo.App.1975); Bibbs v. State, 504 S.W.2d 319, 323 (Mo.App.1974), cert. denied, 419 U.S. 852, 95 S.Ct. 95, 42 L.Ed.2d 84 (1974).

The state argues that defendant’s only objection to the Fulton examination was that it was conducted by a doctor of osteopathy and not a certified psychiatrist. It then argues that this was a completely mer-itless objection and thus any error in failing to grant defendant a competency hearing was not prejudicial. Although our Supreme Court has not decided this question, two recent cases from the St. Louis District hold that a doctor of osteopathy is a “physician” within the meaning of § 552.020. State v. Mullen, 532 S.W.2d 794, 798 (Mo.App.1975); Norwood v. State, 529 S.W.2d 465, 466 (Mo.App.1975). We do not think it necessary to rule this question, because the record shows that defendant’s objections to the psychiatric report were not so narrow as the state contends. Defendant’s motion for a hearing on the psychiatric examination stated that he contested the report and asked for a hearing with the right to summon and cross-examine the physicians who conducted the examination. Although counsel for defendant stated to the trial court that the basic ground of contest was that the report was not made by a certified psychiatrist, he also stated there were other points of challenge. Under these circumstances, defendant should have been given a hearing to determine his competency to stand trial, as provided in § 552.020(6).

We believe the proper relief in this case is to remand the case to the trial court so that it may hold a hearing to determine whether defendant was competent to stand trial on December 1, 1975. Although the United States Supreme Court has recognized the hazards of retrospective competency hearings, there is no per se rule against such. United States ex rel. McGough v. Hewitt, 528 F.2d 339, 343 (3d Cir. 1975); Barefield v. State of New Mexico, 434 F.2d 307 (10th Cir. 1970) cert. denied, 401 U.S. 959, 91 S.Ct. 969, 28 L.Ed.2d 244 (1971); Harkins v. State, 494 S.W.2d 7, 13 (Mo.1973). The trial was held only one year ago, and the trial court will have the benefit of its own recollections and the trial transcript in evaluating defendant’s competency as of that time. United States v. Makris, 535 F.2d 899, 904 (5th Cir. 1976); United States ex rel. McGough v. Hewitt, supra, 528 F.2d at 344. In addition, the psychiatric report from Fulton and presumably the examining doctors will be available to shed some light on the issue. Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973); Crail v. United States, 430 F.2d 459, 461-462 (10th Cir. 1970).

In view of the foregoing we reverse the judgment and remand the cause with directions that the trial court hold the “hearing on the issue” as provided in § 552.020(6), and after determination of that issue, then, depending upon its findings, accord defendant allocution, re-sentence him and enter a new judgment or take the action contemplated by par. 7 of § 552.020, and such other action as is proper under the circumstances. State v. Stock, 463 S.W.2d 889, 895 (Mo.1971). It is so ordered.

All concur.

      . All further statutory references are to RSMo 1973 Supp., and V.A.M.S.1976 Supp.

      . § 552.020(4) requires the clerk of the court to deliver copies of the report to the prosecuting attorney and to the accused or his counsel.

      . In State v. Terry, 472 S.W.2d 426 (Mo. banc 1971), the court did not reach the question of whether § 552.020 requires an examination by a board-certified psychiatrist, since there was evidence that one of the examining doctors was a board-certified psychiatrist.

      . See, Drope v. Missouri, 420 U.S. 162, 182, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 387, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

      . See also, Bruce v. Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976); Carroll v. Beto,446 F.2d 648, 649 (5th Cir. 1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1229, 31 L.Ed.2d 488 (1972); Conner v. Wingo, 429 F.2d 630, 637-640 (6th Cir. 1970), cert. denied, 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 121 (1972).


author: STEWART, Judge.

text:
    Earl C. KOESTER, II, et al., Plaintiffs, v. Roscoe KOESTER and Eula G. Koester, his wife, Defendants-Appellants, v. LUCAS AUTO SALES, INC., Intervenor-Respondent.
    No. 37112.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 26, 1976.

      Jeremiah Nixon, Dana A. Hockensmith, Thurman, Nixon, Smith, Howald, Weber & Bowles, Hillsboro, for defendants-appellants.
    Nicholas G. Gasaway, Hillsboro, for plaintiffs.
    Robert C. Dodson, Festus, for intervenor-respondent.
   STEWART, Judge.

This appeal arises out of a judicial sale of real property located in Jefferson County under an interlocutory judgment of partition by the Circuit Court of Jefferson County. Defendant appeals from the final judgment approving the sale to intervenor, Lucas Auto Sales, Inc. We affirm.

Plaintiffs filed this action in partition with respect to certain real estate known as the “Mill Lot” in Festus, Missouri, in which the parties held undivided interests as tenants in common.

The notice of sale was prepared by plaintiffs’ attorney and was properly advertised by the sheriff. The notice of sale provided that the sale would “commence promptly at 10:00 a. m.” on February 26, 1975. It also provided:

“Terms of said sale are such that the purchaser may pay ten percent (10%) of the amount of his bid at the time of the sale with the remainder to be paid in cash within thirty (30) days after the date of the sale with interest at eight per cent (8%).”

On February 26, 1975, the sheriff announced the sale in open court and promptly at 10 a. m. opened the bidding at the appointed place. There were approximately nine persons present in addition to the sheriff. The property was “knocked down” at $9,000.00 to a Mr. Havin who was bidding on behalf of Intervenor, Lucas Auto Sales, Inc. There were 16 bids made by 5 persons during the auction. Nicholas Gasa-way, attorney for plaintiffs, made three bids on behalf of plaintiff, Earl Koester. His final bid was $4,500.00. Defendant, Roscoe Koester made one bid of $7,500.00.

Immediately after the sale Mr. Lucas made a payment of $1,500.00, on behalf of Lucas Auto Sales, Inc. The balance of the sale price was paid on March 3, 1975.

On March 4, 1975, defendants filed a motion to set aside the sale and to order a new sale stating that defendants would make a first bid of $22,000.00. On March 11, Lucas Auto Sales, Inc., filed a motion to intervene and a motion to confirm the sale.

On March 18, plaintiffs filed a motion consenting to the setting aside of the sale upon payment by defendants of $22,000.00 into the court as a first bid at a new partition sale. Defendants thereafter deposited the equivalent of $22,000.00 as a tendered first bid. On the same date defendants filed a motion to deny intervention and to strike intervenor’s motion to confirm. The motion to intervene was sustained on March 31, 1975. The court upon hearing confirmed the sale to Lucas Auto Sales, Inc., and entered final judgment in this cause. Other facts pertinent to the issues raised will be set out hereafter.

The defendants’ purpose in this appeal is to have the confirmation of the sale set aside and to have the cause remanded for another judicial sale. Our consideration of defendants’ contentions on this appeal must be guided by the general principle that approval of judicial sales rests largely in the discretion of the trial court and its action in confirming or in setting aside a sale will not be interfered with unless there is a manifest abuse of discretion. DiLeo v. Hunter, 505 S.W.2d 112 (Mo.App.1974).

Defendants first contend that the court erred in confirming the sale because the terms of sale varied from the order of sale. They argue that the sale was chilled because contrary to the order the notice provided for 8% interest to be paid on the unpaid balance of the sale price until fully paid within the 30 day period provided for payment in full.

The general rule would seem to be that a notice and sale must comply with the provisions of the decree. However, to render a sale void or voidable the irregularity must be such as to affect the sale to the prejudice of the parties. 50 C.J.S. Judicial Sales § 10e,’p. 591, 50 C.J.S. Judicial Sales § 54b, p. 674.

In support of this contention defendants cite us to Boxwell v. Boxwell, 444 S.W.2d 510 (Mo.App.1969). This case stands for the general proposition that, any action on the part of any persons which prevents a free, fair and open sale or chills the sale is contrary to public policy and should be set aside.

In Boxwell, the plaintiff, as the only participant, bid on the property for $5,000.00. Prior to the sale a witness was advised by plaintiff that he was prepared to bid up to at least $12,500.00 for the property which the witness felt to be worth ten, eleven or twelve thousand dollars. As a result the witness did not attend the sale. It is apparent that the actions of the plaintiff in that case chilled the sale permitting him to purchase it at a lower price to the prejudice of the defendant.

It is generally stated that a purchaser at a judicial sale is liable for the payment of interest on the balance of the purchase price from the date of sale until paid. 50 C.J.S. Judicial Sales § 30e, p. 626, 47 Am.Jur.2d Judicial Sales § 311 p. 544. A potential bidder could contemplate the payment of some interest from the date of sale until the price is fully paid in accordance with the terms of sale. 8% for a maximum period of 30 days is minimal. There is no evidence in this case from which it can be said that potential bidders refrained from attending the sale and bidding because the notice provided for interest of 8% on the unpaid balance. There is no indication from those bidding that they dropped out of the bidding because of the nominal amount of interest provided in the notice. At least nine persons attended the sale. Five persons, including the defendants and one of the plaintiffs, actively participated in the bidding. Sixteen bids were made before the property was “knocked down” to inter-venor. The trial court did not abuse its discretion when it necessarily concluded that the insubstantial variance in the notice of sale did not chill the sale.

Defendants also contend that the sale was chilled because intervenor and Mr. Havin were bidding for the same party. A person may bid by agent. In this case there is no evidence that any persons were deterred from bidding by reason of the fact that Mr. Lucas and Mr. Havin were bidding for Lucas Auto Sales. The cases cited by defendants are not applicable to the facts of this case.

Defendants further contend that the court erred in confirming the sale because defendants were unable to look after their interests because of (1) their ill health; (2) their daughter who was to assist defendant, Roscoe Koester at the sale arrived late because the measurement of time had changed from central standard to daylight savings time; and because her automobile malfunctioned, causing her to be late; and (3)because of the inadequacy of the sale price and the cumulation of circumstances surrounding the sale.

We review the facts pertinent to these considerations. Defendant Roscoe Koester at the time of sale was seventy years of age and in poor health. His wife is confined to the home. They manage to take care of their needs. Mr. Koester’s illness is physical, not mental. Mrs. Virginia Gilliam, defendants’ daughter, testified that she discussed the sale with her father some time before the date upon which the property was sold and it was agreed that she would bid on behalf of her father and that they would go as high as $22,000.00. On the day of the sale, Wednesday, February 26, 1975, she arrived at the scene of the sale approximately five minutes after the sale had closed. The sheriff had left before she arrived. She demanded of the sheriff’s deputy-clerk that the property be re-sold. This was refused.

Mrs. Gilliam explained that she was late because on the Sunday before the sale, which was on Wednesday, daylight savings time had gone into effect and she had not changed her clocks. She also testified that her car had malfunctioned as she was driving to the sale.

At the hearing a witness on behalf of defendants testified that the market value of the property was $30,000.00. Mrs. Gilliam placed the value at $50,000.00. A witness on behalf of intervenor testified that the market value of the property at the time of sale was $15,000.00.

Mr. Koester was ill at the time the motions with respect to confirmation of the sale were heard and he did not appear.

In urging us to overturn the judgment of the trial court in confirming the sale defendants direct us to the broad general language found in Patton v. Hanna, 46 Mo. 314, at page 315 (1870):

“In these proceedings the utmost fairness and good faith should be observed, and if, from accident, mistake, or any cause, the parties interested have been prevented from looking after their interest, and the property has been sacrificed, a sound exercise of judicial discretion would demand that the sale be set aside.”

In the case now under consideration the court was not requested to and did not make formal findings of fact. It did, however, state of record that it “did not find that the consideration paid was inadequate under the law” and denied the motion to set aside the sale.

It was the order of the court that “. . . the premises be sold to the highest bidder.” The sale in this case was a forced sale. Market value may be considered in determining the adequacy of the sale price but it is not the measure of adequacy. The test of adequacy in a judicial sale is the price received in comparison with what the property would bring in a fair sheriff’s sale. City of St. Louis v. Peck, 319 S.W.2d 678, 684 (Mo.App.1959).

The parties plaintiff were present at the sale through Earl C. Koester II and their attorney. Defendants were represented by Roscoe Koester. Roscoe Koester had a history of physical illness but he appeared normal and alert on the day of the sale. The parties were not only present to protect their interest but actively participated in the bidding. The sale was held at the time provided in the notice of sale. The trial court was warranted in finding that the sale was open, fair and public; that neither the sheriff nor the purchaser did anything to prevent the property from selling at a higher price and that the property had not “been sacrificed.” We cannot say that the finding of the court that the sale price was adequate was a manifest abuse of discretion.

The facts in this case are materially different from those in Patton v. Hanna, supra, which is relied on by defendants. In reversing confirmation of a sale in Patton, the court noted that it was “doubtful [that the notice] was published according to law” and it was “clearly shown that none of the parties except the purchaser knew of the sale.” The purchaser was the only bidder.

If the sale cannot be said to be a “sacrifice” but adequate as found by the trial court the other factors such as the delay occasioned in Mrs. Gilliam’s arrival at the sale will not be considered nor does the fact that a higher offer is made after the sale prove that the price was inadequate. Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8 (1944). As was said in DiLeo v. Hunter, 505 S.W.2d 112 (Mo.App.1974), “a sale at some point must be final.”

Defendants contend that the court should have set aside the sale and ordered a new judicial sale because all plaintiffs and all defendants joined in defendants’ motion to set aside the sale.

Defendants rely primarily upon Hiatt v. Hiatt, 188 S.W.2d 863 (Mo.App.1945) and Ivory v. Delore, 26 Mo. 505 (1858). Neither case is authority for defendants’ contention. The cases stand only for the proposition that a partition action may be dismissed by plaintiff or at the request of plaintiff and defendant after the court has entered its interlocutory decree in partition. There had been no sale in either case.

The primary purpose of our courts in the field of civil law is the determination of disputes which the parties have been unable to resolve among themselves. The courts are ready to stand aside and permit the parties to resolve those issues at any time during the pendency of the litigation so long as they are not under disability and are suing or defending for themselves alone. Hiatt v. Hiatt, supra. They may not by agreement among themselves affect the rights of other persons.

In an action for partition the purchaser at the sale incurs obligations which subject them to the jurisdiction of the court he also acquires correlative rights. See 59 Am.Jur.2d Partition § 125, p. 870. The purchaser is obligated to pay the purchase price, and it has been held that the original parties to the partition action do not have the right to have proceedings that have been brought against the purchaser for that purpose dismissed. McNamee v. Cole, 134 Mo.App. 266, 114 S.W. 46 (1908). The purchaser is entitled to the rents and profits of the land from the date of sale. Winfrey v. Work, 75 Mo. 55 (1881). It follows that he has such an interest in the property as to be heard on a motion to set aside or a motion to confirm the sheriff’s sale. Wauchope v. McCormick, 158 Mo. 660, 59 S.W. 970 (1900), Thomas v. Elliott, 215 Mo. 598, 114 S.W. 987 (1908).

In this case the purchaser sought and was granted the right to intervene under Rule 52.12(a)(2). Having intervened he became as much a party to the action as the original parties. 59 Am.Jur.2d Parties § 177 p. 615. See concurring opinion of Hyde, P. J., in Leggett v. General Indemnity Exchange, 363 Mo. 273, 250 S.W.2d 710, 718 (1952). Defendants with whom plaintiffs joined, sought to set aside the sale. They did not seek to dismiss the action. As noted above when the sheriff “knocked down” the property to intervenor, interve-nor became obligated to pay the full purchase price, he also acquired an interest in the property which he had a right to protect. The case is thus distinguishable from Hiatt v. Hiatt, supra, where the action was dismissed before the rights of the purchaser had intervened. The original parties to an action in partition may not by agreement among themselves defeat the rights of the purchaser at a judicial sale. To hold otherwise would have a chilling effect on all partition sales.

We conclude that the trial court did not abuse its discretion in confirming the sale in this case.

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . This case was overruled by Thomas v. Elliott, 215 Mo. 598, 114 S.W. 987 (1908), on another point.


author: DOWD, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Richard BROWN, Defendant-Appellant.
    No. 36575.
    Missouri Court of Appeals, St. Louis District, Division One.
    Oct. 26, 1976.

      Daniel B. Hayes, Hayes & Heisler, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Christopher R. Brewster, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Judge.

Appellant, Richard Brown, was convicted of robbery in the first degree, § 560.120 RSMo 1969, and was sentenced by the court to 20 years in the custody of the Department of Corrections under the Second Offender Act, § 556.280 RSMo 1969. Appellant raises three points on this appeal: (1) that he was prejudiced by the improper endorsement of an additional state witness on the day of trial; (2) that the Second Offender Act was improperly applied to him; and (3) that the prosecutor coerced an important defense witness to refuse to testify.

At trial, the state proved that appellant and another man entered a Clark Service Station on January 29, 1974 where they brandished guns and forced the owner of the service station and a service station attendant to lie on the floor. The men took $600.00 in business receipts and a metal coin changer. As the men were leaving the service station, a police officer entered, and the station owner shouted that he had been robbed. Police officers chased the getaway car and found appellant and the car’s owner, Mr. Burke, hiding together near the place where the getaway car had been abandoned. A metal coin changer was also found where the men had been hiding. Appellant was identified as a participant in the robbery. Mr. Burke was not identified as the second man who had robbed the service station and was released.

Appellant testified that an unknown man had forced appellant and Burke to drive him away from the scene of the robbery at gunpoint.

The appellant contends that the trial court “erred in allowing the prosecuting attorney to threaten and coerce a vital defense witness to the extent that he ultimately refused to testify.” Mr. Burke, the owner of the getaway car, appeared at appellant’s trial and was ready to testify in appellant’s defense. Presumably, Burke would have corroborated appellant’s version of the facts. Burke subsequently refused to testify following extensive questioning. The trial record pertinent to appellant’s contention is as follows:

THE COURT: [Questioning witness Burke] . . . You don’t have to testify against yourself. Are you aware of that?
A: I was aware of what he [defense counsel] told you.
THE COURT: If you testify here anything could be used against you if you were later charged with a crime arising out of this particular incident?
A: Yes.
THE COURT: You nevertheless want to testify. Is that correct?
A: Yes, sir.
THE COURT: Have you sought counsel, the counsel of a private lawyer?
A: No. I haven’t.
THE COURT: Do you have any desire to do that?
A: No. I didn’t.
THE COURT: You are voluntarily testifying in this matter. Is that right?
A: Right.
THE COURT: Anything [the prosecutor] you still want?
PROSECUTOR: ... You are familiar with the Miranda Rights about remaining silent and the right to have a lawyer present. Do you understand those rights?
A: Yes.
THE COURT: You understand?
A: Yes.
PROSECUTOR: You understand when you were taken into custody with Mr. Brown it was a close decision whether i warrant would be issued against you at that time?
A: No.
PROSECUTOR: I’m informing you there was a distinct possibility one would be issued against you at the time [but the] warrant officer decided differently. May charge you and Brown together in this incident. The State is still at liberty to charge you at any time with robbery and the third individual who escaped that day. I want you to understand anything you say today is going to be taken down by this man and a transcript prepared. If the State decides to charge you on what the State already knows or perhaps what you say in here this afternoon your testimony would be admissible .
Do you understand that?
A: Yes.
PROSECUTOR: Knowing that you still feel that you want to testify?
A: Yes.
PROSECUTOR: You don’t want an attorney?
A: No.
PROSECUTOR: You are here of your own free will and want to testify?
A: Yes.
PROSECUTOR: Is that right?
A: Yes.
THE COURT: I don’t [t]hink anything further has to be said.
PROSECUTOR: I might add, during the course of this trial certain things have come to the State’s attention that the State did not know before, evidence indicating I’m not sure whether the State is going to issue a warrant against you. Whether you’re guilty or not the State is now aware of certain things incriminating against you as far as your involvement. The state is considering a warrant. With that in mind, do you still want to testify ? (Emphasis added).

At this point in the questioning, Mr. Burke hesitated and then refused to testify.

We believe that the italicized portion of Burke’s examination threatened prosecution of Burke should he give testimony in defense of appellant. The witness had already been warned that he could be criminally charged in connection with the robbery charged against appellant and had maintained that he still wanted to testify. The last quoted portion of Burke’s examination does more than warn the witness that he might be prosecuted. It implies that the state has enough evidence to proceed against Burke but will do so only if Burke testifies. The inference that the State would prosecute Burke only if he testified clearly coerced the witness not testify.

A criminal defendant’s right to present witnesses in his defense is a fundamental element of due process. Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (Per Curiam 1972). The Webb v. Texas decision holds that the use of coercive measures which effectively drive a key defense witness from the stand deprives a defendant of due process of law under the Fourteenth Amendment of the U. S. Constitution. The coercive measure condemned in Webb was the “lengthy and intimidating warning” given by the trial judge, threatening the potential defense witness with a grand jury investigation of perjury should the witness lie. Webb v. Texas, supra at 97.

The intimidating warning given by the prosecutor in the case before us drove Mr. Burke from the stand and prevented the defendant from presenting a witness crucial to his defense. As in Webb, this practice must be condemned as depriving a criminal defendant of due process. We conclude that appellant’s conviction must, therefore, be reversed and appellant retried in this matter.

We have considered the State’s argument that the prosecutor’s examination of Burke was necessary in order to protect Mr. Burke’s constitutional rights. The trial court had adequately advised Mr. Burke of his right to consult an attorney and advised the witness that his testimony could be used against him. Further questioning by the prosecutor was not only unnecessary to protect Burke’s constitutional rights but was also clearly designed to dissuade the witness from testifying.

Appellant also argues that his case should be remanded for retrial on the ground that the trial court abused its discretion by allowing the state to endorse a fingerprint expert, Mr. Forbes, on the day of trial. Since we are remanding this case for retrial upon other grounds, it is not necessary to decide this contention.

Appellant’s final contention is that the trial court erred in assessing appellant’s punishment because the state had not adequately proven applicability of the Second Offender Act, § 556.280 RSMo 1969. Since the trial court must again decide this issue on retrial, we have considered the merits of appellant’s argument. The state had produced the record of conviction and confinement of Richard Brown, Jr. Richard Brown, Jr. had been convicted as an accomplice after the fact to a burglary in 1973 and was sentenced to one year in the city workhouse. In the case now before us, appellant’s name was listed in the information as Richard Brown. Appellant argues that “Richard Brown” and “Richard Brown, Jr.” are not identical names and that, therefore, the state is required to produce additional evidence matching appellant with the person previously convicted.

In testimony given by appellant at his trial, appellant admitted that in 1973, he had been convicted as an accessory after the fact to a burglary and had spent 9 months or a year in the city workhouse. This admission is sufficient to support a finding that Section 556.280 RSMo 1969 is applicable. See State v. Bolden, 525 S.W.2d 625, 634 (Mo.App.1975).

The trial court erred in permitting the prosecutor to coerce a defense witness, thereby causing that witness to refuse to testify. The conviction is reversed and the case remanded for retrial.

WEIER, P. J., and CLEMENS, J., concur.

      . We note that, at sentencing, appellant identified himself as Richard Brown, Jr.


author: FONES, Justice

text:
    Perry A. CHAPDELAINE, Appellant, v. TENNESSEE STATE BOARD OF EXAMINERS FOR LAND SURVEYORS et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 23, 1976.
    Perry A. Chapdelaine, pro se.
    R. A. Ashley, Jr., Atty. Gen., Nashville, C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, for appellees.
   FONES, Justice

(dissenting).

I respectfully dissent from 541 S.W.2d 786.

The right to pursue one’s occupation is an inherent property right protected by the due process clause of our State and Federal Constitutions. Livesay v. Tennessee Board of Examiners in Watchmaking, 204 Tenn. 500, 322 S.W.2d 209 (1959), Harbison v. Knoxville Iron Company, 103 Tenn. 421, 53 S.W. 955 (1899).

Stating the issue to be decided in Livesay, Mr. Justice Tomlinson observed that interference with an individual’s inherent property right to pursue his occupation is not constitutionally permissible except insofar as such interference may be justified by the police power of the state. “Beyond that limitation it is the taking, in effect, of property belonging to another.” 322 S.W.2d at 211.

In Campbell v. McIntyre, 165 Tenn. 47, 52 S.W.2d 162 (1932), Mr. Justice Swiggart cites and quotes from a number of United States Supreme Court cases firmly establishing the doctrine that under the Fourteenth Amendment, it is beyond the power of a State to prohibit the pursuit of lawful occupations or impose unreasonable and unnecessary restrictions upon them, under the guise of protecting the public interest; and that a declaration by the Legislature of what constitutes the public interest is not final or conclusive but is subject to supervision by the courts.

The test that should be applied in determining whether the restriction on land surveying is within the police power is the same as that stated in Campbell with respect to the occupation of accounting.

“We are therefore required to determine and rule in the cause before us whether the restriction of the occupation of accounting to persons examined and approved by a board or commission has a real tendency to promote or protect the public interest and safety, whether it bears a reasonable relation to such end, and whether the interests of the public generally, as distinguished from the interests of a particular class, reasonably require the protection of this restrictive legislation. Conceding that all questions of policy, involving the wisdom or folly of the legislation, are beyond and outside the scope of judicial review, it cannot be denied that a sound judicial discretion is essential to the determination of the questions of reasonableness and relation of the restriction to the public interest presented by complainant’s invocation of the constitutional provisions. Vested with this discretion, the courts may not shirk its exercise.” 165 Tenn. at 53, 52 S.W.2d at 164.

The following observations by the Supreme Court of North Carolina in State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940), appropriately emphasize the importance of the constitutional rights at stake in this case:

“It follows that there is a well recognized gap between the regulation of a business or occupation and restrictions preventing persons from engaging in them to which courts must pay careful attention. While many of the rights of man, as declared in the constitution, contemplate adjustment to social necessities, some of them are not so yielding. Among them the right to earn a living must be regarded as inalienable. Conceding this, a law which destroys the opportunity of a man or woman to earn a living in one of the ordinary harmless occupations of life by the erection of educational and moral standards of fitness is legal grotesquery.” 6 S.E.2d at 863. “Resort to the police power to exclude persons from an ordinary calling, finding justification only by the existence of a vague public interest, often amounting to no more than a doubtful social convenience, is collectivistic in principle, destructive to the historic values of these guaranties, and contrary to the genius of the people who did all that was humanly possible to secure them in a written constitution.” 6 S.E.2d at 865.

I have found only one reported case that squarely considers the issue of whether the occupation of land surveying affects the public health, safety or welfare to the extent that its pursuit or practice in the private sector may be constitutionally restricted to those persons approved by a legislatively established Board. That case is Doe v. Jones, 327 Ill. 387, 158 N.E. 703 (1927). Our present licensing act is similar to the Illinois Act involved in Jones. The definition of a land surveyor in the Illinois Act is, “ . . .a person who for a consideration establishes one or more corners or boundaries of any tract or lot of land and executes and issues plats thereof signed by himself as a surveyor.” Ill.Rev.Stat. (Smith-Hurd 1925), Chapter 133, Section 18. Both acts exempt employees of the United States, the state and its political subdivisions and prohibit the practice of land surveying by any person who does not hold a certificate of registration issued by the State Board. Thus, both Acts are aimed solely at regulating the practice of land surveying in the private sector. I find the following portions of the opinion of the Supreme Court of Illinois in Doe v. Jones, supra, to be significant and persuasive on the constitutional issue in this case:

“It is urged by appellant t(iat this act violates the constitutional provision against unreasonable discrimination and that it is void as not within the police power of the state. This act is in many respects similar, in effect to the act concerning the licensing of public accountants, considered by this court in Frazer v. Shelton, 320 Ill. 253, 150 N.E. 696, 43 A.L.R. 1086, and there held invalid as not within the police power. That question arises here concerning the regulation of land surveyors. The police power of the state is exercised for the furtherance of the public health, comfort, safety, or welfare, and, unless an act restricting the ordinary occupations, of life can be shown to fall within the police power, such act is void. It is not to be doubted that such occupations as the practice of medicine and surgery and other treatment of human ills, and the profession of law by reason of its influence on the protection and safety of the rights of property and liberty, do affect the public welfare, as does the manner of construction of buildings affect the public safety. These occupations, therefore, may properly under the police power, be regulated. What then, is there in the occupation of land surveying that brings its regulation within the safeguards of the police power? Under this statute county surveyors and employees of a city, county, the state, and the United States are exempt from the act. In other words, those having to do with surveying for the public are not required to be licensed. There is seen in the act, therefore, no element of public welfare as such pertains to the protection of the public business. It appears that the surveyors coming under the act are those whose practice is largely confined to private contract. . . . As a result of the operation of the statute in question, private individuals desiring a survey must select their surveyor from those licensed by the board, and, in the absence of an element of public safety or welfare, such is an unwarranted limitation on the right of contract and a void interference with private business. As was said by this court in Frazer v. Shelton, supra:
‘In order to say that private business must, in the interest of public welfare, employ one certified by the state, it must appear that the effect of an audit of that business is a matter of public welfare and not of private concern.’
If the effect of the work of a land surveyor is but a matter of private concern, the law regulating and licensing it as a business is an unwarranted regulation of private business and of the right to contract. .
Counsel for appellees urge that, since architecture and structural engineering have been held to be occupations that may be regulated and licensed, land surveying should likewise be so held. Architecture and structural engineering directly affect the public safety, in that the construction of houses in cities is of substantial influence in affecting the danger from fire and other causes. We are unable to see wherein the determination of a corner as established by the government is a matter which comes within the police power of the state to regulate. For the reasons given in the case of Frazer v. Shelton, supra, and cases there cited, we are constrained to hold that the act is invalid as not within the police power of the state.” 158 N.E. at 705, 706.

In Ford Motor Company v. Pace, 206 Tenn. 559, 335 S.W.2d 360 (1960) the Supreme Court of Tennessee had under consideration the constitutionality of a 1955 act licensing and regulating those engaged in the business of manufacturing, distributing or selling motor vehicles. Mr. Justice Burnett, writing for the Court drew a distinction between a licensing act that restricts individuals from the pursuit of an occupation, and a regulatory act involving an entire industry such as the automobile industry. In the course of making that distinction, the Court said:

“The Act in question does not involve watch repairers or makers, housepainters, paper hangers, land surveyors, morticians, dancing schools, horse shoers, dry cleaners, layers of drain tile and things of that kind, which have been correctly held beyond the police power of the Legislature for the very apt and fine reasons as set forth in the Livesay ease, supra.” 335 S.W.2d at 363.

It is true that the question of whether land surveying is subject to the police power of the State was not an issue in that case, and the statement was dictum and not controlling precedent. Nevertheless, it is persuasive that a prior court of entirely different composition than the present Supreme Court, in listing useful, common, and innocuous occupations that readily come to mind as not involving the public welfare, included land surveying.

The State’s brief lists forty-two (42) of our sister states as having acts regulating land surveying. I have read many of those acts and find that a number of our sister states include regulation of land surveying within an act regulating the practice of all the engineering professions. I also observe that Alabama and a number of other states make no exception for public employees engaged in engineering or land surveying, and require persons engaged in land surveying for public or governmental agencies to be licensed.

The practice of land surveying was pursued in the State of Tennessee for the first one hundred and seventy-one (171) years of our history without regulation. No evidence was offered that land surveying has become more complicated than in former times, or that our state is rife with incompetent practitioners, or that other circumstances now exist that justify prohibiting the pursuit of this occupation, in the private sector, by any person not certified by the board.

In Davis v. Allen, 43 Tenn.App. 278, 307 S.W.2d 800 (1957) the 1955 Act regulating public accountants and certified public accountants was under attack. The same constitutional infirmities relied upon here were asserted. In distinguishing the contrary holding in Campbell v. McIntyre, supra, Judge Felts called attention to the distinction made in Campbell between a statutory prohibition that requires licensing for all who hold themselves out to the general public as an accountant and a blanket requirement of licensing for all who perform bookkeeping for more than one employer. The 1925 Act in effect when Campbell was decided, defined the practice of public accounting in terms of all persons who performed accounting work for more than one employer whereas the 1955 Act applied only to those who held themselves out to the public as skilled in the knowledge, science and practice of accounting. The Court in Davis v. Allen, supra, concluded that the later act did not touch the right of private contract where there was no holding out to the public and therefore avoided the constitutional infirmity of an unreasonable and arbitrary restriction on a common occupation and the right to contract privately in pursuit thereof, condemned in Campbell.

The Davis court implicitly recognized the principle that the power to regulate a business or occupation does not necessarily include the power to exclude persons from engaging in it. See State v. Harris, supra, and cases cited at 6 S.E.2d 863. That court also observed that, “ . . . public accountancy now embraces many intricate and technical matters dealing with the many kinds of tax laws, unfair trade practices, rate regulations, Blue Sky laws, Stock Exchange regulations, reports required by various governmental agencies, financial statements, etc.” 307 S.W.2d at 802. As indicated above, I am of the opinion that land surveying requires essentially the same knowledge and skills today that prevailed at the time George Washington pursued it as an occupation. If modern conditions have wrought changes in the occupation they are not so commonly known and universally accepted that we can judicially notice them.

The majority opinion of the Court says that we judicially note that a substantial amount of litigation has been engendered in the past because of inaccurate and improper surveys and that we continue to receive regular disputes over boundaries, plats and surveys. Pretermitting any discussion of the propriety of judicially noting the number of a particular kind of case I simply disagree that the number of boundary disputes that were originally generated or at any point involve inaccurate surveys are substantial in number. Substantial is a relative term and in my opinion lawsuits of the subject category in the State of Tennessee are insignificant in number. But, I submit that no legal authority exists for the Legislative exercise of the police power here involved because of the number of lawsuits or the amount of money involved therein. Litigation arises out of the pursuit of all of the common occupations.

The majority opinion points to the failure of plaintiff to adduce proof in support of his assertion that land surveying is such a common pursuit as to be beyond the police power of the Legislature to regulate. Given the history of land surveying as a common occupation, the fact that it has been pursued without regulation in Tennessee for one hundred seventy-one (171) years, that the Supreme Court of Illinois and the Supreme Court of Tennessee had classified the calling a common occupation, it is my view that the burden was upon the Board to go forward with the evidence to justify Legislative exercise of the police power in prohibiting anyone from following this pri-ma facie common occupation. I think it is fair to say that both parties were remiss in not adducing proof in support of their respective contentions. The constitutional issue presented in this case is not a pure question of law but one of mixed law and fact and the controlling facts are not of a character that this Court may take judicial notice thereof.

I do not question the power of the Legislature to enact T.C.A. § 64-2418 or to regulate the practice of land surveying to the extent that only those who meet the qualifications of the Act and are certified by the Board may hold themselves out to the public as certified land surveyors. But, in my opinion the exclusion of persons not so certified from engaging in land surveying performed pursuant to private contract involving boundaries of privately owned land, as distinguished from publicly owned land, exceeds the constitutional exercise of its police power. It seems to me that the only aspect of the statutes that is or may be of benefit to the public is the requirement that any recorded map, plat or survey be prepared by a registered land surveyor or a registered engineer. Having accomplished that purpose it was unnecessary to prohibit the pursuit of the occupation in the private sector.

I am not persuaded that sufficient danger to the public health, safety or welfare inheres in the pursuit of land surveying to justify prohibiting persons not board certified from engaging in that occupation, in the private sector. Such regulatory power must be cautiously and sparingly exercised because of the inalienable right of a citizen to earn a living in one of the ordinary occupations of life. The fact that its incompetent performance under contract with private parties may result in controversies or litigation over property lines, can hardly be said to significantly involve the public welfare. The practice of land surveying in the act under consideration reaches all who perform or engage therein by private contract as well as those, who hold themselves out to the general public as certified and registered with the State Board. That prohibition, in my opinion \is an unwarranted limitation on the right of private contract and an unconstitutional! invasion of the right of an individual to earn a living in an ordinary calling. \


author: BROCK, Justice.

text:
    Kelvin FUQUA, Appellant, v. Claude A. ARMOUR, Commissioner of Safety, Appellee.
    Supreme Court of Tennessee.
    Oct. 25, 1976.

      Michael R. Jones, Springfield, for appellant.
    Michael E. Terry, Asst. Atty. Gen., Nashville, for appellee; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

I

The appellant appeals from the order of the circuit court dismissing his petition for certiorari and adjudging that his 1973 model Chevrolet Corvette automobile be forfeited to the State of Tennessee for a violation of the Tennessee Drug Control Act of 1971, T.C.A. § 52-1443.

That the automobile was used to transport contraband drugs and was thus forfei-table under the statute above-cited is not disputed. On June 29, 1974, appellant Fu-qua made a sale of marijuana to undercover agents of the Sumner County Sheriff’s Department and on July 26,1974, he also made a sale of LSD, a contraband drug, to undercover agents of the Sumner County Sheriff’s Department. On both occasions, the contraband drugs were carried in the subject automobile from which the sales were made. Appellant Fuqua was not arrested nor was his vehicle seized on the occasion of either of these sales, but on August 16, 21 days after the last such sale on July 26, 1974, appellant was arrested in his home pursuant to a presentment by the grand jury charging him with the drug violations. On the same day as his arrest, the automobile was seized while it was parked in the carport at appellant’s home, without legal process authorizing its seizure.

Appellant contends that the seizure of his automobile under these circumstances violated the search and seizure provisions of the Constitution of Tennessee and the Constitution of the United States. He further asserts that the possession of his vehicle by the State, as the result of such unconstitutional seizure, deprives the State of the right it would otherwise have to have the said vehicle forfeited under the Drug Control Act provisions.

The State asserts that the seizure was lawful and constitutional, relying upon T.C.A. § 52-1443(b)(4) which provides:

“(b) Property subject to forfeiture under §§ 52-1408 — 52-1448 may be seized by the commissioner of safety or his authorized representative, agent, or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, or constable upon process issued by any circuit or criminal court having jurisdiction over the property. Seizure without process may be made if:
(4) the commissioner of safety or his authorized representative, agent, or employee, or a sheriff, deputy sheriff, municipal law enforcement officer, or constable has probable cause to believe that the property was used or is intended to be used in violation of §§ 52-1408-52-1448.”

Article I, See. VII, Constitution of Tennessee, provides:

“That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.”

The Fourth Amendment to the U.S. Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The rights secured by these constitutional provisions are to be regarded as of the very essence of constitutional liberty; they express the conviction that the right to search and seize should not be left to the discretion of the police but should be subject to the requirement of previous judicial sanction wherever possible. Trupiano v. U. S., 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Johnson v. U. S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Hughes v. State, 176 Tenn. 330,141 S.W.2d 477 (1940); Anthony v. Carter et al, Tenn., 541 S.W.2d 157 (1976). They protect the citizen from unreasonable seizures as well as from unreasonable searches. U. S. v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); U. S. v. Molkenbur, 430 F.2d 563 (8th Cir. 1970), cert. denied 400 U.S. 952, 91 S.Ct. 244, 27 L.Ed.2d 258; Anthony v. Carter et al., supra. This protection extends to the citizen’s automobile. Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989 (1924); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). They protect property sought to be forfeited to the State. U. S. v. McCormick, 502 F.2d 281 (9th Cir. 1974).

A search or a seizure without a warrant is presumptively unreasonable and invalid. U. S. v. Jeffers, supra; McDonald v. U. S., 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The right to search or seize without a warrant is the exception, and it exists only under exceptional circumstances. McDonald v. U. S., supra; Trupiano v. U. S., supra. In McDonald it was held that when officers are not responding to an emergency, there must be compelling reasons to justify their search or seizure without a warrant. It has been said that the test is the apparent need for summary seizure and that when the securing of a warrant is reasonably practicable, it must be used. Trupiano v. U. S., supra.

When probable cause exists, an automobile may be searched or seized without a warrant when it is halted while moving along the public street or highway, because of the impracticality of obtaining a warrant before the vehicle may be moved out of the jurisdiction. Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). But this rule is based solely upon the exigent circumstances existing, i. e., the vehicle is moving on the public highway, which makes it impracticable to obtain a search warrant and does not apply to authorize a search or seizure of a vehicle without a warrant after the vehicle has completed its journey and is at rest on private premises. U. S. v. Young, 489 F.2d 914 (6th Cir. 1974); Hart v. U. S., 162 F.2d 74 (10th Cir. 1947); Boyd v. State, 206 Miss. 573, 40 So.2d 303 (1949).

The State relies heavily upon Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), in which an automobile was halted upon the public highway and its occupants arrested there. The vehicle was removed from the highway to the police station and was searched without a warrant at that place. In upholding this search, the Supreme Court of the United States said:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issued to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 90 S.Ct. at 1981.

In our opinion, the State attempts to read more into the Chambers decision than is there. It does not dispense with the necessity to obtain a warrant merely because the officer has probable cause to search. Chambers does not represent a departure from the principles hereinabove enumerated. In the later case, Coolidge v. New Hampshire, supra, the U.S. Supreme Court limited the Chambers holding to its peculiar facts and reaffirmed the principles herein-above set out to the effect that even where probable cause exists a search or seizure of an automobile cannot validly occur, absent exigent or extraordinary circumstances amounting to “compelling reasons” for a warrantless search. In Coolidge the Court said:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”

The Court pointed out that the justification for the search without a warrant in the Carroll and Chambers cases, supra, was that the automobile is “movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained ... the opportunity to search is fleeting . . . whereas, in the Coolidge case the pertinent factors were stated to be:

“There is no suggestion that, on the night in question, the car was being used for an illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly ‘fleeting.’ The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous.”

In U. S. v. Young, supra, the United States Court of Appeals for the Sixth Circuit held that a search of a truck without a warrant was unreasonable and invalid despite the existence of probable cause to search. The truck had been parked for three or four days on property of individuals who had employed the defendant to cut and haul pulpwood, and, when one individual called to report reasons for suspecting that the truck had been stolen, the officers had no grounds to believe that the vehicle might be moved within the few minutes which would be required to make application for a search warrant and to travel to the place where the truck was located.

The McCormick case, supra, is almost identical to the case at bar. There the Court said:

“Although the agents had probable cause to believe that McCormick’s car had been used to transport contraband, the second sine qua non of Carroll, exigent circumstances, is here absent. . . . The car was parked in the driveway of the house when it was seized and there was no indication that it was then being used for any illegal purposes. . . . Moreover, even if he could have gained access to his car, he could not have driven it away, because a police car was blocking the driveway. . . . ‘[N]o amount of probable cause can justify a warrantless search or seizure, absent “exigent circumstances.” ’ Coolidge v. New Hampshire, supra, 403 U.S. at 468, 91 S.Ct. at 2039, and so the seizure here does not fall within the automobile exception to the warrant requirement.” 502 F.2d 287.

In our view, the Coolidge, Young and McCormick decisions are controlling in determining the validity of the seizure without a warrant of the automobile in the instant case. If the automobile had been seized and the defendant Fuqua arrested at the time of either of the sales of narcotics disclosed in the record, such seizure and arrest in our view probably would have been valid without warrants. But, there were no exigent circumstances here. We cannot countenance a seizure without a warrant of an automobile from the owner’s premises when the officers had a period of 21 days following its alleged use in violation of the Drug Control Act within which to obtain a warrant. Just as a presentment was obtained for Fuqua’s arrest, so could a warrant authorizing the seizure of his automobile have been obtained in the period of 21 days intervening between the commission of the offense and the arrest and seizure. The seizure of Fuqua’s automobile was unreasonable and in violation of the search and seizure provisions of both the State and Federal Constitutions. U. S. v. McCormick, supra; Kaufman v. U. S., 453 F.2d 798 (8th Cir. 1971).

T.C.A. § 52-1443(b)(4) should not be construed as authorizing the seizure of an automobile without a warrant under circumstances such as those disclosed in the facts of this case. The fact that probable cause exists for seizure is not enough; there must also exist “exigent circumstances”; therefore, T.C.A. § 52-1443(b)(4) should be construed as authorizing a seizure without a warrant, upon probable cause, only when “exigent circumstances” exist justifying summary seizure. “No amount of probable cause can justify a warrantless search or seizure, absent ‘exigent circumstances.’ ” Coolidge v. New Hampshire, supra. Thus construed and restricted, T.C.A. § 52-1443(b)(4) may constitutionally be applied.

II

Although the seizure of Fuqua’s automobile by the officers was in violation of his rights under the State and Federal Constitutions, the question remains whether or not this fact precludes the forfeiture of the automobile. We hold that it does not.

A forfeiture proceeding such as this is an action in rem and jurisdiction of the Court depends upon its actual or constructive custody of the property being forfeited, ordinarily acquired by virtue of its previous seizure. And, it has been held many times that the fact that the seizure was unlawful does not affect the jurisdiction of the court to proceed in a forfeiture action or in any way prevent the court from rendering a valid decree of forfeiture, provided grounds for forfeiture are established. Dodge v. U. S., 272 U.S. 530, 47 S.Ct. 191, 71 L.Ed. 392 (1926); U. S. v. One Ford Coupé Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279, 47 A.L.R. 1025 (1926); U. S. v. Eight Boxes Containing Various Articles, 105 F.2d 896 (2d Cir. 1939); U. S. v. One 1946 Plymouth Sedan Automobile, 167 F.2d 3 (7th Cir. 1948); Sanders v. U. S., 201 F.2d 158 (5th Cir. 1953); U. S. v. One 1956 Ford Tudor Sedan, 253 F.2d 725 (4th Cir. 1958); U. S. v. Deane Hill Country Club, Inc., 342 F.2d 794 (6th Cir. 1965) [dictum]; John Bacall Imports, Ltd. v. U. S., 412 F.2d 586 (9th Cir. 1969); U. S. v. $1,058.00 in United States Currency, 323 F.2d 211 (3d Cir. 1963). Accordingly, we hold that the unlawful seizure of the automobile in this case does not prevent its forfeiture for violation of the Drug Control Laws nor affect the jurisdiction of the Court to decree the forfeiture.

There is no merit to the contention of appellant that he was entitled to notice prior to the seizure of his automobile. Cale-ro-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

The decree of the trial court is affirmed. Costs will be paid by appellant.

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