text:
    Mary Dean Romani LEVIN, Appellant, v. Charles FERRER, Administrator of Estate of Grayce S. Farson, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.

      E. Gaines Davis, Jr., Frankfort, John B. Garvey, Jr., Towson, Md., for appellant.
    Charles M. Daniels, Greenup, C. B. Creech, Creech, Hogg & Williams, Ashland, for appellee.
   CATINNA, Commissioner.

Mary Dean Romani Levin appeals from an order of the Greenup Circuit Court denying her motion for relief under CR 60.02 from a final judgment entered in the action of Grayce S. Farson, widow, versus Mary Dean Romani and Albert Romani, her husband, and Howard VanAntwerp, III, and Jane VanAntwerp, his wife. Charles Fer-rer, administrator of the estate of Grayce S. Farson, filed a motion to dismiss the appeal because indispensable parties were not named as appellees.

This is the second appeal to this court in this proceeding. Our opinion in the prior appeal — Ky., 505 S.W.2d 182 (1973) — affirmed the judgment of the Greenup Circuit Court from which Mary Dean now seeks relief under CR 60.02.

A consideration of the motion to dismiss the appeal for failure to join indispensable parties requires a discussion of the background of this case. Grayce was the owner of a rather large tract of land in Greenup County. Mary Dean, the adopted daughter of Grayce, took her mother to the law office of Howard VanAntwerp, III, where arrangements were made by which Grayce deeded the property to VanAntwerp. He then conveyed the property to Grayce and Mary Dean, jointly, with right to survivor-ship. Grayce apparently had second thoughts in regard to the deed and, possibly with a little assistance from some of her relatives, concluded that she had been overreached. On March 30, 1970, she filed an action to cancel the deed. The defendants in the action were identified as Mary Dean Romani and Albert Romani, her husband, and Howard VanAntwerp, III, and Jane Antwerp, his wife. Following a rather lengthy trial, a judgment was entered declaring the deed executed by Grayce to VanAntwerp to be null and void and the deed executed by VanAntwerp to Grayce and Mary Dean null and void.

Mary Dean appealed to this court and on February 19, 1972, while this appeal was pending, Grayce died. This court, by an order entered on May 18, 1972, substituted as parties for Grayce Farson, Charles Fer-rer and Callie Patton, as devisees, and Callie Patton and Amanda Stevens, as co-executors of the will.

After Grayce filed the suit to cancel the deed, she made wills which disposed of the property in litigation. By will dated January 6, 1971, she devised a part of the tract to Callie Patton, the sum of $500 to Mary Dean, and the residue to her grandson, Charles Ferrer. By another will dated September 16, 1971, she left Charles $20,000 and devised the remainder of her property to Mary Dean Romani.

The January 6,1971, will was probated on March 13, 1972, and Mary Dean appealed from the order of probate. The county court refused to probate the will of September 16, 1971.

To further compound this utter confusion Mary Dean filed a motion for relief from the judgment cancelling the deed, asserting that the judgment was void because of perjured testimony and fraud practiced upon the court by Grayce Farson, Callie Patton, and Charles Ferrer. The trial court denied the motion upon the ground that it had not been timely filed, and from such denial Mary Dean prosecutes this appeal. The statement of appeal designated as appellee, Charles Ferrer, administrator of the estate of Grayce S. Farson. The parties named in the prior appeal were not again designated. Consequently, the motion was made to dismiss the appeal because indispensable parties were not named. This court is of the opinion that this motion is well taken.

CR 19.01 provides that “a person who is subject to service of process, either personal or constructive, shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (a) as a practical matter impair or impede his ability to protect that interest or (b) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

This rule has been applied primarily in proceedings originating in the circuit and inferior courts, and this court has never fully considered the question of necessary parties to an appeal or the result of a failure to designate them. CR 19.01 was amended in 1969 and the designation “indispensable party” was eliminated from the rule. However, a practical approach to the determination of what parties should be properly joined and the criterion for such joinder leads us back to a consideration of the question of whether a party is indispensable. Long ago, Shields v. Barrow, 17 How. 129, 58 U.S. 129, 15 L.Ed. 158 (1854), defined an “indispensable party” as:

“Parties who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final termination may be
wholly inconsistent with equity and good conscience * * *

In Caldwell Manufacturing Company v. Unique Balance Company, 18 F.R.D. 258 (D.C.1955), the court said:

“Unless the absence of an indispensable party is subsequently cured by his joinder dismissal must result. Such defect is jurisdictional.”

The question of who may or may not be a necessary party to this appeal, and possibly to the CR 60.02 proceeding in the trial court, requires some added facts. The CR 60.02 proceeding was styled Grayce S. Farson, plaintiff, versus Mary Dean Romani, et al., defendants. Evidence was taken upon this motion with the notice to take depositions designating the parties as being Charles Ferrer, Sandra Ferrer, Amanda Stevens, Estates of Callie Patton, Minnie Belle Patton, Administratrix. At another place in the proceeding, there is a stateirlent reading: “Comes Grayce S. Farson, a widow, deceased, by and through Charles Fer-rer and Amanda Stevens, substitute plaintiffs herein.” At another place in the supplemental record, Charles Ferrer and Amanda Stevens state that they had been substituted as plaintiffs in the place of Grayce S. Farson, deceased. Charles Ferrer also testified that Amanda Stevens and Callie Patton had been appointed executors of the will that had been probated. The probate of this will of January 6, 1971, deserves some further consideration. The will devised a part of the tract of the land described in the litigation to Callie Patton with the residue to Charles Ferrer. The deed which Grayce had caused to be executed to her and her adopted daughter, Mary Dean Romani, had been declared null and void by a judgment entered August 31, 1971, the effect of which was that the title to the real estate had immediately vested in Grayce. Thus, at the time of her death on February 19,1972, she was the owner of the real estate, and when the will was probated on March 13, 1972, title to this property immediately vested in Callie Patton and Charles Ferrer. Stewart v. Morris, 313 Ky. 424, 231 S.W.2d 70 (1950).

Only the parties to an appeal are bound by the appellate court’s disposition of the proceeding. In Phillips v. Keel, 24 KLR 1752, 72 S.W. 272 (1903), pending a hearing on exceptions filed to a report of sale of real property by the master commissioner, one of the parties to the proceeding died. W. J. Keel, Sheriff of Pike County and Public Administrator, qualified as administrator with will annexed of the estate of the deceased party and petitioned that he be made a party to the proceeding in his capacity as administrator and moved that the report of sale be confirmed, which was granted. After confirmation of the sale an appeal was prosecuted to the Court of Appeals setting out numerous grounds for reversal. In discussing the statement of appeal, the court said:

“ * * * But in their statement, filed in conformity with section 739 of the Civil Code, the only person named as an appellee is W. J. Keel, sheriff of Pike county, who has no pecuniary interest in the matter, so far as we are able to discover. The real parties in interest— the purchasers of the land and their transferees — are not made parties, and would not be affected by any judgment this court might direct to be entered in case we should conclude that the judgment appealed from was erroneous.”

The appeal was dismissed.

Section 739 of the Civil Code is now RCA 1.090 which provides that a statement of appeal shall set forth “the name of each appellant and each appellee (only parties named are before the court — ‘et al.,’ and ‘etc.’ are not proper designations of parties).” See also Combs v. Combs, 144 Ky. 389, 138 S.W. 629 (1911).

The subject matter of this litigation involved a determination of the owners of the real property described in the original proceeding filed by Grayce Farson. This property was passed by the will of Grayce to Charles Ferrer and Callie Patton who are proper and necessary parties to the proceeding, as they will have title to the property if the appeal fails.

Section 506 of the Civil Code, Revivor of Actions, provided:

“Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his real representatives or any of them, * * *(Emphasis ours.)

Section 732(18) of the Civil Code provided that the words “real representatives” mean the heir or devisee of real property of a deceased person. While it is true that Section 732 has long since been repealed as being obsolete and Section 506 has been replaced, in effect, by CR 25.01, the definition of real representative and his place in litigation involving real property has not changed.

The only people who will be affected by the outcome of the present litigation are the real representatives of Grayce Farson, who are her devisees, Charles Ferrer and Callie Patton. Charles Ferrer, as administrator, has no interest in or title to the real property involved and a judgment for or against him would be totally ineffective. Land v. Salem Bank, 279 Ky. 449, 130 S.W.2d 818 (1939). Cf. Commonwealth of Kentucky v. L. G. Wasson Coal Mining Corporation, Ky., 358 S.W.2d 347 (1962).

For the reasons indicated, the motion to dismiss the appeal must be and is granted.

The appeal is dismissed.

All concur except LUKOWSKY, J., not sitting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John J. O’HARA and Robert E. Ruberg, Appellants, v. KENTUCKY BAR ASSOCIATION, Appellee.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    John J. O’Hara, Robert E. Ruberg, O’Hara, Ruberg, Cetrulo & Osborne, Cov-ington, for appellants.
    Leslie G. Whitmer, John T. Damron, Kentucky Bar Association, Frankfort, for appel-lee.
   PER CURIAM.

This appeal involves an ethics opinion adopted by the board of governors of the Kentucky Bar Association. The opinion states that a trial commissioner of a juvenile court and a Commonwealth’s attorney may not be members of the same law firm.

The appellants, members of the same firm who have occupied those positions for a number of years, argue that there have never been accusations or insinuations of impropriety during the time of this professional association or of a failure to fulfill the duties required by their respective offices. They point out the unlikelihood or virtual impossibility of effecting any impropriety with regard to their respective offices. The appellees say that no impropriety is suggested with regard to these appellants.

The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided. We are of the opinion that such association carries with it an appearance of impropriety so that it should not be permitted.

The opinion of the board of bar governors of the Kentucky Bar Association is affirmed.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. James A. KING, Jr., a/k/a, J. Anthony King, Respondent.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    Rehearing Denied Feb. 6, 1976.

      Leslie G. Whitmer, Director, Ky. Bar Association, Frankfort, for complainant.
    Ben B. Fowler, William H. Gorin, Stites, McElwain & Fowler, Frankfort, for respondent.
   PER CURIAM.

On October 30, 1974, in the circuit court for the Sixth Judicial Circuit of Florida, J. Anthony King, a member of the Kentucky Bar and the respondent in this disciplinary proceeding, entered a plea of nolo conten-dere to an indictment which charged him with the offense of conspiracy to commit a felony.

King was indicted as a co-conspirator who unlawfully agreed, combined, conspired or confederated with others to commit the felony offense of offering to a public official reward or compensation not authorized by law. The indictment alleged that King conspired with others to pay a member of the town council of Indian Rocks a sum in excess of $2000.00 for voting in the past, present and future, as a public official upon matters involving Indian Rocks Sea Club, Ltd., contrary to Chapter 833.04 Florida Statutes, said acts being against the peace and dignity of the state of Florida.

Following the district court’s acceptance of King’s plea, the court entered a judgment suspending the imposition of sentence, and placed him on probation for a period of five years. The terms of the probation not only required King’s good behavior, but also required a number of specific and detailed duties during the term of probation.

The president of the Kentucky Bar Association filed in this court a copy of the indictment and order withholding adjudication of guilt and placing King on probation. He moved this court to issue a rule against King to show cause why this court should not take appropriate action under the provisions of RCA 3.320.

In a response and in a document styled “Surreply,” King contends that he has not been convicted of a crime. Such a position stretches the bounds of credulity. King was indicted on a felony charge, “. punishable by imprisonment ... for not more than one-fourth of the penalty or term which could have been imposed if the felony conspired to be committed had actually been committed, or by imprisonment in the state prison for one year, whichever may be greater.” Florida Statute, Sec. 833.04. It is this court’s view that an order suspending a sentence in a felony conviction and placing King on probation is the equivalent of a conviction, regardless of the plea. The indictment of King, his plea and subsequent probation for a period of five years, is serious in nature and reflects a degree of dishonesty totally abhorrent to the principles enunciated in the code of ethics of the legal profession.

This court is of the opinion that the proper administration, of justice and the proper regard for the integrity of the profession compel it to conclude that King is unfit to continue as a member of the bar of this Commonwealth.

“A court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Disciplinary procedures have been established for this purpose, not for punishment, but rather as a catharsis for the profession and a prophylactic for the public.” Maryland State Bar Association, Inc. v. Agnew, 271 Md. 543, 318 A.2d 811 (1974).

It is therefore ordered and adjudged that the respondent, James A. King, a/k/a J. Anthony King, be permanently disbarred from the practice of law in the Commonwealth of Kentucky.

All concur.

      . Rule 3.320 provides that when any member of the association has been convicted of a serious misdemeanor or a felony a copy of the judgment shall be filed with the court by the President or vice-president. If the offense is a felony or if it is a misdemeanor which the court finds to involve dishonesty or stealing within the concept of Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), the member shall be suspended ipso facto.


text:
    Donald S. KING, Appellant, v. CITY OF CORBIN, Appellee.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Kenneth M. Boggs, Barbourville, for appellant.
    Samuel S. Cannon, Corbin, for appellee.
   PER CURIAM.

The City of Corbin, Kentucky, attempted to annex a large area lying in Knox County. A remonstrance suit pursuant to KRS 81.-110 was filed by residents and freeholders of the territory to be annexed. That suit is still pending. In the meantime the city adopted an ordinance annexing a smaller area, embraced in the original proposal, consisting of three tracts and a part of Masters Street. The owners of the three tracts consented to the annexation. The city’s authority for annexing the smaller area is KRS 81.275 which provides:

“Whenever any city has enacted an ordinance proposing to annex any territory and the annexation of the territory is being challenged in the manner provided by law, the city may proceed to annex any land contained in the area proposed to be annexed, which is contiguous to the borders of the city, if the owner of such land consents to the annexation.”

Appellant, as a citizen and taxpayer of the city, instituted this action contesting the annexation of the smaller area on the main ground that the territory was not contiguous to the city. Appellee challenged appellant’s standing to maintain the action.

The authorities are not in agreement as to whether a person on the mere basis of his being a citizen and taxpayer is qualified to bring the action. Some of the seeming inconsistencies are due to the varying statutes and some due to text writers’ failure to clearly distinguish between the right of a citizen living within the territory to be annexed to maintain the action and that of one not a citizen of the territory. For example, it is stated in McQuillin Mun. Corp. (3rd Ed.), section 7.43, pp. 503-504, “ * * * in most of the states citizens and taxpayers may institute an appropriate proceeding to test the legality of the annexation or detachment of territory,” but it is noted that in many of the cases cited the “citizens and taxpayers” were freeholders of the territory, and in some instances statutory authorization for a remonstrance suit was present.

On the other hand, in 56 Am.Jur.2d, Municipal Corporations, Etc., section 72, it is stated that the general rule is that private parties are not authorized to attack in a collateral proceeding the corporate existence of a municipal corporation as to its additions, and it is explained that “The general rule is based upon public policy and while it would appear to be in opposition to established legal or equitable principles in that a private party is seemingly without remedy for what may be a private wrong, nevertheless the feeling is that at least a de facto corporation is formed embracing the new territory, and to allow a private attack against the existence of such a municipality would result in undesirable consequences to the public welfare.”

Another view is that a municipal corporation charter is inviolable from private attack, with the rule applying equally to the alteration of municipal limits. See 13 A.L. R.2d 1281. Saylor v. Town of Wallins, 220 Ky. 651, 295 S.W. 993 (1927), is cited by ALR as adhering to this view but Saylor was based on Civil Code Practice section 482, later repealed, which provided that actions to repeal or vacate charters of municipal corporations may be instituted only by order of the legislature.

Still another view, and the one we believe is soundest, is that a citizen and taxpayer of the city may maintain a contest action if he shows that he is being personally, substantially and adversely affected by the annexation, and that the damage to himself is different in character from that sustained by the public generally. See People ex rel. Vanderhyden v. Village of Elwood, 5 Ill.App.3d 590, 284 N.E.2d 668 (1972). See also Carrico v. City of Owens-boro, Ky., 511 S.W.2d 677 (1974), and York v. Chesapeake & 0. Ry. Co., 240 Ky. 114, 41 S.W.2d 668 (1931), which adopt the same rationale.

Appellant argues that Garner v. City of Lexington, Ky., 306 S.W.2d 305 (1957), sanctions the bringing of a suit by a person not a resident or freeholder of the territory to be annexed. After Garner, and no doubt as a means of circumventing the effects of the decision, the legislature enacted KRS 81.-275, supra. We view Garner as merely permitting a party to an action to maintain a suit to protect the jurisdiction of the court from unauthorized interference. In the present case the “interference” was authorized by KRS 81.275. Consequently appellant’s standing must be measured by a different yardstick from that used in Garner.

In the present case there was no pleading or showing whatsoever that appellant was personally, substantially and adversely affected by the annexation. He did not have standing, therefore, to maintain the action and the trial court properly so decided.

The judgment is affirmed.

All concur.


text:
    CITY OF ERLANGER, Kentucky, et al., Appellants, v. Robert R. HOFF and Mona L. Hoff, his wife, Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.

      Harry L. Riggs, Jr., Riggs & Riggs, Er-langer, for appellants.
    David A. Schneider, Hughes, Clark & Ziegler, Covington, for appellees.
   PER CURIAM.

Appellees, owners of a lot in a shopping center in Erlanger, Kentucky, applied for a building permit to construct a service station on the lot. The application was denied by the city on the ground that a zoning regulation precluded service stations in that area. The circuit court concluded that by virtue of KRS 100.367 the city’s zoning ordinance was no longer in existence and the action of the city was arbitrary. The court directed the city to issue the permit.

In 1966 the Kenton County and Municipal Planning and Zoning Commission, of which Erlanger was a member, was formed. Spanning the next five years the following events occurred.

Pursuant to the provisions of Chapter 100 of the Kentucky Revised Statutes, the planning commission presented to Erlanger a proposed comprehensive plan and a proposed zoning ordinance.

A public hearing was held by the Kenton County and Municipal Planning and Zoning Commission on the comprehensive plan for Erlanger, which plan was recommended and approved by the commission.

Erlanger adopted the comprehensive plan but failed to act on the proposed zoning ordinance.

Near the end of the five-year period a public hearing was held by the Kenton County and Municipal Planning and Zoning Commission relative to the re-enactment of existing zoning ordinances of all municipalities in Kenton County “ * * * as interim regulations for said cities as provided in KRS 100.334.”

The commission notified Erlanger of its approval and recommendation of the re-enactment of existing zoning ordinances.

On June 15, 1971, Erlanger gave the first of the required two readings to an ordinance re-enacting its existing zoning ordinance originally enacted in 1947.

On June 17, 1971, the Hoffs applied with Erlanger for a building permit to construct a service station.

On June 17, 1971, the application was denied on the ground that “zoning will not permit service station.”

On July 6, 1971, Erlanger gave the second reading and adopted an ordinance re-enacting the “existing” zoning ordinance.

The main issue to be determined is whether the attempted re-enactment of the zoning ordinance of Erlanger, which precluded the construction of a service station on the lot of appellees, was valid. We believe it was not. KRS 100.367 provides in part:

“This chapter does not affect rights and duties that matured, penalties that were incurred or proceedings that were begun before June 16, 1966. All existing plans, and regulations as amended to June 16,1966, and all organizations which are in existence on June 16, 1966, may continue in force until they are superseded by action of the proper appointing authority or until five (5) years from June 16, 1966, whichever occurs first. At that time all organizations, plans, and regulations will be in conformance with the provisions of this chapter.”

It is significant, we believe, that the predecessor of KRS 100.367, KRS 100.035, did not contain the five-year limitation, and in City of Louisville v. Bryan S. McCoy, Inc., Ky., 286 S.W.2d 546 (1956), the court held that the existing zoning system would continue until a new system was placed in operation. Perhaps as a result of this decision the legislature enacted the five-year limitation provision in 1966.

On June 15, 1971 (five years from the effective date of the act as referred to in KRS 100.367), Erlanger’s zoning ordinance ceased to exist as not being in conformance with the provisions of Chapter 100. Specifically the preclusion in the ordinance of service stations in the area was inconsistent with the comprehensive plan permitting service stations as a conditional use. Under the comprehensive plan and the zoning ordinance proposed for. Erlanger, the lot in question was within a larger area recommended to be zoned as Neighborhood Shopping Center, which zoning classification would allow a gasoline service station as a conditional use.

Chapter 100 was completely revised in 1966 in an attempt to provide workable procedures for handling the very complicated problems inherent in zoning. It is clear that the legislature considered-careful planning as a prerequisite of good zoning. It was stated in Fritts v. City of Ashland, Ky., 348 S.W.2d 712 (1961), “It is to be hoped that in the future zoning authorities will give recognition to the fact that an essential feature of zoning is planning.” The court lamented in City of-Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971), “That statement made in 1961 has had little discernible effect.” Erlanger’s failure to implement the comprehensive plan with a compatible zoning ordinance within the five-year period left the city without zoning regulations. We find no merit in appellants’ contention that the re-enactment of the existing zoning ordinance amounted to interim regulations as provided in KRS 100.334, since that section is concerned with interim regulations of the planning commission in formulating a comprehensive plan.

There being no valid zoning ordinance after June 16, 1971, we agree with the trial court’s finding that Erlanger acted arbitrarily in denying the application.

The judgment is affirmed.

A1Í concur.


author: PER CURIAM. CLAYTON, Justice

text:
    Fred PATRICK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 23, 1976.

      Jack Emory Parley, Public Defender, Jim Early, Asst. Public Defender, Frankfort, for appellant.
    Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

Fred Patrick was convicted of possession of burglary tools, in violation of KRS 433.-120(2), and was sentenced to a term of two years’ confinement in the penitentiary. On appeal from the judgment of conviction, Patrick’s sole contention is that the admission of evidence concerning the tools, over his objection, was error because the evidence was obtained through an unlawful search of his automobile by the police. We find merit in the contention.

Around 2:30 a. m. on a day in October 1972, a city patrolman of Danville, Kentucky, saw Patrick walk away from the front of a store in a shopping center, enter a car, and drive away. The patrolman followed the car in his cruiser for a short distance, and then signaled Patrick to pull over to a stop. One Alvin Ferguson, Jr., was in the car with Patrick. The patrolman asked Patrick to produce his driver’s license and the registration certification for the car. Patrick produced his driver’s license but did not have the registration certificate. At that time the patrolman observed a pair of gloves lying on the floor on the left front side of the car. Because Patrick did not have the registration certificate, the patrolman asked Patrick to drive his car, following the police cruiser, to the police station. Patrick did so, and upon arriving at the station all three entered the station. While awaiting a check to be made on the vehicle registration, the patrolman had a “character check” made on Patrick and Ferguson, and it disclosed that Ferguson on a prior occasion had been charged With possession of stolen property. Thereupon the patrolman went outside to Patrick’s car, for the purpose, he said, “to get the pair of gloves that was in the vehicle.” He opened the left door of the two-door car, and saw a lug wrench and a tire tool protruding from under the front seat. Shining his flashlight around, he saw a hammer handle also “sticking from under the front seat.” He then went around the car, opened the right door, and discovered a chisel lying beside the front seat, between the seat and the door. The tools above mentioned were then taken into possession by the Danville police, and were the basis for the charge of possession of burglary tools.

The Commonwealth is not entitled to invoke the “plain view” doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), because the tools here were not in plain view before the car doors were opened, nor were they inadvertently come across during the course of opening the car doors for a legitimate custodial purpose. The only things in plain sight from outside the car were the gloves, and they did not provide cause to believe that incriminating objects were in the car. There was no valid reason for the officer to take the gloves from the car, so his opening of the door for that purpose cannot justify the subsequent observing of the tools. The simple truth is that the car was searched.

The search is not sought to be justified as one made incidental to an arrest, for weapons, to protect the personal safety of the arresting officer. See Phillips v. Commonwealth, Ky., 473 S.W.2d 135 (1971). Nor is it claimed that the car was being impounded and that the door was opened to make an inventory of the car’s contents, in the course of which the tools came into plain view. Had it been made, such a claim would be difficult to sustain under the holding in Commonwealth, City of Danville v. Dawson, Ky., 528 S.W.2d 687 (1975).

The only ground, other than the “plain view” doctrine, on which the Commonwealth undertakes to justify the search, is that the patrolman had probable cause to believe that the car contained the instruments or fruits of a crime. Reference is made to Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969), in which the Supreme Court conditioned a right to search an automobile on there being “probable cause to believe that the car contains articles that the officers are entitled to seize,” or the officer’s having “reasonable cause * * * for belief that the contents of the automobile offend against the law.”

We are of the opinion that the facts of the instant case do not meet the Chambers test. The patrolman had only the three facts that Patrick and Ferguson were in the vicinity of a store at an unusual hour, Patrick had no registration receipt for the car, and Ferguson on a prior occasion had been charged with possession of stolen property. There was nothing to suggest that a crime had been committed in the vicinity, by Patrick, Ferguson, or anyone else, that night, or that they would have in the ear the instruments or fruits of some crime committed somewhere on some occasion. There simply was no probable cause for the patrolman to believe that the car had contents offending against the law or of a character entitled to be seized.

No support for the search in this case is claimed to exist, nor can it be found, in Scillion v. Commonwealth, Ky., 508 S.W.2d 307 (1974). There the search was for a weapon or weapons which the arresting officer had cause to believe might then and there be used against him.

The judgment is reversed.

All concur except CLAYTON, J., who dissents.

CLAYTON, Justice

(dissenting).

I respectfully dissent from the majority opinion.

I interpret the Scillion case quite differently from the majority opinion. The facts of the Scillion case do not bear out the distinction the majority opinion attempts to make, because there was no indication in Scillion that the officers were searching for weapons which they had reasonable grounds to believe might be used against them.

In the case at bar, we must consider the facts giving probable cause to the officer: the late hour; the suspicious nature of appellant’s acts in the vicinity of the shopping center, i. e., walking away from the front of a store in a shopping center at 2:30 a. m.; the character report indicating appellant’s companion had been previously charged with possession of stolen property; and the inability of appellant to produce a valid registration certificate.

In upholding the conviction of Scillion, the court noted at page 308:

“We believe, and we have stated before, that different rules apply to the search of an automobile than apply to the search of a home, and that the mere stopping of an automobile involves neither search nor arrest and hence requires no probable cause, so long as the vehicle is stopped for a reasonable purpose. Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). . . .

For the foregoing reasons, I would affirm the judgment of conviction.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Richard J. GETTY, Respondent.
    Court of Appeals of Kentucky.
    Jan. 17, 1975.
    Rehearing Denied. April 25, 1975.
    Leslie G. Whitmer, Director Kentucky Bar Association, Frankfort, for complainant.
    Raymond Francis Connell, Robert J. McDaniel, Paris, for respondent.
   PER CURIAM.

This disciplinary matter is before the court on a recommendation that Richard J. Getty be suspended from the practice of law in this state for a period of one month, and that he pay the costs of this action.

A charge was filed against Getty by the Kentucky Bar Association on May 3, 1973, consisting of six counts relating to his conduct as defense counsel in the case of Commonwealth of Kentucky v. Lance Kohler, Fayette Circuit Court. On August 2, 1973, an additional charge was filed against Getty. This charge consisted of four counts relating to Getty’s conduct as defense counsel in the cases of Commonwealth v. Campbell, Harrison County Court; Commonwealth v. Morgan, Nicholas Circuit Court; and Commonwealth v. William Highlander, Jr., Nicholas County Court. On August 2, 1973, the Inquiry Tribunal ordered the two charges consolidated to be tried as a single disciplinary action. RCA 3.260. Getty filed responses to each of the charges.

A three-man trial committee appointed by the President of the Kentucky Bar Association conducted hearings in which Getty and his counsel participated. The trial committee found Getty not guilty on all charges and recommended to the Board of Governors of the association that all counts, on both charges, were not proven by a preponderance of the evidence and should he dismissed.

The Board of Governors considered the trial committee’s report, reviewed the record, and recommended to this court a finding of not guilty on all- counts except count 1 of the second charge. On that count, the Board of Governors recommended a finding of guilt and stated:

“In the Harrison County Court case styled Commonwealth v. Campbell, Richard J. Getty, during his representation of the defendant Campbell at trial on or about March 27, 1973, called County Attorney John M. Keith a ‘damn liar’ on two occasions out of the presence of the jury. After repeated admonishment of County Judge Carl Nunnelley regarding respondent’s remarks and attitude toward witness State Trooper John Conley continued his badgering and harassment of witness Conley. After the noon recess, respondent attempted to use a chart or card which indicated the amount of alcoholic beverage a person of a certain size could use without being under the influence of alcohol. Respondent laid no foundation for the introduction of the card into evidence. Under the repeated objection to the introduction of said evidence by County Attorney John M. Keith, respondent continued his badgering and questioning in a loud and boisterous manner, completely ignoring the court and accused the court of attempting to influence the jury against respondent’s client. During this latter event, respondent pointed his finger at the court in a very disrespectful and threatening manner after being admonished by the court to desist. Respondent’s conduct during the trial caused the court to declare a mistrial and find respondent in contempt of court for his boisterous haranguing and contemptuous attitude toward the court.”

Getty’s arguments on appeal are:

1. The findings of the trial committee as to all charges were supported by substantial evidence and conclusive of his innocence.

2. The recommendation of the Board of Governors should be set aside because it failed to submit separate findings of fact and conclusions of law contrary to those of the trial committee.

3. The costs should be fairly apportioned.

4. His conduct was not such as to warrant punishment.

5. The Board of Governors erred in permitting counsel for the Kentucky Bar Association to be present at their meeting when Getty’s counsel was not permitted to be present or heard.

This court has reviewed the 10 volumes of evidence heard by the trial committee and considered by the Board of Governors. The charge against Getty consisting of six counts relating to his conduct as defense counsel for Kohler in the Fayette Circuit Court is not supported by substantial evidence. The record is clear that the primary witness for the Kentucky Bar Association was Lance Kohler. The trial committee found that the evidence in the first six counts in the complaint was a swearing contest between Getty and Kohler. It noted that Kohler is a disbarred attorney, presently serving a sentence in the penitentiary for the sale of narcotics. In its findings of fact concerning Getty’s representation of Kohler, the trial committee applied the standards enunciated by this court:

“In general, the veracity of witnesses is to be determined by (1) Their appear-anee on the stand, and their character insofar as their character bears upon the question of their probable willingness to lie; (2) The evidence or non-evidence of a motive for falsification; and (3) The collateral undisputed facts bearing upon the intrinsic probability of the truth or falsehood of the testimony given.” In re Hargis, 301 Ky. 276, 190 S. W.2d 333 (1945).

This court deems it unnecessary to dwell upon the incredible testimony of Lance Kohler. The trial committee did not believe him. The Board of Governors found his testimony lacking. This court concurs in these findings. The allegations contained in Counts I through VI of Charge 1 were not established by a preponderance of the evidence. Therefore the action of the trial committee and the Board of Governors as to these counts was correct and this court concurs in the recommendations of the Board of Governors by a vote of 9-3 that Getty “be adjudged not guilty on the provisions of the charge filed May 3, 1973.”

Before proceeding to consider the other charges against Getty, this court reaffirms its position with respect to the roles of a trial committee and the Board of Governors in a disciplinary proceeding.

“The report and recommendations, of the trial committee are only advisory to the Board of Governors, as are the Board’s recommendations to this court. RCA 3.400, 3.420 (now RCA 3.360, 3.-370). This means, of course, that in the end this court must be judge of the factual as well as the legal issues and of the final action to be taken. The role of fact-finder is neither welcome nor comfortable to an appellate court, but obviously we have saddled it upon ourselves by our own rules for this type of proceeding Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900 (1972).

Count No. I of Charge 2 concerned the conduct of Getty in his representation of Alvin Campbell in the Harrison County Court. Campbell was charged with operating a motor vehicle while intoxicated. The trial committee complacently referred to the incident of Getty’s calling the County Attorney a damned liar on two occasions as “lawyer to lawyer argument” and “if every attorney who said these words to another attorney was charged, we would all be respondents.” The trial committee placed this incident in the same category as the gag which says: Two lawyers castigate each other. The one calls the other an unmitigated liar. The other retorts, “you’re an idiotic scoundrel.” Whereupon the judge says, “now that the attorneys have identified each other, let’s proceed with the case.”

This court does not view the conduct of Mr. Getty so lightly. On that occasion Getty not only called the County Attorney a damned liar on two occasions, but his conduct toward the County Judge was reprehensible. Getty paid no attention to the rulings of the judge. He badgered and harassed a witness. He was loud and boisterous. He accused the court of attempting to influence the jury against his client. He approached the bench, and within a very short distance from the judge pointed his finger at the court in a threatening and disrespectful manner. Getty’s conduct during the trial caused the court to declare a mistrial. The judge found Getty in contempt for his boisterous and contemptuous attitude.

Such misconduct as shown by Getty and his bad deportment give the profession of law a bad image. There is no place in any courtroom for such flamboyant forensics. No attorney should show such calloused disregard and lack of respect for a presiding judge. Any attorney should know that good manners, courtesy and etiquette in the courtroom are more than a matter of form. These are the components which help prevent a trial from deteriorating into a brawl. A lawyer must not be guilty of such conduct which violates the admonition contained in the Code of Professional Responsibility. Canon I, DR 1-102(A)(5), (6). Getty’s conduct is in violation of the stated disciplinary rules adopted by this court as a sound statement of the standard of professional conduct required of members of the bar.

The Board of Governors by a 9-2 vote adjudged Getty guilty of unprofessional conduct on Count I of Charge 2 and recommended that he be suspended from the practice of law in Kentucky for a period of one month and required him to pay the costs of this action. The Board of Governors concurred in the findings of the trial committee as to Count Nos. II, III and IV of Charge 2.

Count II. Getty was charged with unprofessional conduct in the Nicholas County Circuit Court during his representation of the defendant, Morgan, on October 6, 1972. The evidence reveals the same pattern shown in Count I. Getty was continually reprimanded by the court for interrupting the Commonwealth’s Attorney in the presentation of the Commonwealth’s case. At the noon recess he was abusive toward the County Attorney. He followed the Commonwealth’s Attorney into the County Attorney’s office and grabbed him by the left shoulder. The trial committee, in its findings of fact as to this charge, stated: “It appears to the committee that the general demeanor of all counsel, both in and out of the court room, was one of antagonism toward each other. Further, the testimony indicates that in this section of the state such conduct is the norm and is somewhat expected.” This court is of the opinion that such is not the norm. If it is, the norm will have to be upgraded. Getty’s conduct on this occasion is not conducive to the efficient administration of justice, and such action when called to the attention of this court will not be tolerated.

Count III. Getty was charged with unprofessional conduct during his representation of William Highlander in the Nicholas County Court. The evidence reveals the same pattern of conduct on the part of Getty as was shown on Charges I and II. He attempted to disrupt the court proceedings and was admonished by the County Judge. During a recess, Getty became abusive toward a witness.

Count IV. Getty accused the court reporter of not properly transcribing her notes in the Highlander case. He also accused the County Attorney of Nicholas County of influencing the transcription of her notes.

Plato wrote in 400 B.C., in The Laws:

". . . If justice be noble, how can we deny that pleading is a noble thing.”

If a lawyer truly fulfills his role as an advocate, he can then measure up to that famous toast by Daniel Webster:

“The Law: It has honored us; may we honor it.”

Getty’s misconduct in the courtoom indicates that he failed to honor the law. He failed to measure up to the rules required of him.

Getty’s argument that irregularities occurred in the conduct of the proceeding by the Board of Governors in permitting counsel for the Kentucky Bar Association to be present when his attorney was not permitted to be present is refuted by the record. It is established by the record that the Board of Governors adhered to the rules of this court.

This court rejects Getty’s contention that the punishment he received from the contempt order was sufficient. Punishment for contempt is not a prohibition of disciplinary proceedings. A prior conviction for contempt adds force to the need for discipline. Getty’s contention that the recommendation of the Board of Governors should be set aside because it failed to submit separate findings of fact has no merit. There are no rules of this court that require such action. RCA 3.390.

This court is unanimous in the opinion that the' charges contained in Counts I through IV of Charge 2 are sustained by a preponderance of the evidence. The consensus among the members of the court is that Richard J. Getty be suspended from the practice of law in this state for six months and that costs be assessed as provided by RCA 3.450(a) and RCA 3.370.

It is ordered that Richard J. Getty be suspended from the practice of law in this Commonwealth for a period of six months, and he is required to pay the costs of this proceeding.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. John W. COLLIS, Respondent.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Rehearing Denied June 27, 1975.
    Certiorari Denied Jan. 12, 1976.
    See 96 S.Ct. 775.
    Gentry E. McCauley, Jr., Versailles, Leslie G. Whitmer, John T. Damron, Kentucky Bar Ass’n, Frankfort, David T. Enlow, Lexington, for complainant.
    R. J. Turley, Turley, Savage & Moore, Lexington, for respondent.
   PER CURIAM.

This is a disciplinary proceeding in which the Board of Governors of the Kentucky Bar Association found respondent guilty of unprofessional conduct and recommended that he be permanently disbarred from the practice of law.

A six-count charge was filed against respondent by the Kentucky Bar Association. A trial committee appointed in accordance with the rules heard the testimony of witnesses and after finding the respondent guilty on all counts recommended a reprimand. The Board of Governors at a subsequent meeting considered the record, found the respondent guilty on all counts, and recommended that the respondent be permanently disbarred from the practice of law. In response to the rule issued in accordance with the recommendation of the Board of Governors, respondent moved for an extension of time to file a supplemental brief after the taking of additional evidence and issued a subpoena duces tecum served on the secretary of the Kentucky Bar Association to produce all records relating to the disciplinary proceeding against the respondent, including the minutes of the meeting of the Board of Governors together with a notice to the secretary of the Kentucky Bar Association to take his deposition. A motion to quash the subpoena and notice was granted by this court.

Respondent alleges that some sinister influence was at work because of the wide disparity between the recommendation of the trial committee and that of the Board of Governors. We consider the taking of further evidence and examination of the records of the meeting of the Board of Governors as to the reasons, if any, for the disparity between the recommendation to be irrelevant. We again point out that “the report and recommendations of the trial committee are only advisory to the Board of Governors, as are the Board’s recommendations to this court. * * * This means, of course, that in the end this court must be judge of the factual as well as the legal issues and of the final action to be taken.” Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900, 903 (1972).

We review the record and arrive at our own conclusion as to the proper disposition of the case. The record here is voluminous and covers in minute detail every aspect of the counts contained in the charge. Without a tedious detailing of the facts, the record- clearly discloses that in three cases the respondent wrongfully withheld his clients’ funds for varying periods of time, and in each case one or more times issued checks which were returned for “insufficient funds.” The respondent’s conduct as revealed in this record is so bizarre that we cannot imagine any reasonable explanation, and the attempted explanation for the conduct strains the bounds of credulity. In short, we find no satisfactory explanation which could mitigate the seriousness of respondent’s conduct. We are of the opinion that the conduct of respondent portrays such a pattern of dishonesty and lack of ethical standards in dealing with his clients, that he is no longer fit to be a member of the bar. See Kentucky Bar Association v. Tucker, Ky., 535 S.W.2d 97 (rendered May 9, 1975).

The only inference which can be drawn from the testimony in this record is that the respondent converted his clients’ funds to his own use. The checks returned for “insufficient funds” from different bank accounts in the circumstances presented here, without any credible explanation, can only mean that the clients’ funds were no longer intact and were converted by the respondent to his own use. This conduct warrants the permanent disbarment of- an attorney from the practice of law. In re Waxman, 290 Ky. 277, 160 S.W.2d 587 (1942).

When an attorney converts his client’s funds to his own use, he commits an offense greater and broader than a mere injury to his client, he brings the entire bar into disrepute in the eyes of the public. Such conduct evinces the unfitness of the attorney to be a member of the legal profession and an officer of the court.

Respondent’s argument that his clients did not suffer a loss and that all funds were finally paid cannot be considered mitigating in the circumstances presented here.

The public is entitled to rely on an attorney’s admission to the practice of law as a certification of the attorney’s honesty, high ethical standards and good moral character. If the public’s confidence in the legal profession is to be maintained, it is the duty of the Kentucky Bar Association and this court to remove those attorneys who by their dishonest actions in dealing with clients’ funds and otherwise demonstrate a lack of these qualities. Respondent’s conduct in our opinion is so reprehensible as to make him unworthy of public confidence and unfit to be an officer of the court.

Accordingly, it is ordered that respondent be and he is hereby permanently disbarred from the practice of law in this Commonwealth, and he is required to pay the costs of this proceeding.

All concur.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Neville M. TUCKER, Respondent.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Rehearing Denied June 27, 1975.
    Certiorari Denied Jan. 12, 1976.
    See 96 S.Ct. 785.
    Leslie G. Whitmer, Counsel, Kentucky Bar Ass’n, Frankfort, for complainant.
    Robert E. Delahanty, Delahanty & Terry, Louisville, for respondent.
   PER CURIAM.

This is a disciplinary proceeding in which the Board of Governors of the Kentucky Bar Association found respondent guilty of unprofessional conduct and recommended that he be publicly reprimanded and ordered to pay the costs of the action.

A charge was filed against the respondent after he failed to file a response to the complaints certified to him. After the charge was filed, respondent failed to file a timely answer as required by RCA 3.160. The inquiry tribunal entered an order submitting the record to the Board of Governors for disposition. More than a month after submission, the respondent attempted to file a late answer to the charge.

The respondent settled a personal injury claim for a New Jersey client. After payment of expenses and attorney fee, there remained a balance of $42,666.96. Respondent forwarded a check to his client in the sum of $42,000, stating that $666.96 was being retained “until I can make the proper adjustment for the last plane ticket and a hotel bill which I neglected to include in the settlement as a deduction * * *. You shall hear from me again in a few days at which time I shall make the proper adjustments and forward the balance to. you.” About nine months later and after nine written demands by his client’s New Jersey lawyer, respondent forwarded a check to his client for $550. This check was returned to the client twice marked “insufficient funds.” After another eight months elapsed and four additional written demands for payment, respondent forwarded another check to his client in the sum of $570. This check also was returned because of “insufficient funds.” Four months later after respondent’s client filed a complaint with the Kentucky Bar Association, respondent sent a certified check to his client in the sum of $570.

Count I of the charge has as its basis the withholding of the client’s money. Count II of the charge is based on the respondent’s checks being returned for “insufficient funds.”

Respondent’s answer recites that the delay in remitting funds was caused by the exchange of an airline ticket by the client and members of her family. Further that a certified check in the sum of $570 was submitted which represented the amount due the client plus the charges incurred by the return of the otfrer checks.

Respondent argues that the vote of guilty on Count I by the Board of Governors does not represent a majority vote. We are not disposed to unravel this question for the reason that we direct this opinion to the matters contained in Count II of the charge.

The recommendation by the Board of Governors is advisory only. This means that this court must be the judge of the factual as well as the legal issues and of the final action to be taken. Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900 (1972).

We are of the opinion that the facts set out in Count II, and admitted by respondent, constitute such dishonesty by the respondent as to warrant permanent disbarment from the practice of law. The fact that these checks were returned for “insufficient funds” can only have one meaning, that is the client’s funds were no longer intact. Simply stated, respondent had converted these funds to his own use. We see little difference in the facts here and those in In re Waxman, 290 Ky. 277, 160 S.W.2d 587 (1942), which resulted in the permanent disbarment of an attorney. The fact that restitution was made does not alter the initial dishonesty in misappropriating his client’s funds. With respect to a client’s funds in the hands of an attorney, he is the trustee of an express trust, and converting these funds to his own use is such reprehensible conduct as to make him unworthy of public confidence and unfit to discharge in a proper manner his obligations as an officer of the court.

Honesty, high ethical standards and good moral Character are necessary qualifications for admission to the bar, and their existence is essential to the continuance of such membership. Therefore, when an attorney ceases to possess these traits of character in whatever mode or manner the want of them is exhibited, he may be removed.

Cf. Kentucky Bar Association v. Collis, Ky., 535 S.W.2d 95 (rendered May 9, 1975).

Accordingly, it is ordered that the respondent be and he is hereby permanently disbarred from the practice of law in this Commonwealth, and he is required to pay the costs of this proceeding.

All concur.


author: MORGAN, Judge. SEILER, Chief Justice

text:
    CITY OF BRIDGETON, a Municipal Corporation, Plaintiff-Respondent, v. NORFOLK & WESTERN RAILWAY COMPANY and Linclay Development Corporation, Defendants-Respondents, Anne Englert, Intervenor-Appellant. LINCLAY DEVELOPMENT CORPORATION and Earth City Corporation, Plaintiffs-Respondents, v. CITY OF BRIDGETON, a Municipal Corporation, Defendant-Respondent, Anne Englert, Intervenor-Appellant.
    Nos. 58772, 58773.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.
    Rehearing Denied April 14, 1976.
    Lewis C. Green, St. Louis, for intervenor-appellant.
    Shulamith Simon, Husch Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for Linclay Development Corp. and Earth City Corp.
    Albert E. Schoenbeck and Stephen M. Schoenbeck, St. Louis, for Norfolk & Western Railway Co.
   MORGAN, Judge.

The initial and perhaps dispositive issue before this court is the right of one resident of the City of Bridgeton to intervene after entry of judgment in two lawsuits, consolidated for purposes of trial, wherein said city was a losing party and elected not to appeal. The trial court denied intervention.

Both cases arose out of a zoning dispute in said city involving land contiguous to the Earth City development project in St. Louis County. The city had rezoned certain land from residential to industrial use in order to permit the construction of a railroad spur to serve the Earth City area; and, Anne Eng-lert, appellant — and would-be intervenor, is credited with organizing a successful referendum to force the city to rezone the land in question from industrial back to residential use.

In No. 58,772, the city filed suit against Norfolk and Western Railway Company and Linclay Development Corporation to enjoin construction of a railroad spur through a portion of the city zoned residential and further requested a mandatory injunction to compel the removal of such part of the track as had been constructed. The spur was to serve an industrial tract outside the city.

In No. 58,773, suit was filed by Linclay and its affiliate, Earth City Corporation, against the City of Bridgeton seeking an injunction against enforcement of the ordinance and other relief. That portion of this case seeking an injunction against enforcement of the zoning ordinance was consolidated for trial with No. 58,772.

On June 20, 1974, the Circuit Court of St. Louis County entered a judgment to the effect that the only reasonable use of the land was for industrial purposes in light of the use of the surrounding lands; and, that the repeal by the city of the industrial zoning was “unreasonable, arbitrary, capricious and void,” and that a residential zoning would constitute a denial of due process as to Linclay and Earth City Corporation.

On July 3, 1974, the City Council of the City of Bridgeton decided not to appeal and so instructed the City Attorney.

On July 5, 1974, Anne Englert filed a motion for leave to intervene in the consolidated cases. An evidentiary hearing was held on July 12, 1974, and arguments were made on July 16, 1974.

On August 13,1974, the trial court denied her motion (in each case) and she has appealed. r

Supreme Court Rule 52.12 reads, in part, as follows:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition, of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

In Hobson v. Hansen, 44 F.R.D. 18, 22 (D.C.1968), the court said:

Petitioner Hansen and a group of 20 parents seek to intervene as a matter of right pursuant to Rule 24(a), Ped.R.Civ.P. That rule, in relevant part, provides:
“Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
To intervene, then, petitioners must establish, first, that they have an interest in the proceeding, second, that they are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect” it, and, third, that their interest is not being adequately represented by existing parties. And in seeking to intervene after final judgment, petitioners must meet an especially heavy burden. For though the rule does not in terms distinguish between intervention before and after final judgment, post-judgment motions are rare and at this stage of the proceedings Rule 24 should generally be applied less liberally.
This is so because the rule is couched in terms of “timely application,” which makes it appropriate to take into account the stage of the proceedings. (Emphasis added.)

The “interest in the proceeding” which Anne Englert seeks to establish is set forth in her brief as follows: “Appellant claims multiple interests in the subject matter of this action. First, as a citizen of a suburban community; as a civic leader and Councilwoman of Bridgeton, representing the ward in which the subject property is located; as the leader (or one of the principal leaders) of the four-year fight to preserve the agricultural flood plain in Bridgeton and prevent excessive industrial development in Bridgeton; as a founder and Board member of a citizens’ organization the purpose of which is to preserve a healthful, pleasant, residential, and open environment in Bridgeton, as a principal leader of the referendum drive which obtained the required signatures on referendum petitions, and then won the referendum vote by 2064 to 1686, thus overruling the City Administration; as a plaintiff in two lawsuits (now consolidated into one, Coalition for the Environment, etc. et al. v. Volpe, No. 72 C 32(1), United States District Court for the Eastern District of Missouri) to enjoin further development by Linclay and Earth City in the unincorporated area immediately south of the subject property; and as appellant in another lawsuit now pending in the Kansas City Court of Appeals (Englert v. Public Service Commission, No. KCD 26919), contesting the Public Service Commission’s approval of Norfolk and Western’s application for authority to construct a tunnel under St. Charles Rock Road, she has a dominant interest in preserving the validity and enforceability of Bridgeton’s zoning ordinance, and particularly the zoning of the subject flood plain property (Tr. 269-72, 289). Kellog v. Joint Council of Women’s Auxiliaries Welfare Association, supra, at 376-77. [265 S.W.2d 374 (Mo.1954)] * *

“Second, as a resident in a suburban community, she has an interest in maintaining the community as a community predominantly residential and suburban; in protecting herself, her home, her family and her life from the multifarious consequences of the proposed Earth City development, including the railroad noise she would hear in her bedroom and her front yard, the airborne dirt which would soil her curtains, linens, and clothes, as well as her lungs; in preserving her freedom to traverse the streets of Bridgeton without being stalled by the excessive traffic which would result from industrial development of the bottom land, and her freedom from additional taxes which would be required to provide additional streets and other services (police, fire, etc.) to serve the proposed development and the people it will bring to Bridgeton, and her freedom to walk or drive down to the river, past the Rock Industrial Park, through or alongside the agricultural bottom land, enjoying and inhaling its freshness, openness, and beauty; in preserving ner joy in living in a small community which is predominantly residential, with a limited balancing of industrial area, with a limited balancing of agricultural open space in the bottom land, in keeping with Nature’s design, with fresh farm products available close at hand, grown locally. Village of Belle Terre v. Boraas, 416 U.S. 1 [94 S.Ct. 1536, 39 L.Ed.2d 797] (1974).

“Third, appellant alleged that the value of her property and the property of other class members would be substantially diminished by the proposed industrial development.

“Fourth, the combination of these interests, collectively, is more than sufficient to fulfill the requirements of Civil Rule 52.-12(a)(2).”

A review of the record made at the evi-dentiary hearing held on July 12, 1974, reveals that Anne Englert had knowledge of the two suits when they were filed; that she had prior knowledge the cases were coming to trial on June 19, 1974; that she was asked to testify in the case but did not (her explanation was that she had gone with her husband on a vacation required by his health); that her home is approximately two miles from the property in question; and, that the decision on the part of the City Council not to appeal was made in good faith. There was no evidence offered to support her allegation that “the value of her property . . . would be substantially diminished by the proposed industrial development.”

We hold, on these facts, that appellant’s motion to intervene, after trial and entry of judgment, was not timely made (Cf. Stallings v. Conn, 74 F.2d 189 (5th Cir. 1934)); that her protest amounts only to a “dissent” from the Council’s good-faith decision not to appeal (Hobson, supra, 44 F.R.D., 1. c. 30); that there is no showing that her interests were inadequately represented; that “furtherance of justice” does not require her intervention (Zeitinger v. Hargadine-McKittrick Dry Goods Co., 298 Mo. 461, 472, 250 S.W. 913, 916 (banc 1923)); and, that the trial court reasonably could have found that she gambled on the outcome of the proceedings before judgment and now seeks to compel a retrial of the original issues. (Lockwood v. Hercules Powder Co., 7 F.R.D. 24, 28 (W.D.Mo.1947)). Compare also Eakins v. Burton, 423 S.W.2d 787, at 1. c. 790-791 (Mo.1968), wherein this court said: “We also have the view that the motion of Western was not timely. It had notice concerning all the proceedings, including the fact that judgments were to be taken. Western apparently assumed that defendant would make a vigorous defense and that it could safely refuse to defend under the circumstances. As we view the situation Western took a calculated risk that defendant would contest the claims of plaintiffs and, when he did not do so, sought to have the court give it another chance to defend. We think it is obvious, under these circumstances, that to be timely the motion to intervene should have been filed before the judgments were entered. * * * Western also contends that it should have been permitted to intervene under Civil Rule 52.11(b), which provides for permissive intervention, and that the court abused its discretion in failing to permit it to intervene. That subdivision of the rule also requires that the application be timely. Our ruling to the effect that Western’s motion was not timely is sufficient to dispose of this contention and it is therefore ruled adversely to Western.”

The order of the trial court, denying the motion to intervene, is affirmed; and the appeals are dismissed.

HOLMAN, HENLEY and DONNELLY, JJ., concur.

SEILER, C. J., dissents in separate dissenting opinion filed.

BARDGETT and FINCH, JJ., dissent and concur in separate dissenting opinion of SEILER, C. J.

SEILER, Chief Justice

(dissenting).

Appellant sought to intervene as a matter of right under rule 52.12(a)(2) and, in the alternative, permissively under rule 52.-12(b)(2). She is denied, largely on the basis her application was not timely and on the assumption her house is too far away from the property in question for her to be adversely affected, and hence she lacks the necessary standing or interest. I am unable to agree. It seems to me the application was timely and that appellant has enough interest to warrant her being permitted to intervene.

The yardstick of timeliness is not one which mechanically operates according to the stage of the proceedings, but rather is one which is applied in light of the policy which prompts the requirement of timeliness. The yardstick is a flexible one.

In McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970), the court observed as follows:

“ ‘Timeliness’ is not a word of exactitude or of precisely measurable dimensions. The requirement of timeliness must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice. The rule has its permissive aspects, and while we do not dislodge nor denigrate the trial court’s discretion in matters of intervention, we must view its exercise in the liberal atmosphere of the Rules of Civil Procedure, which are to be construed ‘to secure the just, speedy, and inexpensive determination of every action.’ Rule 1, Fed.R.Civ.P. In the present case McDonald seems to assume that the requirement of timeliness is a tool of retribution which can be used to punish a would-be intervenor for allowing time to pass before moving to intervene. We cannot agree with such a view. We think it is correct to say that since ‘the privilege of intervention stems from a desire to protect the rights of unrepresented third parties, it becomes apparent that the timely application requirement under Rule 24 was not intended to punish an intervenor for not acting more promptly but rather was designed to insure that the original parties should not be prejudiced by the intervener’s failure to apply sooner.’ Note, The Requirement of Timeliness Under Rule 24 of the Federal Rules of Civil Procedure, 37 Va.L.Rev. 863, 867 (1951). Accordingly, it has been the traditional attitude of the federal courts to allow intervention ‘where no one would be hurt and greater justice would be attained.’ ”

In 7A Wright & Miller, Federal Practice and Procedure § 1916 at 573-83 (1972), we find this comment on the federal rule, of which ours is a rescript:

“Even though the requirement of timeliness applies to both intervention of right and permissive intervention, a different standard is used, depending on the type of intervention sought, in determining what is timely. Since in situations in which intervention is of right the would-be intervenor may be seriously harmed if he is not permitted to intervene, courts should be reluctant to dismiss a request for intervention as untimely, even though they might deny the request if the intervention were merely permissive.

“In the exercise of its discretion the court of course will consider the time element itself but this should not be judged in a vacuum. The requirement of timeliness is not a means of punishment for the dilatory and the mere lapse of time by itself does not make an application untimely. The court must consider whether the applicant was in a position to seek intervention at an earlier stage in the case and must weigh the lapse of time in the light of all the circumstances of the case.

“The most important consideration in deciding whether a motion for intervention is untimely is whether the delay in moving for intervention will prejudice the existing parties to the case ... ‘or substantially interfere with the orderly processes of the court.’ If neither of these results would occur the mere fact that judgment already has been entered should not by itself require an application for intervention be denied. Thus although the cases ‘tend to involve unique situations’ and to require ‘a close examination of all the circumstances of the case,’ in a significant number of cases intervention has been allowed even after judgment. One reason for allowing this is so that the intervenor can prosecute an appeal that the existing party has determined not to take” (emphasis supplied).

In 3B, J. Moore, Federal Practice, Sec. 24.13[1] at 526-27 (2d ed. 1975) it is said, “Intervention after judgment is unusual and not often granted. It may be allowed, however, where it is the only way to protect the intervenor’s rights; e. g., where the intervenor would be bound by the judgment and the party purporting to represent him fails to appeal . . . ”

Thus, we can see that the requirements are interrelated. If a party is barred from entering the proceeding earlier because his interest is “adequately represented” (as is the case under both our and the federal rule), then the timeliness must relate to the earliest time when that interest is no longer represented.

Was the appellant’s interest adequately represented by existing parties prior to the time she sought to intervene? This has two aspects. Not only must the representation be inadequate for intervention to be allowed, but conversely, if it is adequate, then intervention is barred by the express language of the rule. Note that the right to intervention is phrased in terms of being able to do so “unless the applicant’s interest is adequately represented by existing parties”, see rule 52.12(a)(2). Moore, supra, § 24.09-l[4] at 314 observes in regard to the “unless” clause: “As noted by Justice Stewart, the ‘requirement of inadequate representation by existing parties as a precondition of the right to intervene ... is obviously an adaptation of the similar standard contained in the former [rule]’ . ”, and on this the same text states at § 24.08[2] at 181: “Even though the applicant might be bound by the judgment, he could not intervene as of right if he was in fact adequately represented by an existing party to the action.” Here, appellant did have notice of the proceedings below, but the ease was being handled by the city council at the time and there is a presumption of adequacy when the cause of action is carried forward by a governmental authority, Archer v. United States, 268 F.2d 687, 689 (10th Cir. 1959); In re Engelhard & Sons Co., 231 U.S. 646, 651, 34 S.Ct. 258, 58 L.Ed. 416 (1914); City of New York v. New York Telephone Co., 261 U.S. 312, 316, 43 S.Ct. 372, 67 L.Ed. 673 (1923). Appellant therefore was not gambling on the outcome of choosing not to intervene, as suggested in the principal opinion, because, as shown, she could not have intervened while the city was still in the case. Lockwood v. Hercules Powder Co., 7 F.R.D. 24 (W.D.Mo.1947), cited in the principal opinion, involved a situation where an employee sought payment of wages due for overtime work by himself and all other “employees similarly situated.” Before trial, the district court struck the pleading on the behalf of the fellow employees because it was “devoid of facts supporting the conclusions” that they had such claims, at 27. The court noted that these employees could join as plaintiffs or intervenors before trial, at 28. Because they were being expressly invited to do so then, the court suggested that they would probably be unsuccessful if they sought to intervene after judgment, pointing out that otherwise the permissive intervenor would be allowed to “gamble on the outcome” and require a retrial of the original issue. These facts distinguish Lockwood from the case at hand. Here, appellant has not been invited to enter and then declined. In contrast, she was not able to intervene so long as the city of Bridgeton was diligently prosecuting one and defending the other of the two cases, Pellegrino v. Nesbit, 203 F.2d 463, 466 (9th Cir. 1953), which means under the facts before us that she could not enter at any time earlier than after judgment.

Once the decision not to appeal was made, her interest was immediately impaired, Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 704 (1967); Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144 F.2d 505, 507 (1944), cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1940). This is because the judgment overturning the zoning would, if not appealed, operate to bind her, Wolpe v. Poretsky, supra, inasmuch as her interest had been sufficiently represented to that point by the city council. The very fact of deciding not to appeal represents an inadequacy of representation, Cooper v. Albuquerque City Commission, 85 N.M. 786, 518 P.2d 275, 279 (1974), so that she then becomes eligible to intervene, as she has no one upon whom she could rely for representation on appeal. “Intervention may be allowed after a final decree where it is necessary to preserve some right which cannot otherwise be protected . . . Here . the right of appeal.” Wolpe v. Poretsky, supra, at 508. Under the facts of the present case, appellant’s intervention was timely since it was sought as soon as her rights were prejudiced.

1 believe the situation presented here is rather similar to one which came before the supreme court of Kansas. A county attorney defended the board of county commissioners’ refusal to rezone plaintiffs’ property. Plaintiffs won judgment in the trial court and adjoining landowners (who were opposing rezoning) then sought to intervene in order to appeal. The supreme court held the trial court should have allowed the intervention, stating:

“Until such time as the county attorney announced that he was not going to file a motion for a new trial and appeal the case if a new trial was denied, the adjoining landowners had been adequately represented by the Board of County Commissioners. On being informed of the defendant’s intentions, the adjoining landowners filed their motion to intervene and attached thereto was a motion for new trial all filed within ten days after judgment. The requirement for ‘timely application’ to intervene has no application . . . until such time as adequate representation ceases.” Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261, 264 (1966).

In Stallings v. Conn, 74 F.2d 189 (5th Cir. 1934), cited in the principal opinion, the court was dealing with the old federal equity rules in effect in 1934. Likewise, in Zeitinger v. Hargadine-McKittrick Dry Goods Co., 298 Mo. 461, 250 S.W. 913 (banc 1923) also cited in the principal opinion, this court in 1923 had neither rules nor statutes on intervention. Here, we have a clear rule and a modern body of case law, Missouri and federal. By referring to these aids, we can see that the appellant here was timely in her attempt to intervene. The facts here are in marked contrast to those in Eakins v. Burton, supra, fn. 1, also cited in the principal opinion. There the movant, Western, a liability insurance carrier, would have had an opportunity again to litigate the issues of the case (at the time plaintiffs sought to collect on the judgments against the insured by execution and garnishment), so that denial of intervention was of no great moment. Here, appellant would clearly be bound and, thus, “disposition of the act may as a practical matter impair or impede [her] ability to protect” her interest. Rule 52.-12(a)(2). Further, Western there had been requested to defend a party at the very outset of the proceeding below, but refused, which differs materially from appellant’s situation.

Defendants assert they have a right to rely on the judgment and decree, it being apparent, they say, that appellant is interested in “delaying and impeding” defendants. It is true that if appellant is permitted to intervene and appeal, there would need be consideration of the appeal on the merits. However, the transcript and exhibits are already here and appellant is not seeking an opportunity for a further hearing to offer more evidence or to raise any new issues, but is asking that the existing residential zoning and the referendum repeal of the industrial zoning be upheld on the present record. If appellant is permitted to intervene, this court has before it all that is needed to decide the case on the merits, so that there is no interference with orderly process, particularly when we consider that the question on the merits involves the reasonableness of a municipal zoning classification, which the courts are required to uphold if “even fairly debatable”, Flora Realty & Invest. Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771, 777 (banc 1952), app. dis’d 344 U.S. 802, 73 S.Ct. 41, 97 L.Ed. 626 (1952). Appellant’s failure to move earlier to intervene is not claimed to have prejudiced defendants in the trial or have caused defendants to leave out something they would otherwise have offered below. If appellant is entitled to intervene she is entitled to appeal and the fact that this means the defendants must carry the battle one step further is incidental, not prejudicial. An appeal taken in any case means the winner in the trial court must exert himself further to preserve his victory.

Defendants also assert appellant lacks sufficient interest to intervene and the principal opinion rests to a large extent on the fact there was no evidence offered to support her allegation that the value of her property would be substantially diminished by the proposed industrial development. But it does not seem to me that this is sufficient to warrant denying her intervention when we consider the personal stake that she has in the outcome of the litigation. This same appellant was one of the party plaintiffs in Coalition for Environment v. Volpe, 504 F.2d 156 (8th Cir. 1974), which involves exactly the same Linclay Development Corporation and Earth City Corporation project as that in the present case. Appellant, other individuals, and several nonprofit corporations composed of various member organizations and individual members challenged the Earth City project. They challenged the urban levee and flood protection system and contended that federal authorization was a precondition to both improvements. They also contended that the project involved was subject to the National Environmental Policy Act and thus required an environmental impact statement. The plaintiffs were seeking a declaration that the federal defendants must assume jurisdiction to assure compliance and plaintiffs sought an injunction against the private defendants to stop the work until they obtained the necessary permits and to restore the tract. The trial court took the position that the appellant was not a proper party to bring any law suit, saying she had not suffered injury and that there was nothing more involved than her personal displeasure. Her claims were substantially the same as those set forth on pages 4 and 5 of the principal opinion herein.

On appeal the court of appeals reversed the district court’s granting of summary judgment against appellant and the issue discussed was whether or not she had the necessary standing. The court of appeals held that she did; that the concept of “injury in fact” includes more than economic harm and that the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process, 504 F.2d at 166. The court said that plaintiffs’ claims constituted more than mere displeasure. It said there were particularized injury claims stemming in various ways from the loss of open space and the changes occasioned or threatened by the project, 504 F.2d at 167. The court referred to loss of viewing open space, loss of natural environment, increased automobile traffic, increase in noise and air pollution; that these were statements of specific injury experienced by ascertainable individuals who reside near or pass through the affected area. At 504 F.2d 168, the court states: “The court is not to consider the weight or significance of the alleged injury, only whether it exists. ‘[A]n identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.’ ” The court pointed out that plaintiffs’ off-tract interest in the land may very well be impaired and such injury is adequate to give standing to challenge of the proposed project.

The same is no less true in the present case.

The record shows that the city of Bridge-ton, population 18,000, consists of 10,263 acres of which 3,718 are developed and 1,693 are single family residential. Earth City, a substantial part of which lies in Bridgeton, is a 1,700 acre development. It is to be a combination multi-family, high density residential, commercial and light industrial city. If it were in a rectangle it would cover an area one mile wide and nearly three miles long. Such a mammoth development would greatly affect the vital interest of every Bridgeton homeowner. It would reshape the very nature of Bridgeton and its neighbors. The purposes of our zoning statutes, as set forth in § 89.040, RSMo 1969, are to provide adequate light and air, prevent overcrowding of land and lessen congestion, all of which are consistent with appellant, as a resident of the community, having a legitimate standing to object to the substantial change in the uses permitted of the Bridgeton land by the decision of the trial court, once appellant’s representative, the city council, elects to get out of the case. In McDermott v. Village of Calverton Park, 454 S.W.2d 577, 581-2 (Mo. banc 1970), the court pointed out the unique situation of the “bedroom” municipalities (of which Bridgeton undoubtedly is one) which surround St. Louis, existing primarily for residential purposes, rather than commercial or manufacturing. In State ex rel. Housing Authority of St. Louis v. Wind, 337 S.W.2d 554, 558 (Mo.App.1960), the court said that considering that zoning ordinances are predicated upon protection of public health, safety, morals and welfare, “ . . . it might well be argued that every resident in the community would, in some measure, have an interest in protecting the issuance of a building permit issued in violation of the applicable ordinance.” The court cited O’Connor v. Board of Zoning Appeals of Town of Stratford, 140 Conn. 65, 98 A.2d 515, 518 (1953), where an “aggrieved” person was held to include “ . . .at least any landowner or resident within the city whose situation is such that the decision of the board may adversely affect him in the use of property owned or occupied by him in some manner within the scope of the purposes of the zoning ordinance.”

We are unnecessarily restrictive and apprehensive when we deny intervention to the appellant. It is contra to our declared policy of liberal construction of the rule looking toward broad intervention. I would permit her to intervene and would then decide the appeal on the merits. Therefore, I respectfully dissent.

      . Our rule 41.03 is worded the same. And it is expressly stated in Eakins v. Burton, 423 S.W.2d 787, 790 (Mo.1968), that our rule on intervention “ . . . should be construed liberally to permit broad intervention.”

      . Equity Rule 37, promulgated in 33 S.Ct. xxviii-xxix, effective in 1913, and abrogated when the Federal Rules of Civil Procedure were promulgated in 1938, is worded in a vastly different manner than our rule 52. It does not mention, for instance, timeliness, impairment of claim, or inadequacy of representation. In the Stallings case, “no excuse for delay in making application” was shown, 74 F.2d at 191, and the discretionary denial of a petition for leave to intervene was held to be not appealable.


author: HOLMAN, Judge. BARDGETT, Judge

text:
    STATE of Missouri ex rel. William Dale McCURLEY, Relator, v. Honorable Forest W. HANNA, Judge, Circuit Court of Jackson County, Respondent.
    No. 59319.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.
    Rehearing Denied April 14, 1976.
    Donald F. Price, Kansas City, for relator.
    John J. Phillips, Independence, for respondent.
   HOLMAN, Judge.

This is an original proceeding in prohibition. Upon application of relator, the Missouri Court of Appeals, Kansas City District, issued a preliminary rule in prohibition. Upon being advised that this court had two cases pending which involved the same questions the court of appeals recommended that we transfer this case before opinion. We agreed and ordered the case transferred and set for argument on the same day as the other two. We decide the case here the same as an original proceeding filed in this court. Art. V, See. 10, V.A.M.S.

The plaintiff-movant Connie G. Speller-berg (formerly McCurley) in the underlying action obtained a divorce from relator in March, 1968. She also obtained custody of their minor child and a judgment against relator for $100 per month for his support. On August 6, 1975, said movant filed a motion in which she requested that relator be cited for contempt for his willful failure to pay said child support payments. She alleged that he was then in arrears in the amount of $1,600. The motion was heard on October 29, 1975.

Since we have concluded that we will not decide this case on the merits we will not state the evidence in detail. We will state, however, that relator testified that business had been bad in his field of computer programming and that the corporation owned and formerly operated by relator and his present wife was now dormant; that he had drawn his salary until May 1, 1975, and since had received unemployment compensation in the amount of $79 per week during a portion of that time. He further stated that his present wife is now employed.

It should be noted that this case was not a proceeding under Section 452.345 but that the court considered it to be based on Section 476.110 which reads, in part, as follows:

“Every court of record shall have power to punish as for criminal contempt persons guilty of . . .

“(3) Willful disobedience of any process or order lawfully issued or made by it; . . .”

At the conclusion of the hearing the court found relator guilty of indirect criminal contempt and he was “ordered committed to the custody of the Director of the Department of Corrections of Jackson County, Missouri, for imprisonment in the Jackson County Jail for a period of 90 days, and that execution of this sentence is suspended and Respondent is placed on probation for a period of one year from this date under the supervision of the Prosecuting Attorney of Jackson County, Missouri, on the condition that he make future payments regularly of $20 per week for the support of Brent to the Petitioner, . . . ” There were further provisions relating to steps relator was required to take in an effort to obtain employment. The court also modified the original decree changing the support judgment from $100 per month to $20 per week. At the request of counsel for relator the court withheld the effective date of the judgment in order to provide time for relator to seek a writ of prohibition. As heretofore stated the preliminary rule was accordingly issued.

We should mention at the outset that opinions have been adopted concurrently herewith in two cases involving some of the same issues as are presented herein. In State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo.1976) we overruled the case of Coughlin v. Ehlert, 39 Mo. 285 (1866) which held that a judgment providing for imprisonment for contempt for failure to pay alimony was invalid because it violated the constitutional provision forbidding imprisonment for debt. In Teefey v. Teefey, 533 S.W.2d 567 (Mo.1976) we held that contempt proceedings for failure to pay maintenance were civil and not criminal contempt and hence a party aggrieved by the judgment could obtain a review by appeal.

The cases mentioned were both filed under the provisions of Section 452.345. As indicated in Teefey we have the view that the court in this case could not base the judgment on Section 476.110 and find relator guilty of criminal contempt. We rule, however, that the trial courts have inherent authority to adjudicate civil contempt proceedings in cases such as the one before us.

Respondent’s counsel concedes that relator is not guilty of criminal contempt, as. found by the court, but states that he could properly be found guilty of civil contempt. He also concedes that in accordance with Rule 35.01(b) the notice given relator was not sufficient to support criminal contempt and suggests that the case be remanded for the entry of appropriate findings and judgment. This being prohibition rather than an appeal we cannot technically remand the case. We have decided, however, for the reason suggested and other reasons hereinafter discussed to quash the preliminary rule and give limited directions to the trial court as to further proceedings. Rule 97.07.

At the time the court of appeals issued the preliminary rule such appeared proper. By reason of the Coughlin case it then appeared that the respondent was intending to exceed his jurisdiction in finding relator guilty of contempt. However, we have now ruled that the trial courts have jurisdiction to adjudicate civil contempt proceedings under circumstances such as were presented in the case at bar. Moreover, in addition to relief by habeas corpus, we have ruled that such a judgment may be reviewed by appeal.

“Prohibition is no substitute for appeal nor is it a device to correct trial errors or rulings.” State ex rel. Schaper v. Stussie, 487 S.W.2d 49, 51 (Mo.App.1972). Furthermore, it has been properly said that, “Prohibition is to be used with great caution and forebearance and only in cases of extreme necessity and not to rule complaints of error which may be adequately reviewed on appeal.” Crackerneck Country Club, Inc. v. Sprinkel, 485 S.W.2d 652, 655 (Mo.App.1972). While, as we have said, the appeals court properly issued the preliminary rule, we have the view that in light of our subsequent decisions prohibition is not an appropriate remedy for review of contempt judgments relating to failure to pay maintenance.

When the respondent is hereby released from the restraint of the preliminary rule we direct that if Mrs. Spellerberg desires that further proceedings be had the court hold another hearing to determine relator’s present financial condition and the amount paid, if any, since the prior hearing. At the conclusion of that hearing the court should enter appropriate findings and judgment determining whether or not relator is guilty of civil contempt.

For the reasons heretofore indicated the provisional rule is quashed.

HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in result in separate opinion filed.

SEILER, C. J., and MORGAN, J., concur in separate opinion of BARDGETT, J.

BARDGETT, Judge

(concurring in result).

I concur in the result reached — quashing the preliminary rule in prohibition.

However, I do not believe the court should decide in this case whether the trial court has inherent power to adjudicate civil contempt in proceedings such as this. I say this because civil contempt in this type of matter is now provided by section 452.345 and, in my opinion, the proceedings should be governed by that statute. This statute, in my opinion, works a modification of that part of the holding in Coughlin v. Ehlert, 39 Mo. 285 (1866), wherein the court held in effect that the court could not utilize imprisonment on civil contempt to coerce payment of alimony. Subject to the views I have expressed in my dissent in State ex rel. Stanhope v. Pratt et al., 533 S.W.2d 567 (Mo. banc 1976), and Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), I concur in result.

      . All statutory references are to V.A.M.S.