McIntyre v. David, 53178

• Decision Date: 09 September 1968
• Docket Number: No. 2,No. 53178,53178,2
• Citation: McIntyre v. David, 431 S.W.2d 216 (Mo. 1968)
• Parties: James Jay McINTYRE, Plaintiff-Respondent, v. Thomas A. DAVID, Director of Revenue, State of Missouri, Defendant-Appellant
• Court: Missouri Supreme Court

Page 216

431 S.W.2d 216

James Jay McINTYRE, Plaintiff-Respondent, v.Thomas A. DAVID, Director of Revenue, State of MissouriDefendant-Appellant.

No. 53178.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1968.

D. Lee McMaster, Kansas City, for respondent.

Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for appellant.

GEORGE P. ADAMS, Special Judge.

This is an appeal from an order of the Circuit Court of Jackson County, Missouri, wherein defendant-appellant was 'permanently enjoined and restrained from enforcing' his order revoling plaintiff-respondent's driving privilege.

At an undisclosed date prior to March 31, 1967, defendant received a notice certified by the Clerk of the Municipal Court, San Diego Judicial District, San Diego, California, that on January 11, 1967, plaintiff had been convicted of violating Section 23102(a), 'Sec. 23102--Driving While Under the Influence of Intoxicating Liquor', and had been sentenced to '90 days $250--'.

On March 31, 1967, defendant notified plaintiff that his driving privilege had been revoked for 365 days, effective April 17, 1967, based on the assessment of 12 points for an out of state conviction of driving while in an intoxicated condition in violation of a state law.

On April 17, 1967, plaintiff filed a 'Petition for Review' in the Jackson County Circuit Court as authorized by Section 302.311(all constitutional and statutory references, unless otherwise noted, are to V.A.M.S.)

The trial court ordered a temporary reinstatement of plaintiff's license and ordered defendant to show cause why plaintiff's driving privileges should not be 'fully reinstated on a permanent basis, or in the alternative why this order should not be made permanent and plaintiff's driving privileges be reinstated on a limited basis'.

Upon a hearing defendant offered what the 'Supervisor--Operator and Chauffeur License Registration, Department of Revenue' certified were 'true and authentic records' of the Department 'regarding revocation of driving privilege and records in the name of James Jay McIntyre'.The exhibit was apparently admitted in evidence over plaintiff's objection.

Plaintiff offered himself as a witness and testified that on January 8, 1967, he was involved in an accident in San Diego, California; that as the result of the accident he was charged with driving under the influence of intoxicating liquor; that he appeared in the Municipal Court in San Diego; that he entered a plea of guilty to the charge and was convicted; that he was fined $289.00'; and that he received a suspended sentence.

The trial court's order was dated May 12, 1967.Defendant's motion for new trial was overruled June 23, 1967.The notice of appeal stated that defendant appealed from 'the judgment and order entered in this action on the 23rd day of June, 1967'.

We have jurisdiction because defendant is a 'state officer' and 'as such is a party' to this action.Article V, Section 3, Missouri Constitution V.A.M.S.;Wilson v. Morris, Mo., 369 S.W.2d 402, 405(1, 2).

Plaintiff has filed a motion to dismiss this appeal for the reason that defendant's notice of appeal stated that the appeal was taken from the trial court's action in overruling the motion for a new trial, an unappealable order, rather than the judgment entered on May 12, 1967.While the appeal should have been taken from the judgment rendered May 12th and not from the order overruling the motion for a new trial, Rule 82.04, V.A.M.R., it is quite apparent that defendant seeks a review and reversal of the trial court's action in setting aside defendant's order revoking plaintiff's driving privileges.We shall consider that defendant'intended and in good faith attempted to appeal from a final judgment and that the notice of appeal inadvertently designated the overruling of the motion for new trial instead of the judgment' of the court, 'as the order from which the appeal was intended to be taken, and it will be so treated'.Triller et al. v. Hellwege, Mo., 374 S.W.2d 104, 105(1).

Plaintiff supports the trial court's action asserting that defendant submitted no 'competent evidence' of a conviction of 'an offense, which, if committed in Missouri, would warrant suspension' of his license.

When the notice of his conviction in California was offered as one of several 'exhibits' attached to the certificate of the Supervisior of the Operator and Chauffer License Registration unit of the Department of Revenue, plaintiff made a 'motion' objecting to its consideration because it was 'hearsay' and not the 'best evidence'.

It is difficult to understand whether plaintiff was objecting to its admission because there was no proper showing that it was a part of the files of the Department of Revenue(cf.State v. Ferrara, Mo., 320 S.W.2d 540, 546(3)), or whether his objection was that the purported 'notice' was not sufficient as a 'notice of a conviction in another state, within the meaning of Section 202.160, and was, therefore, hearsay.

It is not necessary to and we, therefore, do not decide whether either objection is valid.First, at the time the exhibit containing the notice was offered, plaintiff's counsel in effect conceded that the notice was the 'notice' received by defendant from California, stating, in support of his objection that it was hearsay, 'I think that this is the notice received or reportedly received by the Department of Internal(sic) Revenue that resulted in the notice of revocation to Mr. McIntyre.', and 'This revocation arises out of a municipal court conviction in the State of California last January, and notice was forwarded--correct me if I am wrong, sir,--notice was forwarded purportedly to the Director of Internal (sic) Revenue, and based on this notice of the municipal court in and for the City and County of San Diego the license revocation resulted', and, 'the purported notice forwarded to the Director of Internal (sic) Revenue * * *'.(Emphasis in quotations supplied.)Plaintiff's counsel, by conceding it was the notice received by defendant and upon which he acted cured any objection that it was not the best evidence.

Second, plaintiff later voluntarily took the witness stand and testified that he had, in fact, been convicted of the offense designated in the notice.Plaintiff's own testimony showed that the contents of the notice were true and accurate and cured any objection that it was hearsay.The notice was properly considered by the trial court.

Plaintiff asserts that defendant cannot take advantage of plaintiff's trial testimony 'to make his case', and cites Fisher v. Gunn, Mo., 270 S.W.2d 869.He does not point out wherein that case supports his position.We are unable to find that it does.

While the notice does not specifically designate the section violated, 23102(a), as a California state statute there can be no doubt that it is Section 23102(a), West's Annotated California Vehicle Code.The section number of the vehicle code and the offense are identical.The punishment assessed was within the range prescribed by the statute.If there was a San Diego City or County ordinance or law corresponding identically with such section number and subject matter, it would be a most unusual coincidence.

The real contention between the parties is whether plaintiff's California conviction was such a conviction 'which, if committed in this state, would result in the assessment of twelve points'.Section 302.160.That, in turn, depends on whether it was a conviction of 'driving while in an intoxicated condition' in 'violation of state law'.Section 302.302, subd. 1(7).If so, defendant properly assessed the twelve points and revoked plaintiff's operating privileges.Sections 302.160and302.304(3).

Article 6, Section 5 of the California Constitution(West's Annotated California Codes, Volume 2, 1967 Cumulative PocketParts, page 12) directs the division of counties into Municipal Court districts and authorizes the legislature to provide for the organization and 'prescribe the jurisdiction of municipal courts'.

Section 1462 of the California Penal Code(West's Annotated California Codes, volume 51, page 46) provides: 'Each municipal court shall have jurisdiction in all criminal cases amounting to misdemeanor'(with certain exceptions not relevant here).Application of Joiner, 180 Cal.App.2d 250, 4 Cal.Rptr. 667, 670(4);People v....