Pollard v. Swenson

Citation411 S.W.2d 837
Decision Date06 February 1967
Docket NumberNo. 24621,24621
PartiesWilliam N. POLLARD, Appellant, v. H. R. SWENSON, Warden, Missouri State Penitentiary, Respondent.
CourtCourt of Appeal of Missouri (US)

William N. Pollard, pro se.

Norman H. Anderson, Atty, Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

CROSS, Judge.

William N. Pollard, an inmate of the Missouri State Penitentiary, brought this action against the warden of that institution by filing in the Circuit Court of Cole County a writing entitled 'Petition for Declaratory Judgment'. Plaintiff's petition is unskillfully drawn and contains considerable extraneous matter in the nature of argument and conclusions. Nonetheless, it contains allegations substantially to the effect that plaintiff is a prisoner confined in the penitentiary as the result of a criminal conviction; that he intends to file a post-conviction legal proceeding in the Supreme Court to challenge the validity of the judgment under which he is held as a prisoner; that the medical records of certain United States army hospitals pertain to plaintiff and his mental condition, and are essential to the preparation of his post-conviction proceeding; that pursuant to plaintiff's request by mail 'said records were issued by the United States Government' and mailed to plaintiff at the penitentiary but were intercepted by defendant warden and withheld from plaintiff; that the records referred to consist of '85 pages of photostatic copies of Army Records of William N. Pollard' and contain 'Enlistments, Discharges, Medical findings of several Boards and Officers'; that the warden and his agents and clerks are still holding possession of the documents in question, have refused plaintiff's numerous requests for their possession and will not allow him to make copies thereof or use them in preparing his intended legal proceeding, and, that 'he is entitled to review the records before seeking a review in the courts of Missouri' . From further allegations of the petition to the effect that prior to the trial at which plaintiff was convicted he underwent a mental examination by a court appointed physician, that such examination was perfunctory and was made under circumstances 'which were not favorable to such an examination to my prejudice', it is reasonably inferable that plaintiff intends to assert, as a ground for attacking the legality of his conviction and imprisonment, that he was denied the legal right to have a reasonably sufficient mental examination in connection with the defense of his case, and was thereby prejudiced, and that he desires to use the 'mental records' as evidence on that question. In concluding his petition plaintiff says 'this Honorable Court should issue a Writ of Quo Warranto against the respondant to present the petitioner's Mental Records, Documents in Court to be dealt with according to Law, and that said Records and Documents be ordered submitted to the petitioner hence forthwith'. He finally prays that 'this Court will order his relief sought herein granted and the petitioner's Mental Documents and Records to be properly restored and delivered to the petitioner so he may proceed to petition for relief of grievances from his prison imprisonment'. Attached to the petition was an 'Application for Subpoena Duces Tecum' asking that the warden be required to produce in court, for inspection therein and as evidence, 'all Mental Records and Documents' concerning plaintiff.

The defendant warden filed no responsive pleading, made no appearance in the cause, and stood in default when the trial court rendered its judgment, apparently without hearing or any appearances, as shown by the following quoted portion of the transcript: 'Thereafter, on September 21, 1965, the Court takes up and considers Petition for Declaratory Judgment and for Quo Warranto, together with Application for Subpoena Duces Tecum, and having considered said petitions and being fully advised in the premises, enters the following order on the docket: Application for subpoena duces tecum, for Declaratory Judgment and for Quo Warranto denied'. Plaintiff in proper time filed an appeal addressed to the Supreme Court. Thereafter that court determined it was without jurisdiction and transferred the cause to this court. Pollard v. Swenson, Mo., 403 S.W.2d 601.

We have no brief from plaintiff in conventional form. Defendant has filed a brief in response to which plaintiff has filed what he designates as a 'Reply Brief'. From the latter document and portions of plaintiff's petition labeled 'Arguments' and 'Conclusions' we understand plaintiff's contentions to be that he is entitled to inspect and 'to review the records' presently in the warden's possession, and further entitled to an order of court directing that official to deliver to him possession of the records. Our disposition of this appeal is governed by Civil Rule 73.01(d) V.A.M.R., by which we are required to review the case de novo upon both the law and the evidence and thereby reach our own conclusions. Wilber v. Wilber, Mo.Sup., 312 S.W.2d 86; 10A Mo. D., Declaratory Judgments, Key No. 393. However, our review necessarily will be confined to questions of law, since there is no evidence before us.

The trial court's judgment denying plaintiff any relief on his petition without hearing evidence thereon is tantamount to a ruling that the petition is insufficient as a claim for relief, and is in effect a dismissal of plaintiff's action. The propriety of such action depends upon whether the averments of the petition 'invoke substantive principles of law which entitle plaintiff to relief'. Wells v. Henry W. Kuhs Realty Company, Mo.Sup., 269 S.W.2d 761, 47 A.L.R.2d 1038. To that question we now direct attention and proceed to examine the petition, particularly from the standpoint of whether its averments are sufficient to entitle plaintiff to declaratory relief. Here noted are certain principles applicable to the question: The declaratory judgments statutes are remedial in their nature. Their purpose is to afford relief from uncertainty and insecurity and such statutes are to be liberally construed. Rowland v. City of St. Louis, Mo.App., 327 S.W.2d 505; Section 527.120 V.A.M.S. A declaratory judgment action is a particularly appropriate method for determining the powers and duties of the various governmental agencies, but in such cases the court must be presented with a justiciable controversy appropriate for judicial determination. City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411. A petition for a declaratory judgment must present a real and substantial controversy admitting of specific relief as distinguished from an advisory decree upon a hypothetical state of facts. Transport Manufacturing and Equipment Co. v. Toberman, Mo.Sup., 301 S.W.2d 801. In determining the sufficiency of a petition to state a claim for declaratory relief, the question is not whether the petition shows that plaintiff is entitled to a declaration in accordance with the theory he states, but rather,...

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11 cases
  • Higday v. Nickolaus
    • United States
    • Missouri Court of Appeals
    • June 7, 1971
    ...whether the averments of the petition "invoke substantial principles of law which entitled plaintiff(s) to relief". Pollard v. Swenson, Mo.App., 411 S.W.2d 837, 840(4). These substantial principles of law require that a petition invoking declaratory relief allege a state of facts which show......
  • Ferguson Police Officers Ass'n v. City of Ferguson, 46696
    • United States
    • Missouri Court of Appeals
    • April 17, 1984
    ...and other legal relations; and [it] is to be liberally construed and administered." § 527.120, RSMo 1978; see also Pollard v. Swenson, 411 S.W.2d 837, 841 (Mo.App.1967). The broad remedy afforded by the Declaratory Judgment Act, however, does not eliminate the necessity of a justiciable con......
  • Rebel v. Big Tarkio Drainage Dist. of Holt City
    • United States
    • Missouri Court of Appeals
    • July 8, 1980
    ...for substantive law which entitle the pleader to relief, the petition stands as a valid statement of claim. Pollard v. Swenson, 411 S.W.2d 837, 840(4) (Mo.App.1967). Where the allegations plead alternative relief, the sufficiency of one statement as a valid claim for relief remains unaffect......
  • Vorbeck v. McNeal, 38674
    • United States
    • Missouri Court of Appeals
    • October 25, 1977
    ...on whether the allegations in the petition " 'invoke substantive principles of law which entitle plaintiff to relief.' " Pollard v. Swenson, 411 S.W.2d 837 (Mo.App.1967). "These substantial principles of law require that a petition invoking declaratory relief allege a state of facts which s......
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