State ex rel. Taylor v. Clymer

• Decision Date: 03 December 1973
• Docket Number: No. KCD,KCD
• Citation: 503 S.W.2d 53
• Parties: STATE of Missouri ex rel. Minerva TAYLOR and Greta Louise Randall, Relators, v. Honorable Lewis W. CLYMER, Judge Juvenile and Domestic Relations Division 'B', Sixteenth Judicial Circuit, and Bruce R. Watkins, Clerk Sixteenth Judicial Circuit, Respondents. 26646.
• Court: Missouri Court of Appeals

Page 53

503 S.W.2d 53

STATE of Missouri ex rel. Minerva TAYLOR and Greta Louise Randall, Relators, v. Honorable Lewis W. CLYMER, Judge Juvenile and Domestic Relations Division 'B', Sixteenth Judicial Circuit, and Bruce R. Watkins, Clerk Sixteenth Judicial Circuit, Respondents.

No. KCD 26646.

Missouri Court of Appeals, Kansas City District.

Dec. 3, 1973.

Dennis D. Palmer, Michael Thompson, James L. Muller, The Legal Aid and Defender

Society of Greater Kansas City, Inc., Kansas City, for relators.

Harold L. Fridkin, County Counselor, W. Dudley Leonard, Associate Counselor, Independence, for respondents.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, WASSERSTROM, and SOMERVILLE, JJ.

DIXON, Chief Judge.

By mandamus, relators seek a writ commanding respondent circuit court judge to issue an order to respondent circuit clerk directing the clerk to pay the cost of publication of notice necessary to effect service upon admittedly non-resident spouses, or, in the alternative, ordering the posting of notice to the spouses as appropriate service. We issued our alternative writ and from the petition, return, suggestions, and exhibits thereto, the facts and occurrences appear undisputed.

Relators have each instituted an action for divorce. In each case relators presented their petitions to the trial judge along with applications for an order of the court permitting them to prosecute their actions as poor persons. Relators' divorce petitions allege that they do not know the whereabouts of their respective husbands, defendants in said petitions, and further that the defendants be served by publication as authorized by Section 506.160 RSMo 1969, V.A.M.S.

Respondent judge determined that relators were in fact unable to pay court costs and, entered an order pursuant to § 514.040, RSMo 1969, V.A.M.S., that the plaintiffs could proceed as 'poor persons' under that statute.

Respondent clerk refused issuance of an order of publication upon the defendants in relators' divorce actions. Subsequent to this refusal, relators each filed with respondent judge a Motion for Payment of Publication Costs or for Posting in Lieu of Publication. These motions alleged relators' inability to pay the $35 cost of publication and sought an order directing the State of Missouri to pay said costs, or in the alternative, an order directing service of process by registered mail at defendants' last known address and by the posting of appropriate notice.

Respondent judge entered orders denying said motions, observing that although the holding in BODDIE V. CONNECTICUT, 401 U.S. 371, 91 S.CT. 780, 28 L.ED.2D 113 (1971)¹, would seem to require sustaining relators' motions, '(i)t is uncertain from where the funds would come to implement a program of paying for the publication costs of indigent litigants.' Citing the 'wide spread ramifications' that would result if said motions were sustained, respondent judge stated that he 'felt that the decision to require the State to pay publication costs should come from higher authority.' As a result of this decision denying said motions relators were prevented from litigating their claims for divorce.

The central issue before this court involves the right of the indigent relators to the issuance of an order of publication necessary to obtain service on their respective husbands. The relief sought against the judge requests his order directing the clerk to issue an order of publication and to provide for its publication. The first determination that must be made is whether the order of publication should issue. The question of payment for the publication is a separate issue.

Respondents argue that the relators must pay the cost of the publication prior to the issuance of the order of publication relying on Sec. 493.010 RSMo 1969, V.A.M.S., which provides:

'When any notice or advertisement relating to any cause, matter or thing in any court of record shall be required by law or the order of any court to be published, the same, when duly published, shall be paid for by the party at whose instance it was published, which payment, or so much thereof as shall be deemed reasonable, may be taxed as other costs, or otherwise allowed by the proper courts, in the course of the proceedings to which such advertisement relates.'

Upon this language and its plain unequivocal meaning, we conclude that the plaintiffs have a clear legal right to the issuance and publication of the order of publication necessary to effect service upon their absent spouses.

There can be no question but that in the ordinary case the party requesting service by publication is obligated to pay for such publication. The statute does not require payment prior to publication. In fact, it expressly makes payment contingent upon publication. We have been unable to find any authority for the clerk to withhold publication until payment has been made. No rule of the 16th Circuit requires any deposit except the $45.00 filing fee required by Rule 2(1) and (2), Rules of the 16th Judicial Circuit of Missouri as amended and adopted July 15, 1973. Subsection (4) of that same rule expressly provides that the deposits under (1) and (2) are waived when an order is made permitting the plaintiff to proceed as a poor person.

There may be some custom or usage that the Clerk requires a deposit upon issuance of an order of publication. There may be other Circuits which have rules requiring such a deposit and we do not in this opinion reach or decide the validity of such customs or rules in the ordinary case.

The question that is really posed is whether the payment of publication costs is required when plaintiffs have been permitted to proceed as 'poor persons'.

Section 514.040 RSMo 1969, V.A.M.S., provides:

'If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.'

The cost of publication is not specifically mentioned in this statute. However, the statute states the 'poor person shall have all necessary process and proceedings . . . without fees, tax or charge.' Although this phrase is very general in meaning, Missouri law requires that the words and phrases of a statute should be 'taken in their plain or ordinary and usual sense.' Section 1.090 RSMo 1969, V.A.M.S. To decide the issue before this court, we construe Section 514.040 according to the applicable rules of statutory construction. We may consider the policy, purpose and language in the totality of the statute and 'construe it in light of 'what is below the surface of the words and yet fairly a part of them. '' State ex rel. inf. Kamp v. Pretended Consolidated School Dist. No. 1 of Montgomery County, 359 Mo. 639, 645, 223 S.W.2d 484,...