State upon Information of Reardon v. Mueller, 31924

Decision Date19 January 1965
Docket NumberNo. 31924,31924
Citation388 S.W.2d 53
PartiesSTATE of Missouri upon the information of Daniel P. REARDON, Jr., Circuit Attorney of the City of St. Louis, (Plaintiff) Respondent, v. A. Barney MUELLER, (Defendant) Appellant.
CourtMissouri Court of Appeals

Thompson, Walther & Shewmaker, Richard D. Shewmaker, John Gianoulakis, St. Louis, for appellant.

Daniel P. Reardon, Jr., Circuit Atty., Michael M. Flavin, Asst. Circuit Atty., for respondent.

L. F. COTTEY, Special Judge.

The State of Missouri challenges the right of A. Barney Mueller to hold the office of Alderman of the Twenty-First Ward in the City of St. Louis, to which he was elected for a third consecutive term in 1961. The action is based on Article IV, Section 2, of the City Charter, reading in pertinent part as follows:

'No person shall become an Alderman except he be * * * a resident of the ward from which elected * * * and if any Alderman * * * shall at any time not be a resident of such ward, he shall thereby forfeit his office * * *.'

The information charges that Mr. Mueller has forfeited his office by reason of the fact that he is not, and for some time prior to his last election has not been, a resident of the Twenty-First Ward, but has actually resided during all that time in the First Ward of the city. By his answer Mr. Mueller concedes that at all times mentioned in the information he 'has maintained a dwelling place for his family, including himself, at 1632 Veronica Avenue' in the First Ward, but he avers that it is not his legal residence and specifically denies that he is not a bona fide resident of the Twenty-First Ward. After the pleadings were made up, Mr. Mueller's deposition was taken. The Circuit Attorney, upon whose information the action was instituted, thereupon moved for summary judgment on the ground that all of the material facts pleaded in the information had been confessed, either by the answer or by the deposition, so that no 'genuine issue' remained to be litigated; consequently, 'that the plaintiff is by unassailable proof entitled to judgment as a matter of law' under Supreme Court Rule 74.04, V.A.M.R. Mr. Mueller responded by affidavit, as the Rule requires, and the record as thus completed establishes the following facts.

At some undisclosed date prior to his latest election Mr. Mueller and his wife bought a residence property at 1632 Veronica Avenue, in the First Ward. It is 'a normal family dwelling,' and was acquired by them as a place 'to raise our family.' He and his wife and their three children have ever since 'been housed' there. This is the house which is used by the family 'as their normal spot of dwelling;' they eat and sleep there. Mr. Mueller is not separated from his wife; on the contrary he leads a 'normal life as husband and father,' and, in that connection, 'provides a home for his wife and children' at the Veronica Avenue address. That is the place where his 'family dwells;' that is the place where his own 'home life is conducted.' Mr. Mueller's duties oblige him to be absent from that dwelling during the usual hours of each working day, but his normal practice is to return there for his evening meal, spend the night there except on very rare occasions, and take his breakfast there. During all the time with which we are concerned he has 'lived a normal family life at 1632 Veronica.'

Mr. Mueller insists, however, that he considers his 'legal residence' to be at 3801a Lee Avenue, in the Twenty-First Ward. At that address there is a three story brick business building in which, some sixty-five years ago, Mr. Mueller's father established a retail drug business which occupied the ground floor. At that time the elder Mr. Mueller and his family lived upstairs; but many years ago they moved to a house across the street where he and his wife afterwards died. Since that time the house has not been occupied by any member of the family. The drug store, however, has remained at its original location and is currently operated by Mr. Mueller's brothers, Cornelius and John, and his sister, Mrs. Steck, who lease the entire building from its present owner. The two upper floors of the building are used principally for the storage of merchandise and supplies used in the drug store. Mr. Mueller occasionally 'helps out' as a clerk in the drug store, but he has no financial interest in the business. For an undisclosed length of time his brothers and sister have allowed him to use three rooms on the second floor of the building as 'an apartment that is capable of being inhabited by a person or family.' The apartment is reached by a stairway that is accessible both from the drug store premises and from an outside entrance on Prairie Avenue. At the head of the stairs there is a toilet, apparently the only one in the building, and adjoining it is a washroom containing a lavatory, but no other facilities so far as the record discloses. Down the hall are Mr. Mueller's 'living room and bedroom fully furnished;' the third room of his suite is 'half-way furnished,' the remaining space in it being used for the storage of drug supplies. His living room is the room in which he was born during the years his parents lived there. He pays no rent for these quarters. He keeps some clothes in the apartment and some shaving equipment, but he has only spent 'about eight' nights there during the past year. On some of those occasions his family was out of town; on others they were at the Veronica Avenue residence. At no time have any members of his family shared the apartment with him. It 'is extraordinary' for him 'to spend the evening' there. If facilities for cooking exist, it seems they are never used; food is 'brought in' whenever needed. Mr. Mueller filed his candidacy from this address and both he and his wife are 'registered to vote from' it. So, also, are his two brothers, although admittedly 'they don't use it as a place to reside.' It is generally known as 'the Twenty-First Ward Democratic Headquarters' when Mr. Mueller is conducting a campaign.

On 'a normal working day' it has been Mr. Mueller's practice to arise at his Veronica Avenue residence at 7:30 in the morning, eat breakfast there, and then drive down to the drug store. It is 'only about seven to ten minutes drive.' He arrives 'about ten o'clock.' There he looks over his mail at a desk he uses in the drug store and makes such telephone calls as are necessary in his business, using the drug store phone; there is neither desk nor phone in his apartment. He confers with his constituents in the drug store until about noon. If the subject under discussion is of a confidential nature, he takes his callers up to his apartment for the conference. After lunch he usually drives to the office of a realtor with whom he is associated and attends to such business as awaits him there. Later in the afternoon he ordinarily makes a call at City Hall to attend to such matters as have been referred to him by his constituents, and then returns to the drug store because, 'The people know that that's where they can reach me in the day at four o'clock unless I have some other business.' At 5:30 or thereabouts he goes back to his Veronica Avenue residence for dinner and to spend the evening. Sometimes he is called back to the drug store to confer with a constituent, or just to help his brothers with the trade there, but eventually he returns to the Veronica Avenue dwelling for the night.

In his affidavit Mr. Mueller said, 'I intend my living quarters, or apartment, at 3801a Lee Avenue to be my residence. I have intended it to be my residence during my entire present term as alderman and before that.' By way of explanation he added, 'I have two homes, my apartment at 3801a Lee Avenue and my house at 1632 Veronica,' but 'the one which I consider my residence is 3801a Lee Avenue.'

Upon that record the trial court sustained plaintiff's motion for summary judgment. Mr. Mueller has appealed, contending that the record does not establish his non-residence in the Twenty-First Ward as a matter of law, but, on the contrary, raises a 'genuine issue' as to that fact. 'Our duty is the equivalent of reviewing a court tried or equity case, and eventually of resolving the question of the sufficiency of the evidence to support the summary judgment and finally, if necessary, of entering such judgment as the trial court ought to have given.' Brown v. Prudential Ins. Co. of America, Mo.App., 375 S.W.2d 623, 628; Swink v. Swink, Mo., 367 S.W.2d 575, 578; Landers v. Smith, Mo.App., 379 S.W.2d 884, 886. 'As said in many cases the question of the sufficiency of the evidence raises an issue of law and if under the evidence adduced the court would be compelled to direct a verdict for any of the parties, then said party is entitled to a summary judgment.' Brown v. Prudential Ins. Co. of America, supra (375 S.W.2d 1. c. 629.)

The last cited case, incidentally, dealt with a complaint by the appellant that the entry of summary judgment against him deprived him of the benefit of some is not presently a resident of the Twenty-First but, for some reason, did not. Counsel for Mr. Mueller make the same complaint here, and this seems an appropriate time to dispose of it. They say, 'We were not called upon and did not purport by affidavit or otherwise to put in all the evidence that might convince the court on a full trial that the allegation that Mr. Mueller is nto presently a resident of the Twenty-First Ward cannot be sustained.' If true, the omission was unfortunate; but it can scarcely be ascribed to lack of warning. Rule 74.04 expressly provides that the party resisting a motion for summary judgment must come forward with 'specific facts showing that there is a genuine issue for trial.' 'This is the duty imposed upon an adverse party to one moving for a summary judgment.' Brown v....

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