Gothard v. SpradlingGothard v. Spradling
- Reporters:
- ,
- Before:
- Prewitt
Plaintiff appeals from a ruling of the trial court denying his petition to prevent the Director of Revenue from enforcing a one year revocation of his privilege of operating a motor vehicle for refusal to submit
On February 28, 1976, plaintiff was arrested in Stockton, Missouri and charged with operating a motor vehicle while intoxicated. On March 17, 1976, the Director of Revenue notified plaintiff that his privilege of operating a motor vehicle in Missouri would be revoked for one year, effective April 4, 1976, for refusal to submit to a chemical test as provided in
The sufficiency of the evidence to support the trial judge’s ruling is not questioned and no purpose would be served in setting forth the evidence. It was ample to support the Director of Revenue and the trial judge’s findings.
Plaintiff makes two contentions of error: (1) That the trial court erred in overruling plaintiff’s motion to declare defendant Director of Revenue in default for failure to file a responsive pleading; and (2) that the trial court erred in overruling plaintiff’s motion to dismiss the proceedings as moot. No brief was filed by defendants nor argument in their behalf.
For his first point, plaintiff argues that this is not an action under
Our belief that this petition was for review as provided in
The request and issuance of a stay or restraining order does not convert the petition from the statutory procedure to some other form of action. In
Bolling v. Schaffner,
488 S.W.2d 212, 216 (Mo.App. 1972) it was conceded that a cease and desist order could be issued pursuant to § 536.120 before a hearing as provided in
Rule 100.08, V.A.M.R., among other provisions, provides for review by injunction in uncontested cases. This right is limited to situations where “there is no other provision for judicial inquiry into or review of such decision”. This was an “uncontested case”, that is, a case where the officer acted without having a hearing or making a record. Kopper Kettle Restaurants, Inc. v. City of St. Robert, 439 S.W.2d 1, 4 (Mo.App.1969). As § 564.444 provides a method for review, Rule 100.08 has no application here.
Subsection 4 of § 564.444 provides that requests for review shall go to the head of the docket. If other methods of review are used the proceedings may be delayed and thwart the intentions of the legislature in removing persons who drive intoxicated from the roads and in promptly punishing them. We hold that the procedure set forth in § 564.444 is exclusive and requires no answer or responsive pleading. The issues are made up by the request for hearing and subsection 2 of that section which provides that the judge shall determine only: (1) whether or not the person was arrested; (2) whether or not the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition; and (3) whether or not the person refused to submit to the test.
Even if other remedies were available there would be no error in the court’s ruling. Plaintiff’s brief acknowledges that the record does not disclose service upon defendants. Mailing a copy of the petition to the prosecuting attorney would not be service upon defendants in ordinary actions. Such service is only valid i/pon an attorney of record. Rule 43.01(b), V.A.M.R. Service of initial process cannot ordinarily be made upon an attorney. McPike Drug Co. v. Wilson, 237 S.W. 1044 (Mo.App.1922); 7 Am.Jur.2d, Attorney at Law, § 120, p. 119. Also see Bradley v. Welch, 100 Mo. 258, 12 S.W. 911 (1890). A motion for defendants was filed by the prosecuting attorney some 110 days after plaintiff’s petition. The motion was denominated “Motion to dissolve restraining order and dismiss petition and application for restraining order”. It was never ruled upon. Even if the general Civil Rules had applied, plaintiff cannot complain of any default where defendants were not served and had a motion pending at the time plaintiff moved for judgment. Plaintiff’s first point is without merit and is denied.
Plaintiff secondly contends that the Director’s order of revocation expired while the matter was pending in the Circuit Court, and further proceedings would be moot. Plaintiff relies upon Pollard v. David, 421 S.W.2d 296 (Mo.1967) and Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273 (1942). Neither case has any application here. In Pollard there was no stay, and the revocation had been suffered. In Personal Finance Co. of Missouri the requirements of the contract were fulfilled by an injunction, that is, the employee was enjoined from entering into competing employment for a period of one year. Here the revocation was not started because of the court’s order. Other cases holding such proceedings moot are those where no stay or cease and desist order were issued. See Slusher v. Schaffner, 495 S.W.2d 135 (Mo.App.1973) and In Re Johnson, 440 S.W.2d 495 (Mo.App.1969).
Bolling v. Schaffner,
supra, 488 S.W.2d at 216 held that the trial court was warranted, where a stay had been granted, in making the revocation effective for one year from the date of judgment rather than the date of the Director’s revocation. In the present
“Hence, upon dissolution of that stay by this court, the Director of Revenue will be free to proceed with such revocation by the issuance of an order revoking appellant’s privilege of operating a motor vehicle in the State of Missouri for a period of one year from and after the effective date stated in the order.’’
The stay or restraining order did not eliminate the revocation, but merely delayed it. The matter was not moot and the Director of Revenue, following the court’s determination was authorized to set a new period of revocation.
The judgment is affirmed.
All concur.
Notes
. All references to statutes are to RSMo 1969.