Summary
In Koeller v. Director of Revenue, 782 S.W.2d 652 at 653 (Mo.App., E.D. 1989), this court dismissed an appeal by the Director of Revenue who sought review of the trial court's grant of hardship privileges.
Summary of this case from Wise v. Director of RevenueOpinion
No. 56314.
October 24, 1989. Motion for Rehearing and/or Transfer to Supreme Court Denied November 28, 1989. Application to Transfer Denied February 13, 1990.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, LARRY L. KENDRICK, J.
William L. Webster, Atty. Gen., Jatha B. Sadowski, Sp. Asst. Atty. Gen., Jefferson City, for respondent-appellant.
Ben N. Messina, St. Louis, for petitioner-respondent.
Petitioner filed an ex parte application for limited driving privileges pursuant to § 302.309.3, RSMo 1986. The circuit court approved the application; Director appeals.
Although Director was named in the caption of the application, there is no indication in the record that Director was served with a copy of the application, that Director filed an answer, or that Director entered an appearance. In any event, proceedings under § 302.309.3 are ex parte.
The disposition of this case is governed by Manner v. Director of Revenue, 762 S.W.2d 881 (Mo.App. 1989). "Because Director was not a party in the court below, he has no right to appeal the court's order, and we are without jurisdiction." Id. at 882.
In Manner, we quoted the following language from Robinson v. Director of Revenue, 762 S.W.2d 872, 874 (Mo.App. 1989): "[I]t would seem that Director should also be a party to actions in which the driver is seeking hardship driving privileges. It is axiomatic that there should be some representation by the State in a proceeding related to the granting of a hardship license to ensure statutory compliance." We then noted, "However, § 302.309.3 provides for an ex parte proceeding, and does not provide for notice to the director. We are constrained under this section to dismiss the appeal, and we note that if the procedures governing hardship driving privileges are to be changed, it is a matter to be determined by the legislature."
Director has referred us to a recent Southern District case, Higgins v. Director of Revenue, No. 16296 (Mo.App. Oct. 16, 1989), which he contends supports his position on the merits of this appeal. We note that in Higgins, the Director filed a motion to intervene and the trial court granted the motion. No such motion appears in the record presented to us in this case.
Appeal dismissed.