66 F.2d 256 (1933)
SHEARMAN
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 293.
Circuit Court of Appeals, Second Circuit.
July 7, 1933.
*257 Valentine B. Havens, of New York City (Chas. B. McInnis and Mortimer S. Edelstein, both of New York City, of counsel), for petitioner.
Sewall Key and Morton K. Rothschild, Sp. Assts. to Atty. Gen. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Vernon F. Weekley, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge (after stating the facts as above).
Of course, when a statute speaks in language which leaves no doubt of the intent of Congress, contemporaneous administrative construction, if contrary to the terms of the statute, is merely erroneous, and has no effect except to call for correction. It cannot be relied upon as an accepted interpretation of the law. The Swift & Courtney & Beecher Company v. United States, 105 U. S. 691, 26 L. Ed. 1108; Iselin v. United States, 270 U. S. 245, 46 S. Ct. 248, 70 L. Ed. 566. The petitioner argues with force that is recognized that, when Congress used the words "for the taxable year in which received by the taxpayer," actual and not constructive receipt was meant. The Revenue Act of 1921, under which the Bingham Case (C. C. A.) 35 F.(2d) 503, hereafter referred to was decided, provided in section 201 (e), 42 Stat. 229, that such dividends as these should be included in gross income by the distributees "as of the date when the cash or other property is unqualifiedly made subject to their demands." Under that statute such regulations as are relied upon now would clearly have reflected the intent of the lawmakers. In the 1924 act (26 USCA § 954 and note), the language became, and it remained in the 1926 act (26 USCA § 954), substantially the same as that used in the 1928 act (section 115 [26 USCA § 2042]). The regulations requiring the inclusion of such dividends as these in the taxable period in which they were unqualifiedly made subject to the demands of the person entitled to receive them were included in every series of regulations promulgated from 1918 to the passage of the 1928 act. Indeed, they have been so included ever since, though the period subsequent to the 1928 act is now of no moment. T. R. 45, art. 54; T. R. 62, art. 53; T. R. 65 and 69, art. 52; T. R. 77, art. 333. In deciding whether Congress meant after the 1924 act that only dividends actually received were to be included in any taxable period or whether it was intended that the theory of constructive receipt was thereafter to prevail, the retention in subsequent acts without material change of the provision construed by the administrative department to mean constructive receipt persuasively indicates that Congress approved the interpretation. Brewster v. Gage, 280 U. S. 327, 337, 50 S. Ct. 115, 74 L. Ed. 457; Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 307, 308, 51 S. Ct. 418, 75 L. Ed. 1049; Murphy Oil Co. v. Burnet, 287 U. S. 299, 307, 53 S. Ct. 161, 77 *258 L. Ed. 318; Burnet v. Brooks, 288 U. S. 378, 392, 393, 53 S. Ct. 457, 77 L. Ed. 844; United States v. Dakota-Montana Oil Co., 288 U. S. 459, 466, 53 S. Ct. 435, 77 L. Ed. 893. Added assurance that Congress did not intend to change the requirement that dividends unqualifiedly made subject to the taxpayer's demands were to be included in the return for the period within which they were made so is found in the reports of the committees when section 201 (e) of the Act of 1921 was omitted from the Act of 1924. H. Rep. 179, 68th Cong. 1st Sess. pp. 12, 20, 21; S. Rep. 398 68th Cong. 1st Sess. p. 23; H. Conf. Rep. 844, 68th Cong. 1st. Sess. pp. 16, 17. These reports clearly show that the administrative practice was considered to be well settled and to be in accord with the statute as re-enacted. With such persuasive evidence of the intent of Congress, we hold that T. R. 74, arts. 333 and 621 are valid.
These dividends should therefore have been included in the petitioner's 1928 return if they were unqualifiedly made subject to her demands during that year. They were not payable by checks to be mailed as were the dividends considered in Commissioner v. Adams (C. C. A.) 54 F.(2d) 228, and perhaps that case differs from this in that the taxpayer was there entitled to receive the dividends only at such time as checks mailed were delivered. Here the time when the taxpayer was entitled to receive the dividends was definitely fixed by the resolution to be at the close of business on a day within the 1928 taxable period. The moment when the taxpayer was entitled to the use and benefit of them without qualification was not, as in the Adams Case, only after the time necessary for transmission of checks by mail had expired. This being so, the taxpayer was bound to return them as income in her return for 1928. Commissioner v. Bingham (C. C. A.) 35 F.(2d) 503.
Affirmed.


159 N.W.2d 441 (1968)
In the Matter of the ESTATE of Ida MILLERS, Deceased.
No. 52930.
Supreme Court of Iowa.
June 11, 1968.
*442 F. A. Royal, Des Moines, for appellant, Eva Tambek (Sepp).
John Paul Jones, Des Moines, for appellee, Andris Millers.
MOORE, Justice.
Ida Millers, a widowed alien, resident of Des Moines and former resident and citizen of Estonia, died testate February 2, 1965. She left surviving as her sole lineal descendant Andris Millers, her son. Andris, also an alien, had been sharing an apartment with his mother in Des Moines since 1961.
By her will, admitted to probate March 18, 1965 in Polk County, Ida directed that all her property, both real and personal, descend to her sister, Armilde Tambek of Nomme, Estonia, or in event she should predecease testatrix, to Armilde's daughter Eva Tambek-Sepp, who is now married and living in Estonia. Armilde Tambek died March 25, 1958.
Andris' attorney by letters dated February 25, and April 2, 1965 informed the surviving niece, Eva, of her aunt's death and the provisions of the will. She was advised it was questionable under Iowa law whether she was entitled to the personal property in the estate. As we shall point out infra the question existed because of the provisions of our Code section 567.8. The second letter did, however, express a willingness to cooperate in aiding her acquisition of some real property in Latvia ostensibly owned by decedent. Thereafter Eva employed New York attorneys who were immediately assured by Andris' attorney of his willingness to cooperate in presenting construction of the will to the court. This spirit of cooperation was not displayed by the New York attorneys. Their dilatory tactics resulted in much delay in bringing the question to issue.
Based on the executor's final report, filed October 15, 1965 the fiscal affairs of the estate were concluded without objection except for determination of entitlement to the residuum and possible inheritance tax liability. On October 29, 1965 Andris filed application for construction of the will asserting his claim to the residuum and a temporary executor was appointed. After much delay caused by the New York attorneys, including withdrawal of local counsel and employment of Mr. Royal, Eva's new Des Moines attorney, construction of the will was finally submitted to the trial court in January, 1967.
The trial court on April 13, 1967 filed his findings of fact, conclusions of law and a decree and judgment. The court awarded the personal property in the estate to Andris. This holding was based on two factors, (1) the nonresident alien Eva failed to carry the burden of proof required of her under Code section 567.8 and (2) entry of default against Eva nunc pro tunc from December 16, 1966.
Our review is de novo. Rule 334, Rules of Civil Procedure. We are unable to reach the same conclusion on either ground as found by the trial court and after a review of the entire record find a reversal must be ordered.
I. Section 567.8, Code, 1962, 1966 as pertinent here provides: "(1) The right of aliens not residing within the United States or its territories * * * to take personal property in this state by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal *443 right upon the part of citizens of the United States to take personal property upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are residents.
"(2) The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal right set forth in subsection 1."
The trial court placed considerable emphasis on the words "reciprocal right", expressly holding such a "right" is incapable of establishment in the absence of a formal treaty agreement between the respective countries encompassing reciprocal inheritance rights. The record shows without dispute no such treaty existed.
The obvious result of the trial court's holding would be the absolute frustration of the testamentary intent of an Iowa resident desirous of devising property to residents of a country with which the United States had not entered a written treaty agreement. Such result would necessarily obtain regardless of incontrovertible evidence conclusively establishing a presently existing course of conduct tantamount to reciprocity of inheritance rights between two countries. Although we agree with appellee treaty provisions specifically governing inheritance rights would be highly persuasive, if not conclusive, evidence of a "reciprocal right" as contemplated under section 567.8 we do not believe the legislature intended to so restrict the capacity of our citizens to dispose of their property by testamentary devise.
The primary rule in construing a statute is to ascertain and give effect to the intention of the legislature and we are required to interpret the language fairly and sensibly in accordance with the plain meaning of the words used by the legislature. In re Estate of Klug, 251 Iowa 1128, 1131, 1132, 104 N.W.2d 600, 602, 603, and citations.
82 C.J.S. Statutes § 321, states: "The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute." Similar statements are made in 50 Am.Jur., Statutes, section 223.
Section 4.2 with reference to our Code provides: "Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice."
Section 567.8 does not refer to treaties. We can nowhere discern in its wording any mandate requiring us to hold reciprocal rights include only those established by treaty. It is readily apparent such an interpretation to a large extent would render meaningless the statute's purpose which is obviously to allow a nonresident alien to inherit when both the law of his country, and the practice under that law, permit American citizens to inherit under the same circumstances as a citizen of that country.
Appellee's contention proof of a treaty is necessary under section 567.8 presents a question of first impression before this court. It has, however, been decided contrary to appellee's position by the California court. California has a statute (section 259) identical to section 567.8. In regard thereto the court in In re Knutzen's Estate, 31 Cal.2d 573, 191 P.2d 747, 751, 752, says: "The statute, however, does not refer to treaties, and there is nothing in its wording which requires the construction that `reciprocal rights' include only those established by treaty. Such a construction would defeat the obvious purpose of the statute which was to permit a nonresident alien to inherit when the laws of his country would permit an American citizen to inherit under the same circumstances. Evidence of the foreign domestic law is therefore admissible to prove the existence of reciprocal inheritance rights. Cf. Estate of Blak, 65 Cal.App.2d 232, 236, 150 P.2d 567; In re Nielsen's Estate [118 Mont. 304], 165 P.2d 792." See also In re Bevilacqua's Estate, 31 Cal.2d 580, 191 P.2d *444 752; In re Estate of Larkin, 65 Cal.2d 60, 52 Cal.Rptr. 441, 416 P.2d 473; In re Estate of Chichernea, 66 Cal.2d 83, 57 Cal. Rptr. 135, 424 P.2d 687, in which nonresident aliens were allowed to inherit without proof of a treaty. We believe the holding of the California court is sound.
II. We have carefully examined the record and exhibits certified to us and conclude appellant did meet the burden of proof imposed upon her by section 567.8(2).
Appellant's case depends largely upon the answers to written interrogatories and cross-interrogatories propounded to Professor Harold J. Berman of the Harvard Law School. They were taken in evidence by stipulation of the parties. Professor Berman is a nationally recognized authority on Russian law. He has been in the Soviet Union seven times since 1955, including a year spent there doing research in Soviet law. He has visited and argued before Russian courts. He has testified as an expert on Russian law in many courts in the United States. In In re Estate of Larkin, supra, 52 Cal.Rptr. 441, 416 P.2d 473, Professor Berman's testimony is to the same effect as his answers to interrogatories here. In Larkin under an identical statute as our Code section 567.8 the California court permitted a citizen and resident of Russia to take under a will in that state. In a footnote at page 442 of 52 Cal.Rptr., at page 477 of 416 P.2d, the California Supreme Court says: "Professor Berman possesses the highest qualifications to testify in regard to the law of the Soviet Union. * * * Professor Berman stated that during his visits in the Soviet Union he had taken particular care to inform himself of the Soviet law and practice relating to inheritance by United States citizens because of the frequency with which he has been called upon to give an opinion on this matter in the United States."
In the case at bar Professor Berman's qualifications or competency are not challenged. None of his testimony is contradicted.
His testimony reveals he has studied and is familiar with the current Civil Codes of the Estonian Soviet Socialist Republic, the Union of Soviet Socialist Republics (U.S. S.R.), and the Russian Soviet Federated Socialist Republic (R.S.F.S.R.). The R.S. F.S.R. is the largest of the sixteen Union Republics which comprise the U.S.S.R. The Fundamental Principles of Civil Legislation of the U.S.S.R. (referred to as the Fundamental Principles) which were adopted in 1961 and somewhat modified in 1964 govern all Civil Codes of the various republics including Estonia.
Article 122 of the Fundamental Principles to which the Estonian Civil Code is subject provides: Capacity of foreign citizens to have civil rights and obligations: Foreign citizens (that is citizens of foreign states  HJB) shall enjoy the capacity to have civil rights and obligations equally with Soviet citizens. Individual exceptions may be established by laws of the U.S.S.R.
"The Council of Ministers of the U.S.S. R. may impose retaliatory restrictions upon citizens of those states in which there exist special restrictions upon the capacity of Soviet citizens to have civil rights and obligations."
Article 9 provides: "Content of the capacity of citizens to have civil rights and obligations.
"Citizens may have, in accordance with law, personal ownership of property, the right of use of dwelling places and other property, the right to inherit and to dispose of property by will, * * *."
Thus, although Article 9 refers to the rights of "citizens of the U.S.S.R.," under Article 122 these rights are automatically extended to citizens of foreign states unless there is legislation restricting the rights of foreigners or unless the Council of Ministers of the U.S.S.R. has established special restrictions by way of retaliation against countries which discriminate *445 against Soviet citizens. Professor Berman stated "in the case of inheritance, no legislation has been adopted restricting the rights of foreigners and the Council of Ministers has not imposed retaliatory restrictions upon the rights of American (or, as far as I know) citizens to inherit from Soviet decedents."
Another statement of Professor Berman is particularly pertinent. "In addition many cases have arisen in which foreigners, including American citizens, have been left property by Soviet citizens either by will or by intestate succession, and in all such cases which have come to my attention, including both reported and unreported cases, the foreigners' rights to inherit have been fully protected."
Especially persuasive is Professor Berman's reply to a hypothetical question which poses the exact factual situation present in this case. His answer was "Soviet law, including Estonian law, clearly provides that under the assumed facts, the niece would have full rights to take the entire estate under the terms of the will."
Also in evidence is an affidavit taken in 1963 of Nikita I. Bondarev, Senior Notary of the First Moscow State Notarial Office. As Senior Notary he was in charge of administering inheritance laws which included such duties as certifying wills, protecting estate property, and notifying heirs of the opening of an estate. He testified to numerous cases in which he had remitted funds to nonresident aliens, including those residing in the United States.
Two letters dated April 1 and April 23, 1965, from the United States Department of State were received in evidence. The Department stated there is not now in force any treaty agreement between the United States and the U.S.S.R. containing provisions relative to inheritance rights of citizens of either country. One letter referred to a 1925 treaty between Estonia and the United States providing for reciprocal inheritance rights. It went on to say that in view of the armed Soviet takeover of Estonia in 1940 and the subsequent Soviet repudiation of any previous Estonian treaty agreements, the Department recognizes "limitations exist on the effect which can be given to provisions of the Treaty of 1925" and therefore "considers that the administration of estates is a matter within the jurisdiction of the various States and the court having funds to be distributed to beneficiaries abroad is the appropriate body to determine whether * * * distribution should be made * * *."
Considering the weight and persuasiveness of the uncontradicted testimony produced we hold appellant has sufficiently met her burden of proving the "reciprocal right" as contemplated under 567.8(2).
In reaching such a conclusion we are not unmindful of appellee's concern over the absence of proof that the property in this case, or in similar cases, will or ever has reached the intended recipient. The State Department states dollar amounts remitted to Estonian citizens are retained by Soviet authorities, and the recipients receive Soviet currency at a rate of exchange controlled by said authorities. Whether such practice results in inequitable distribution to the intended recipient, while regrettable, is not our concern under a proper construction of section 567.8. Our sole function is to determine whether our citizens enjoy reciprocal rights upon the same terms and conditions as Estonian citizens. The evidence before us reveals they do and that the requisite reciprocity has been shown.
III. Appellee next asserts appellant failed to specifically plead Estonian law and therefore the issue regarding the status of said law should not be considered. No such claim was made before the trial court. Appellee cites no authority other than his contention that: "It is axiomatic in Iowa that foreign law must be both pleaded and proved." Rule 94, R.C.P. supports this statement. Appellee, however, made no objection to the evidence submitted *446 in great detail concerning the law of Russia and Estonia. He in fact stipulated the interrogatories and answers made thereto by Professor Berman be taken as part of the record in the trial court. Other evidence regarding the foreign law was received without objection. Appellee's contention is untenable under the record.
Permitting the introduction of evidence on an issue not specifically pleaded obviates the necessity of its formal presentation. Where, as here, parties proceed without objection to try an issue, even though not presented by the pleadings, it amounts to consent to try such issue and it is rightfully in the case. Nelson v. Leaders, 258 Iowa 919, 922, 140 N.W.2d 921, 923; Reed v. Harvey, 253 Iowa 10, 13, 110 N.W.2d 442, 444; Federated Mutual, etc., Ins. Co. v. Erickson, 252 Iowa 1208, 1219, 110 N.W.2d 264, 270; Wilson v. Corbin, 241 Iowa 593, 605, 606, 41 N.W.2d 702, 708, 709.
IV. The conclusions of law filed April 13, 1967 include a finding appellee is entitled to a default against appellant. The default was applied retroactively from December 19, 1966. This holding was based on the trial court's conclusion that "after detailed review of the chronology of the persistent, but nonoppressive steps necessarily employed by claimant Millers through his counsel to bring about a final resolution of the questions here involved, and also of the succession of aggravating, unreasonable, unexplained delays obviously attributable to the New York counsel for the nonresident alien claimant, the court finds that Eva Tambek-Sepp * * * was dilatory, derelict, and guilty of unexcused and inexcusable laches. Whether these delays were tactical or the product of negligence is of no moment."
A detailed chronological review of the events upon which the retroactive default was based would unduly lengthen this opinion. It is sufficient to note the long history of delay and procrastination was due in a large part to a New York law firm representing Eva Tambek-Sepp. Their delaying tactics so embarrassed Mr. Clarence Cosson, a local attorney handling the case for the New York firm, that he withdrew as counsel on December 1, 1966.
On December 7, 1966, Mr. Fred Royal, Eva's newly retained lawyer, made a motion for continuance in order to prepare for trial. The court ordered hearing for December 19, on which date appellee reurged his motion for default and appellant moved for another continuance. Thereafter the trial court made the following order: "Now on this 19th day of December, 1966, the above matter again came before the Court, Eva Tambek appearing by her Attorney, F. A. Royal, and Andris Millers appearing by his Attorney, John Paul Jones, who insisted that the default of Eva Tambek be ordered, and the Court having again reviewed the record and file finds:
"1. That said Eva Tambek is in default, but this cannot be charged to her local attorneys of record.
"2. That over strenuous objection made on behalf of Andris Millers, the default should not be entered against Eva Tambek on this date.
"3. That this matter should be definitely set for final hearing on January 4, 1967, at 9 a.m.
"4. That the additional time allowed herein will give interested parties sufficient opportunity to become prepared to present their case.
"IT IS THEREFORE ORDERED AND DECREED the above matter will come on for hearing before the undersigned on January 4, 1967 at 9 a.m., at which time all matters pending shall be presented."
We have not been cited nor has our research revealed any case where entry of default and judgment thereon has been upheld after trial on the merits. Courts look with favor upon trials on the merits *447 of each case and the rights of a litigant should not be denied proper hearing by strict application of legal formalities. Hobbs v. Martin Marietta Co., 257 Iowa 124, 129, 131 N.W.2d 772, 775; Newell v. Tweed, 241 Iowa 90, 95, 40 N.W.2d 20, 23, and precedents cited in each. We are convinced this controversy should be decided on its merits and the retroactive default entered by the trial court should be given no force and effect.
This cause is reversed and remanded to the trial court for such further proceedings as necessary in the estate and for decree in accord with this opinion. Costs are taxed against the estate.
Reversed and remanded.
All Justices concur.


835 F.2d 875Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Niel OLAN, Plaintiff-Appellant,v.NEW YORK STATE PAROLE BOARD, Attorney General of the Stateof New York, Commissioner of the New York StateDepartment of Correction, Defendants-Appellees.
No. 87-7266.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 26, 1987.Decided Nov. 23, 1987.

Niel Olan appellant pro se.
Before WIDENER, ERVIN, and WILKINSON, Circuit Judges.
PER CURIAM:

1
Neil Olan appeals the district court's order dismissing his 42 U.S.C. Sec. 1983 complaint.  Finding that we are without jurisdiction to consider this appeal, we dismiss it as untimely.

2
In civil actions in which the United States is not a party, an appellant has 30 days from entry of the district court's order to file a notice of appeal.  Fed.R.App.P. 4(a)(1).  Under Rule 4(a)(5), Fed.R.App.P., an appellant may seek an extension of this 30-day period upon motion filed within the next 30 days.

3
Olan failed to note an appeal within the period provided by Rule 4(a)(1) or to request an extension within the 30 days provided by Rule 4(a)(5).  After expiration of the 30-day period provided in Rule 4(a)(5), the district court lacks authority to grant an extension of the appeal period.    Hensley v. Chesapeake & Ohio Ry. Co., 651 F.2d 226, 228 (4th Cir.1981).

4
Accordingly, we dismiss the appeal as untimely filed, deny his motion for appointment of counsel, and deny his motion to add an additional defendant.  Because the dispositive issues have recently been decided we dispense with oral argument.

DISMISSED


                              COURT OF APPEALS FOR THE
                         FIRST DISTRICT OF TEXAS AT HOUSTON

                                         ORDER

Appellate case name:        In re Erin Broussard f/k/a Erin Arnel, Relator

Appellate case number:      01-18-00011-CV

Trial court case number:    16-DCV-233665

Trial court:                328th District Court of Fort Bend County

      This Court’s January 11, 2018 Order denied relator’s opposed motion for an
emergency stay of the underlying modification proceeding because relator, Erin
Broussard f/k/a Erin Arnel, did not demonstrate why emergency relief was necessary.
See TEX. R. APP. P. 52.10(a). Then this Court’s February 6, 2018 Order dismissed as
moot the two motions to strike filed by real party in interest Roy Arnel and requested a
response to the mandamus petition within twenty days of that Order.

        On February 6, 2018, relator filed an opposed motion for reconsideration of the
denial of her motion for emergency stay, again seeking a stay of the underlying
proceeding for twenty days after this Court’s disposition of the petition. Relator contends
that a stay is needed because, among things, she contends that the trial court no longer
has subject matter jurisdiction and the “pending threshold issue of subject matter
jurisdiction should be decided prior to imposing the burden of engaging in costly
litigation and continued trial pending resolution.” However, relator did not include a
copy of any order setting a discovery deadline or trial date or otherwise demonstrate why
emergency relief staying the underlying proceeding is necessary before RPI’s Arnel’s
response deadline and disposition of this petition. See TEX. R. APP. P. 52.10(a).

      Accordingly, the Court denies relator’s motion for reconsideration of the denial of
her motion for emergency stay, which is construed as her second emergency motion.

       It is so ORDERED.
Judge’s signature: /s/ Evelyn V. Keyes
                   
Date: February 13, 2018


182 F.Supp.2d 468 (2002)
GOVERNMENT OF THE VIRGIN ISLANDS, Appellant,
v.
Edwin E. HATCHETTE, Appellee.
No. CIV.A.1999-047.
District Court, Virgin Islands, Appellate Division, D. St. Thomas.
January 30, 2002.
*469 Maureen Phelan Cormier, Asst. Attorney General, Department of Justice, St. Thomas, VI, for Appellant.
Karl R. Percell, Law Offices of Percell & Hermon-Percell, P.C., St. Thomas, VI, for Appellee.
Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin Islands; THOMAS K. MOORE, District Judge, District Court of the Virgin Islands; and MARIA M. CABRET, Presiding Judge of the Territorial Court, Division of St. Croix, Sitting by Designation.

MEMORANDUM OPINION
PER CURIAM.

I. FACTUAL AND PROCEDURAL BACKGROUND
In March, 1994, Edwin E. Hatchette ["Hatchette"] was employed by the Government of the Virgin Islands ["government"] as the Director of the Treasury, a classified position held by Hatchette since October 1, 1973. Following a reorganization by the government, this position was moved from the classified service to the unclassified or exempt service. After Hatchette refused to sign the election letter moving him to the exempt service, the Commissioner of Finance notified Hatchette via a memorandum dated March 16, 1994, that Hatchette would be relieved of his duties as Director of the Treasury and placed in a comparable classified service position within the Department of Finance effective March 21, 1994. Hatchette did not suffer any reduction in wages or benefits as a result of this action. On March 29, 1994, Hatchette appealed the government's action to the Government Employees Service Commission ["GESC"].[1]
After conducting hearings on May 5 and 19, 1994, the GESC affirmed the government's action, finding that the government's decision to remove Hatchette as Director of the Treasury was lawful because *470 Hatchette, as a classified employee, could not hold an exempt position. The GESC directed the Commissioner of Finance to reassign Hatchette to an existing classified position or create a comparable classified position within the Department of Finance and ordered that he suffer "no reduction, loss or change in pay, grade level, seniority, benefit or tenure as a result of his reassignment." (Appendix ["App."] at 170-75 (GESC May 19, 1994 Decision).)
Hatchette petitioned the Territorial Court for a writ of review of the GESC's decision, which was granted by the court. At some point after filing the petition, Hatchette retired from the Department of Finance. (See App. at 18, 44, 140.) After receiving the record from the GESC and hearing the arguments of counsel, the Territorial Court reversed the decision of the GESC. (Id. at 3-9 (Feb. 3, 1999, decision of the Territorial Court).) The Territorial Court found that the GESC lacked jurisdiction over the matter because it failed to hold a hearing within the thirty days mandated by statute. See 3 V.I.C. § 530(b) ("The [GESC] shall meet within 30 days after the filing of the appeal ...."). As a remedy, the Territorial Court directed the government to remove "any and all references, comments, notations and inferences to [Hatchette] being reassigned in his job or employment" from government records, which presumably meant from Hatchette's personnel file. (App. at 8-9.) The government filed this timely appeal.

II. DISCUSSION
The Appellate Division has jurisdiction over this appeal pursuant to 4 V.I.C. § 33 and 5 V.I.C. § 1423. The Court will uphold the trial court's findings of fact unless they are clearly erroneous and exercises plenary review over questions of law. Id.; Government Employees Ret. Sys. v. Hill, 866 F.Supp. 880, 882 (D.Virgin Islands 1994); Stallworth Timber Co. v. Triad Bldg. Supply, 37 V.I. 49, 52, 968 F.Supp. 279, 281 (D.Virgin Islands 1997); Nibbs v. Roberts, 31 V.I. 196, 204 (D.Virgin Islands 1995).
In its reply brief, the government for the first time has raised the issue of whether the GESC had jurisdiction to consider Hatchette's appeal because Hatchette did not file it within the ten days required by 3 V.I.C. § 530(a). Section 530(a) provides, in relevant part:
[W]here a department head ... decides to dismiss, demote, or suspend a regular employee, ... for cause, he shall furnish the employee with a written statement of the charges against him. The employee shall have ten days following the date of receipt of said statement of the charges to appeal the proposed action to the [GESC].
(Emphasis added.) The record contains a memorandum to Hatchette dated March 16, 1994, outlining the proposed personnel action to be taken against him. Hatchette supplemented the record following oral argument with a copy of a letter dated March 24, 1994, that he sent to the Commission of Finance. In this letter, Hatchette advises the commissioner that he did not receive the March 16th memorandum until March 21st when he returned to work following a two-week absence from St. Thomas because of a family medical emergency. Accordingly, Hatchette had ten days from March 21st, the date of receipt, in which to file his appeal to the GESC. His filing on March 29th therefore was timely.
The GESC nevertheless still lacked jurisdiction because it failed to meet within thirty days after the filing of Hatchette's notice of appeal as is required by statute. The government argues that the GESC did have jurisdiction because it acted within thirty days. In support of its argument, the government points to the *471 scheduling by the GESC of a hearing and its later decision granting Hatchette an extension of time before proceeding. The applicable statute, however, does not require the GESC to merely act within thirty days; the GESC is required to convene and conduct a hearing within thirty days. 3 V.I.C. § 530(b) ("The Government Employees Service Commission shall meet within 30 days after the filing of the appeal and afford the department head and the employee an opportunity to be heard."). The actions undertaken by the GESC in this matter before the expiration of the thirty days consisted solely of scheduling the hearing and granting an extension of time. This does not satisfy the requirements of section 530(b) and deprived the GESC of jurisdiction to consider Hatchette's appeal.[2]See Reefer v. Government of the Virgin Islands, 17 V.I. 373, 377 (D.V.I.1980) ("It defies all credulity to assert that the thirty-day time limit could be satisfied by the mere artifice of scheduling a meeting within the thirty-day time period, and later rescheduling it beyond the thirty-day period.").
Where the GESC fails to meet within the thirty days mandated by section 530(b), the employee must be "reinstated, with full pay, to the date of his original dismissal or suspension." Id. In this instance, this statutory remedy presents a quandary and the fundamental problem with this action from its inception, namely, there has never been a remedy available to Hatchette.
Hatchette concedes that he did not suffer any reduction, loss or change in pay, grade level seniority, benefits or tenure as a result of the government's actions. Accordingly, he cannot be awarded "full pay, to the date of his original dismissal or suspension." On appeal, Hatchette maintains that because the GESC lacked jurisdiction as a result of its untimely actions, the GESC was required to reinstate him as Director of the Treasury. Under other circumstances, this is exactly what should have occurred once the GESC failed to act within the required time limits. In this instance, however, it simply cannot.
In 1988, at the same time the government undertook a broad reorganization of job functions throughout the executive branch, the Virgin Islands enacted a law prohibiting a classified employee from being moved to the unclassified service unless the classified employee voluntarily consented to such a move:
No government employee of the Executive branch who holds a position or classification of employment in career or classified service, as referred to in Title 3, Section 451a, VIC, and who is employed within a bargaining unit certified by, or which may become certified by, the Public Employees Relations Board, pursuant to Title 24, Chapter 14, VIC, shall be placed into exempt, unclassified or temporary service, unless and until such employee has filed a written request therefore with the Director of Personnel upon form to be provided by the Director. Such form shall set forth a statement that the request is voluntarily undertaken and it shall contain a verification that such statement is voluntarily undertaken as certified by a witness. *472 See Act of March 24, 1988, No. 5336, § 6(b), Sess. L.1988, at 124 (provided in App. at 193-97). Accordingly, because Hatchette refused to voluntarily move to the unclassified service, he could not legally retain the position of "Director of the Treasury" once that position was redesignated as being part of the unclassified service. Therefore, even though the GESC failed to act within a timely manner as prescribed by statute, Hatchette had no remedy because he never could have been reinstated to a position the law prevented him from holding.
Similarly concluding that the GESC failed to act in a timely manner, the Territorial Court tried to fashion a remedy by ordering that Hatchette's personnel file be expunged of all references to his removal from the position of Director of the Treasury.[3] The court, however, could only grant that relief which was within the power of the GESC to execute. The GESC, now known as PERB, only has the power to "sustain or reverse the decision of the department head or [it] may reduce the penalty recommended by the department head." 3 V.I.C. § 530(c). The GESC has no authority to expunge personnel records and, therefore, neither did the Territorial Court. See Branch v. Bryan, 18 V.I. 54, 58 (D.V.I.1980) ("[T]he GESC has only the powers set forth in 3 V.I.C. § 530(c), which do not include the power to order expungement of personnel records.").
In the absence of any means of granting Hatchette effective relief in this matter, we must dismiss this appeal as moot. See Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (The Court must dismiss an appeal as moot if events have occurred which render it impossible for the Court to grant any effective relief to the prevailing party.) The Court, adhering to established appellate adjudication, also will vacate the Territorial Court decision and will remand the matter with directions for the Territorial Court to vacate the GESC ruling. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71-73, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (finding that, although it has found appeal to be moot, appellate court has jurisdiction to review the authority of the lower court to entertain the suit and appellate court may "`make such disposition of the whole case as justice may require'") (internal quotation omitted).

III. CONCLUSION
Although the GESC, now known as the PERB, failed to timely consider Hatchette's appeal of his removal from the position of Director of the Treasury, there simply is no remedy available to Hatchette. He is not entitled to any monetary compensation because, as he admits, he did not suffer any reduction in pay or other loss of benefits. Most importantly, he could not have been reinstated to the position of Director of the Treasury, an unclassified service position, because he refused to give up his protected status as a classified employee and join the unclassified service. As a matter of law, a classified employee cannot occupy a position *473 within the unclassified service. Any form of relief beyond compensation and reinstatement also fails because it was and is beyond the statutorily defined powers of the GESC, now PERB. Accordingly, we find that this appeal is moot and will vacate the decision of the Territorial Court dated February 3, 1999, and will remand with directions that the Territorial Court vacate the decision of the GESC. An appropriate order is attached.
NOTES
[1]  In 1994, the GESC was renamed the Public Employees Relations Board. See 3 V.I.C. § 530, History Annotations (citing Act of Sept. 2, 1994, No. 6010, § 2, Sess. L. 1994, at 165).
[2]  The government has requested that this Court overturn previous decisions and abandon strict adherence to the 30-day requirement. The government characterizes the previous case law on the subject as creating a "harsh" and "no leeway" rule. The Court rejects the government's argument. The plain language of the statute requires PERB to both meet and provide an opportunity to be heard to the employee and the department head within thirty days after filing of the appeal. Any modification of this timeframe is an issue properly raised to the Legislature, not this Court.
[3]  The Territorial Court fashioned this relief in the context of Hatchette's retirement from government service while the matter was pending. (See App. at 8 (Terr. Ct. decision at 6).) If the court could have fashioned "`some form of meaningful relief,' even if it only partially redresses the grievances of the prevailing party," then Hatchette's appeal would not be moot. Isidor Paiewonsky Assocs., Inc. v. Sharp Properties, Inc., 998 F.2d 145, 151 (3d Cir.1993) (quoting Church of Scientology, 506 U.S. at 12, 113 S.Ct. 447). As discussed in the text, however, the only relief allowed by statute is reinstatement and payment of any lost wages. As also discussed in the text, supra, neither of these remedies was available to Hatchette.


580 So.2d 1248 (1991)
Alice Marie CARSON
v.
NATCHEZ CHILDREN's HOME, and Julie Mae Bell and Jason Lee Davis, Minors[1].
No. 90-CA-0142.
Supreme Court of Mississippi.
May 3, 1991.
David M. Read, Natchez, for appellant.
Pamela A. Ferrington, Natchez, for appellee.
En Banc.
HAWKINS, Presiding Justice, for the Court:
Alice Marie Carson appeals the decree of the chancery court of Adams County terminating her parental rights to two of her children under Miss. Code Ann. § 93-15-103(3)(b). We find the decision of the chancellor supported by substantial evidence not manifestly wrong, and affirm.

*1249 FACTS
Carson is the sole source of her life story. She was born in Natchez in or about the year 1961. She was raised in Boston, Massachusetts. She had four brothers, one of whom was handicapped. She described her mother as a quiet, submissive and long suffering wife, her father as cold, domineering and physically brutal. He rebuffed any effort at affection toward him, and beat her. The three able-bodied brothers sexually abused her. When she informed her parents, she was given a cot in the kitchen to sleep on.
When fifteen years of age, she was raped by a stranger. Her mother advised her not to report it.
In 1978, when she was seventeen, she married Sam Ellis in Boston. He drank excessively and used drugs. He would beat her, and then have sex with her. She divorced Ellis in 1982, and went through a marriage ceremony in Boston with Will Davis. Carson had two children, Debbie Lynn Davis, born May 27, 1981, and Jason Davis, born July 11, 1982. Carson testified Davis was loving with the children, but a heavy drinker who was always broke. She stayed with Davis until January, 1983, and then returned to Adams County where her parents then lived. When she went to get a divorce from Davis, she learned there was no record of her marriage to him.
She married Mark Bell December 12, 1983, who was in the military service. To this union her last child, Julie Bell, was born January 3, 1985. She moved with Bell to Virginia, and separated from him following his stabbing himself in the presence of the children in an effort to avoid being transferred to Panama. Following her separation from Bell, she returned to Adams County. She divorced Bell December 18, 1986.
She started going with Bobby Carson in July, 1986, and married him January 21, 1987. She divorced Bobby Carson in December, 1988. For a while during her marriage to Bobby Carson, she lived in Texas, and also helped him look after his children from a previous marriage.
In 1989 she became attached to another man, Ned Clark, in Adams County, and was living with him during that year.
The record does not reveal the formal education of Carson, but it was apparently quite limited. On July 30, 1986, following a consultation the previous day with the Natchez Children's Home (the Home), an unlicensed facility, Carson delivered her three children to the Home for temporary custody. At the time she was financially unable to provide for them.
Approximately a month later, Julie was placed in night-time foster care with Ramona Roper of Natchez, who at the time was single.
After a period of time Debbie and Jason, especially Debbie, were observed exhibiting overtly sexual behavior. After November, 1986, however, there were only two occasions when Carson could have been involved: a two-to-three day period when she had the children during Christmas, 1986, and a few days when she had the children during the Easter holidays, 1987.
It should also be noted that during the Christmas visit Debbie complained to her mother that a larger boy at school was touching her. Carson reported this to the school, and it was learned that there was substance to this complaint.
Also, in February, 1987, Carson reported to the Home that Debbie had told her a man named "John," who worked at the home was touching her.
When the children returned from the Easter, 1987, visit, a houseparent found Jason playing with a plunger in a sexual manner. When questioned, Jason told her that he and Debbie "touched" each other while they were at their mother's. A few minutes later Jason was seen pulling down another child's pants. When Debbie was questioned about Jason's report of their behavior during their visit, she said it happened.
Also, April 21, 1987, the night they returned, while Debbie and Jason were assigned separate rooms, the two were discovered in Jason's bed, their bottom clothing uncovered. When separated, Debbie *1250 was heard telling Jason, "I'll beat your butt if you tell."
On May 28, 1987, it was reported to Peter Hungerford, the director of the Home, that Debbie and another child had been sexually acting out together. Hungerford and Betty Gideon, a worker at the Home, questioned Debbie, who admitted the act, and that she had initiated it. At that time she told Hungerford and Gideon that during the previous Christmas holidays she had been sexually involved with her mother, her Aunt Joan Logan and Logan's daughter. The contact, according to Debbie, consisted of touching each other in their private areas, and also included Jason and Julie. Debbie told them she had oral sex with Jason, and that her mother had rubbed her in her private areas.
She also reported that when she was five-years-old, her maternal grandfather had touched her, and had oral sex and intercourse with her. She said it hurt when men did it. She also reported intercourse with Mark Bell with her mother present. She said intercourse happened with Bobby Carson "a hundred times."
It should be observed that what Debbie and Jason related to the Home's authorities came from Nancy Hungerford's reading from the Home record notes made of these events. The entire notes were introduced as Exhibit 4 without objection.
There were several hearings concerning the children in the Youth Court of Adams County. Portions of the transcripts of the hearings are in the record.
At the first hearing on October 7, 1986, there was no controversy. Peter Hungerford gave the court a statement of the goals, and told the court that Carson had strong mothering skills but was broke.
There was another Youth Court hearing on May 12, 1987, but no transcript of any of this proceeding is in the record.
At the August 26, 1987, hearing, Peter Hungerford testified at some length. He testified that prior to and since the May 12 hearing the Home had been dealing with the sexual behavior of the children, trying to get a coherent picture. Debbie was noticed kissing, fondling, laying on top of or under younger children than she. When questioned, she was fearful. A tape had been made and given the Youth Court.[2]
As a basis for his conclusion that Debbie had been involved in sexual activity with grown persons, Hungerford testified at the Youth Court hearing:
Specific facts in the multitude of her sexual activity. She  I mean, you know, I've seen all sorts of ranges of different types of children. She exhibited, and many times we have notated, specific sexual activity that is just much, much more than what we could call normal activity.
... .
OK. She had fondled two- and three-year-old boys. Uh, pulled down their pants and fondled them. She has, uh, been seen laying on the ground with an older girl laying on top of her. She has been caught with an older boy fondling her.
(Youth Court Transcript, p. 6; Exhibit 12)
Following the incident on May 28, 1987, in which Debbie was observed with an older girl lying on top of her, Hungerford related how he had called the children in and questioned them. The older girl admitted having sexual contact with Debbie, but that Debbie initiated it. Debbie, when questioned, admitted her involvement. Debbie also named a number of other children with whom she had had sexual contact, ranging from touching to intercourse, which she told him was painful.
When Hungerford asked her who taught her these things, she became fidgety and nervous. She told of her other stepfather, Bell, touching her sexually and having had intercourse with her. She said this had occurred during the Christmas, 1986, holidays. She named her maternal grandfather as having had intercourse with her, and also Bobby Carson, her stepfather. She was afraid of being hurt for telling him, but Hungerford assured her that no one would harm her. He then asked her who had taught her to do sexual things *1251 with girls. Again, after hesitation followed by reassurances, she told him that during the previous Christmas her mother had two friends to visit, Aunt Joan and Aunt Lori (in fact Carson's aunt Joan Logan and Logan's daughter Lori), who had sex with her mother and Debbie. Upon another occasion Debbie had related that her mother taught her to do sexual things.
Following this, the children were evaluated at the Southwest Mental Health Complex and its reports were given to the Youth Court.[3]
On June 15, 1987, there was a discussion between Carson and Hungerford about the developments involving her children. Hungerford said this greatly distressed Carson, who requested them to find foster care for the children until the whole matter was cleared. On July 1, 1987, Jason was placed in a foster home.[4] Hungerford recommended long-term foster care for the children.
There was an extensive cross-examination of Hungerford by Carson's attorney, during which he testified that the Home had suspected unusual sexual activity even before April 20, 1987, but that it was only after the children felt they could trust the people at the Home that their stories began to be revealed.
A medical doctor examined Debbie in July, 1987, and while he found the vagina too long, he found no damage. He told the Home there could have been slight penetration.
Hungerford testified that the Home began making notes on all children in April, 1987.
Hungerford testified that he and Carson talked about the children and their behavior, and at one time she became so distraught she wanted to give them up, and he told her no. Also, she related an incident that occurred during the 1986 Christmas holidays when Mark Bell was found in bed with both the children, and Debbie did not have pants on; Carson was concerned that Bell may have had sex with Debbie.
Hungerford said the children needed long-term foster care in order to give Carson "an opportunity to work through some very difficult issues in her life... . She's going to take time to get her act together, to get her life straight. She's on medication now, she's had a rough life, it's not going to be easy. She needs help." (Youth Court Transcript, p. 24; Exhibit 12).
Hungerford could give no information as to the time needed, stating it could take years, that it was up to a psychologist.[5]
Jason was placed in a second foster home with Keith and Carol Ward in Monroe, Louisiana, in August, 1988. As above noted, Julie had been in the foster care of Ramona Roper Hunt since October, 1986.
On April 4, 1989, there was a petition filed in the chancery court of Adams County to terminate the parental rights of Carson and Davis as to Jason, and on the same date another petition filed to terminate the parental rights of Carson and Bell as to Julie. The chancellor appointed a guardian ad litem for the children.
Neither father answered nor appeared, and both petitions were heard at a chancery court hearing beginning September 13, 1989.
Sandra Geiger, who held a master's degree in marriage and family therapy, testified that on May 29, 1989, the Wards had brought Jason to her for observation and treatment. She spent sixteen and a half hours with him, all but two of which were just between Jason and her.
She described Jason as an extremely intelligent seven-year-old child. Without objection she was asked what incidents were observed by her and indicative of Jason's being a sexually abused child. She replied that the first time the two were alone, she gave Jason teddy bears and during the play *1252 he wanted to take the boy to the bathroom, where he took its pants down, and upon seeing its penis, played with it. Then he took the girl doll in the bathroom and removed her clothes. He flicked the penis of the boy doll, and stroked the genitals of the girl doll, and inserted a finger into it. When he did so, he smiled at Geiger. He named the dolls Debbie and Jason, and asked if it would be all right if they played together naked. He pressed them together, and played with the dolls clothed and unclothed.
Geiger testified there was an element of secrecy, that sometimes Jason did not want her watching him playing with the dolls and sometimes he would make a display in front of her.
Jason told of a bad dream of being put to bed without supper and being "touched in places they shouldn't."
It should be noted that when Geiger first saw Jason, it was over two years after he had last been alone with his mother.
Dr. James Hurley, a professor of marriage and family therapy at Reform Theological Seminary, and director of a family therapy clinic in Jackson, testified as an expert. It was stipulated that he was "an expert in the psychology related field of sexual abuse of children." He had worked with Debbie for nine months, the school year of 1987-88. His objective was to help her adjust to foster care, and facilitate her placement. He described Debbie as a bright, loving, but anxious six-year-old child, all of which was entirely appropriate. In her anxiety she had a tendency to sexually comfort herself by masturbating. She literally commanded affection, and would run across the room, land in Dr. Hurley's arms and rub her genitals against him. "Her behaviors then were very, very highly sexualized."
She was anxious about loss and separation from her mother, was afraid of being abandoned, and wanted to be loved. Her feelings were intense, and she could be loud and disruptive when anxious. She had a difficult time sitting still and cooperating.
He introduced drawings made by Debbie which to him suggested her sexual knowledge and interest, but which interest waned following a period of time.
Q. Is that behavior consistent with a child who has been sexually abused?
A. Yes, there are a number of patterns of approaching that kind of thing. It means that the topic was a very sensitive one for her and one she didn't want to enter into. It would certainly be consistent with being abused, a source of great anxiety. She was willing, however, to discuss one incident. It seems to be one she felt safe enough to discuss and that is an incident and we covered it five times in the course of therapy several months kind of apart.
Q. And what was her
A. That was a situation where she reports being on her mother's bed in her pajamas; that daddy, whom she identified as [Bobby], came in, put his hand between her legs on her genitals and began to rub in a circular motion and her gesture is like this (INDICATING). I infer that that was an effort to sexually stimulate her and I did pursue that with her. She explains herself as crying out in response to that, describes her mother coming in and doing the same thing, putting her hand on her and stimulating [Debbie Lynn]. I asked her what happened then and after a while it stopped. The picture is consistent each time she tells it. The body awareness is consistent with a young child. She doesn't exhibit great distress around it; anxiety but not anxious distress. I asked her how it might feel to have someone do that. She really didn't want to talk. I asked her if that could feel good. Didn't know if it could feel. Where she is a child who masturbates freely and publicly to have no idea if rubbing the genitals could have feelings with it suggests that that is a fairly distressing topic when it gets picked up in that context. She was free to tell me at other points, not around this, but at other points, that it felt good to be *1253 touched there or to touch oneself there.
Q. Did she differentiate between the two, being touched and touching oneself?
A. Both were anxiety producing for her. No, not really a great deal. She was unwilling to specify beyond [Bobby] and mommy who else would touch her there. She was anxious about telling me that she had touched herself there. I don't think that is surprising and at school we had to discuss that with her because she was doing it in class and talked about this was disturbing to people; it wasn't the way to behave in class. We arranged to have her come in trousers and that helped the process a great deal.
(Parentheses original; brackets ours)
Dr. Hurley said that it would be inconceivable that one incident would produce Debbie's behavior. He stated that the expression of affection from her blended right into sexual stimulation. While this was appropriate with married couples, it was not with strangers. He testified that she had no boundaries of behavior. When asked for his opinion of whether she had been sexually abused, he replied, "Oh, yes." "I would judge that it has happened in relation to her mother and in relation to somebody called Bobby, that much at least."
Dr. Hurley testified that both statistically and operationally sexually abused children were more likely to abuse their children.
Dr. Hurley saw no sign of physical abuse.
Dr. Hurley corroborated Geiger in Jason's behavior around the teddy bear dolls. "He identified the bears as himself and his sister. That is really pretty unusual and that is an understatement. That is just dramatically unusual when you're putting them in sexual sorts of positions." (R. 82)
As to Debbie and Jason being together, Dr. Hurley stated, "Candidly I think that they are at risk if they're together, I mean to be really frank."
Q. Jason and Debbie?
A. Yeah, and it kills me. I think siblings should be alongside one another and grow up together. I think that these two together would seriously be at risk.
Debbie had mixed but positive feelings about her mother, she really wanted to be with her.
He testified that Debbie's behavior and manifestations had improved at the end of his counseling, but Dr. Hurley warned that she would require long-term counseling and adult help. His prognosis for her was tentative. "She doesn't have many years before it is too late." (R. 153)
Nancy Hungerford's testimony from the Home's records and notes of children's behavior have been set out.
James Bart McConnell, an Episcopalian priest, was a sponsor parent for Debbie from August, 1988, until May, 1989. She was in his home twelve to fifteen times. He described her as a sweet and loving child who was very active. He described some incidents of overtly sexual behavior for a small child in her wanting him to rub her "lower," and once touching him in his private area.
Carol Ward testified that she and her husband got Jason in August, 1988. He was an anxious, active child with a short attention span. She gave examples of what to her were manifestations of overtly sexual behavior. He would run the bathtub over. He would get erections, and appeared to her to have a "seductive grin." In wanting her to rub him, his request was similar to Debbie's request to McConnell, that he could be rubbed "down there."
Jason wet the bed, and did so poorly at school that Mrs. Ward quit her job and taught him at home. He had radically improved in September, 1989.
Julie had been with Ramona Roper Hunt for three years at the time of the hearing. She related that when Julie was returned to her following Christmas, 1986, she had a severe diaper rash and a cold. Mrs. Hunt and her husband had a child following Julie's *1254 arrival, and Julie was relating well to the baby.
A contract between the Home and Carson dated February 6, 1988, was introduced as Exhibit 5. The agreement sets out certain goals for Carson in order to attain the ultimate goal of getting her children returned to her. The intermediate goals were that she be self-supporting, secure employment for at least six months at the same job, and not change unless for a better position; obtain low income housing; secure enough resources to enable her to provide adequate housing, food and medical care for her children; and establish a monthly itemized budget. It was further recommended that she attend counseling on a weekly basis, and establish one to three friendships with people who did not drink, do drugs, or engage in any activity that would promote irresponsibility.
To improve her parenting skills, she was to complete a parenting skills class provided by the Mental Health or Home, participate in structured monthly visitations, pay the Home $100 per month for each child, and other requirements designed to encourage her to be a reliable, supportive mother.
The agreement further stated that if she continued in the patterns of instability in relationships, attaching herself to alcoholic or abusive males, and dependency upon the children to meet her emotional needs, she risked having her parental rights terminated.
Diane Hash, a therapist at the Mental Health Center in Natchez, testified on behalf of Carson that she started coming to the center in May, 1989, where she saw her every two weeks. Throughout her counseling Carson denied any sexual involvement with the children and all the charges that had been made in the Youth Court. This was consistent with previous notes of the center. Carson throughout had maintained her complete innocence.
Carson suffered from depression and stress, with a history of mistreatment of her by her father and men she had known. Hash thought Carson was making improvements and that through therapy of Carson and the family, in a year or year and a half the family could be reunited. Hash said her therapy was directed toward helping Carson's parenting skills and mental status.
Carson denied ever having sexually abused her children in any way and, throughout direct and cross-examination, knowledge of any possible abuse by any other person or persons. She denied the allegation that her aunt and cousin sexually abused Debbie during the Christmas, 1986, visit, stating they were only together about two hours in the Joan Logan home, and nothing happened. She testified she got her children on December 23, visited Logan, and spent Christmas at her parents' home in Roxie. Her parents were then separated and not there. She said Debbie and Jason had colds, and Julie a diaper rash.
She said the house had three bedrooms, that she and Bobby Carson slept in her parents' room, the girls across the hall, and Jason in a room by himself. Debbie was distant and eventually cried and told her mother about a thirteen-year-old boy at the Home sexually touching her.
She said her children had exhibited no signs of overt sexual behavior prior to her placing them in the Home. She said the Home placed the children in foster homes without telling her, and that after August 26, 1987, she was never allowed to be alone with the children.
On cross-examination the details of the Christmas, 1986, visit were again brought out. She said that her mother, who was then keeping Carson's grandmother in Brookhaven, came over for a while, and that two of her brothers and one sister-in-law were there. Mark Bell, her former husband, was also there. She testified Bell spent about an hour with Julie. She said Bell and her brothers got to drinking outside the house, and she would not let them back in.
Carson held several different jobs, none of which lasted. She started a course in a junior college, but did not complete it. She had no job at the time of the hearing. The chancellor, however, stated that she had *1255 either substantially or completely fulfilled the 1988 contract.
Carson was extensively cross-examined and questioned by the chancellor. A flavor of her testimony can be gathered from the conclusion of her re-direct:
Q. [Alice], as a result of not only the violent rape that you experienced, but also the abuse that you suffered at the hands of your brothers and uncles and whoever else, do you have what you characterize as a normal sexual relation with men?
A. No, I don't.
Q. How would you characterize your sexual relationships with men?
A. I can't respond.
Q. Have you ever been able to?
A. No, I can't respond normally like anybody else could. I freeze up. (Sobbing)
... .
A. I can't respond, I can't respond to their touches; I just can't feel anything.
THE COURT:
What I'm saying is your past experiences just cause you to be inhibited to where you can't enjoy sex as much as maybe another female could?
A. I can't enjoy it, no.
THE COURT:
All right.
Q. [Alice], I'm about to conclude. Before I do so, I asked you this Monday and I'm going to ask you again, and take your time and compose yourself. Is there anything, anything at all that you want to address to this Court, anything, something that you may have already spoken to and that you want to restate or reemphasize? Is there anything that you want to address to this Court?
A. It's just . Everybody keeps saying that it's a gene pattern, that if it was done to me, I'll do it to my kids, and there's no way I could do that to anybody, because I can't stand  I can't cope and I can't . I have negative feelings to myself about what happened to me. I have grew up with guilt on my shoulders all my life because of it. Only thing I want is to try to prevent that to ever happen to my kids. I want them to have a normal life, to be happy, to enjoy relationships, to be able to love somebody, not to be the way I was brought up, not to do the things . I want them to have a normal life. I don't want them to go through what I did. (Weeping)
THE COURT:
Well, Ms. [Carson], I don't think anybody wants anybody to go through that. Counsel, do you have any other questions?
MR. READ:
Your Honor, I'd like to give her a chance to compose herself in just two or three minutes, and then if she has anything else she'd like to add to what she just said.
THE COURT:
Ms. [Carson], do you have anything else that you'd like to say? I don't want you to feel that you've walked out of this courtroom without having been able to say what you want to say. Is there anything else that you would like to say? And if there is, I'd like to give you a minute to compose yourself.
A. It's just that I love my kids very much. I know I have circled my whole life around them, because I never had the love of my parents the way I should have had. And so I tried to teach my kids how to love and how to return somebody's love, not sex-wise, [but] physical, mentally, but not the sexual part. I try to teach them it's not a shame it's nothing wrong with hugging somebody if you love them. Like my father made me feel like I was doing something wrong when I'd hug him. I'm trying to teach them that it's not a sin to love somebody, but it's a good feeling. I'm trying to teach them how to love and to accept love. I have always had trouble when somebody says they love me; I have always had trouble accepting it. If it wasn't for me overlooking a lot of things that my parents have put me through, I *1256 wouldn't know how to love anybody; I wouldn't know how to express it, because I was determined to prove to them that I was not going to be like them, that I was going to raise my kids different. I wasn't going to beat them, I wasn't going to beat them, I wasn't going to blame them and make them feel guilty, I was going to be a better parent than my parents ever was. That's all I got to say.
MR. READ:
Does the Court have any questions?
THE COURT:
No, I think we've questioned Ms. [Carson] to the hilt. You may ?
MR. READ:
Your Honor, I have one more.
Q. [Alice], are you biologically capable of having any more children?
A. No, I'm not.
(Parentheses original; brackets added)
The September hearing recessed until November 15, 1989. At this time the Home called the court's attention to the portion of the Youth Court transcript in which Hungerford had testified that Carson had reported to him, following the Christmas, 1986, visit, that Bell, without her knowledge had spent the night and slept in the same room with Debbie and Jason, and that Debbie had no pants on. Carson discovered them the next morning.
Carson again took the stand and testified the reason she had not mentioned this incident in the chancery court hearing was that she did not think about it.
The guardian ad litem, Patty Godfrey, a local attorney who had also been a school teacher, testified to her observations of the children preparatory to the hearing. She had observed them in the company of their foster parents, and in the company of Carson. She had no question but that Carson loved the children, and the children loved her, although it was more in the nature of an older sister. Julie looked upon Ramona Roper Hunt as her mother.
She did not question any of the children as to Carson's treatment of them, or any possible sexual abuse.
It was Godfrey's opinion from hearing the case, as well as observing the children, that it was in Jason's and Julie's best interest that the parental rights be terminated and the children separated.
At some time during the trial the chancellor talked to Debbie in chambers. The chancellor's opinion noted that the Youth Court had recommended termination of parental rights, and after setting forth summaries of the witnesses in detail, he related his examination of the children and final conclusion:
Lastly, and perhaps most importantly, the Court must consider the testimony given the Court in Chambers by the three children. It was quite apparent that these children very much love the Defendant and were quite candid in speaking of their affection for her. It was also apparent that these children had not been coached by anyone and that their conversations with me were honest and credible.
These children have been in foster care for some time, and have bonded remarkably well with their foster parents. As stated before, [Jason], through the sacrifice of his foster mother, is quite academically advanced for his age. [Debbie] is a vivacious little girl who is quite outspoken. Likewise, [Julie] is a bright child full of spontaneity and possessed of a wonderful little personality.
When questioned about any sexual abuse, the children become somewhat solemn, and it is obvious that relating these incidences are both embarrassing and painful. However, [Debbie] and [Jason] were responsive to questions, and I was very careful to couch the questions in such a way that they were neither suggestive nor leading in any manner. I truly feel that a termination of parental right case in Chancery court is as grave as a capital murder in Circuit Court. Prior to my conversations with the children, I felt that the case was somewhat balanced. [Alice] had denied any sexual *1257 involvement both passively and actively, and there were no witnesses to her ever having molested the children. The testimony of most of the parties clearly showed that these children have acted out sexually, and the testimony of the psychologist, Dr. Hurley, was especially enlightening as to inferences from that type of behavior. Of course, Dr. Hurley had also had the opportunity to talk with the children, and he related that they had told him that they had been sexually involved with their mother.
[Debbie] did tell Dr. Hurley on many occasions about being touched.
[Debbie] also related to Dr. Hurley that when she was on her mother's bed, [Bobby] came in and put his hands on her genitals and began to rub her. She cried out and her mother came in and did likewise. Dr. Hurley testified that this story never varied much.
This is the same story that [Debbie] told me when I interviewed her during the trial. It was my opinion at the time that [Debbie] was being candid, honest and truthful with me when she related this sexual conduct.
[Jason] was less explicit, but told me that [Alice] had touched him on his "privates" on more than one occasion. I had the distinct feeling that the children did not make these stories up  on the contrary, they were afraid of getting their mother in trouble. Debbie even asked me that if she told the truth would it get her mother into trouble.
At any rate, this has been a very difficult decision in a case for me. I do believe that [Alice] loves her children, and I further believe that the children love her and each other. At any rate, I find that the evidence is clear and convincing that [Alice Marie Carson] has been involved in a series of abusive incidents toward her children, namely sexual abuse, and I further find that that behavior is likely to continue if the children are placed back with her. Therefore I find that the requisites of the statute have been met, and I have no choice but to terminate the parental rights as to the two children, [Jason] and [Julie]. Because of the extreme nature of the consequences of this statute, I do this with the greatest reluctance, but I am forced to be objective and to consider the fact that this is the second court that feels this way, one entirely independent of the other.
I am aware that the Mississippi Supreme Court has on many occasions ruled that siblings should not be split up, and I am aware of the rational [sic] behind these decisions. However, Dr. Hurley testified that it would be a mistake to place these children together because of their past history and their sexual inclinations. I feel that under these circumstances that it is in the best interest of the children and their future that they be placed in different homes.

(Brackets ours)

LAW
The evidence produced in this case has been set forth at greater length and in more detail than is ordinarily recited. We have done so because of its gravity, and all parties are entitled to know it is a burden which has rested heavily upon us.
Carson's counsel quite correctly begins by reminding us that it is presumed that the best interest of a child will be served by remaining in the custody of the natural parent. Rutland v. Pridgen, 493 So.2d 952, 954 (Miss. 1986). Almost as strong is the imperative that siblings should not be required to live apart. Sparkman v. Sparkman, 441 So.2d 1361, 1362 (Miss. 1983); Mixon v. Bullard, 217 So.2d 28, 30-31 (Miss. 1968).
Our inquiry is whether the chancellor in this case had sufficient evidence to justify making an exception to these rules so wholesome and wise in the overwhelming majority of instances.
Counsel argues there was insufficient evidence to make this exception.
From the testimony of observers and experts, and the chancellor's questioning of Debbie and Jason in chambers, these children had been subjected to numerous *1258 incidents of sexual arousal by, and sexual gratification to different adults. Isolated incidents would not have produced the chronic overtly sexual behavior observed of Debbie and Jason, according to Dr. Hurley. Both children, but especially Debbie, had identified Carson being a participant at times.
The degree of knowledge and participation by Carson in these aberrant practices is not, and may never be known. The chancellor, however, found Debbie and Jason to be victims of child sexual abuse which will permanently injure them emotionally and psychologically. This finding is supported by the record. Hopefully, in time they both may receive care and attention which will help them overcome the inner conflicts, doubts and hurt this sexual abuse has inflicted upon them. There is also ample evidence to support his findings of Carson's knowledge of, or participation in the sexual abuse of her children, or both. While Debbie was the greatest and most unfortunate victim, and is not involved in this case, the treatment of her permeates and infects Jason and, did to a lesser extent, Julie. Even if the sexual abuse had been directed solely to Debbie, as sad and wrenching as it is to say, no mother should be permitted to have custody or control of any children if she permits one child to be molested as was done to Debbie.
We therefore conclude the chancellor had evidence to support the clear and convincing standard required to terminate Carson's parental rights.

I. STATUTE UNCONSTITUTIONALLY VAGUE
Miss. Code Ann. § 93-15-103(3)(b) provides:
(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(b) A parent has been responsible for a series of abusive incidents concerning one or more children;
Carson argues that in order to terminate her parental rights under this statute, child sexual abuse should have been specifically stated, and there was no showing that Carson had been guilty of a "series" of incidents. We find the statute sufficient to encompass child sexual abuse without explicitly stating, and as above noted, that Carson's complicity was shown in considerably more than an isolated incident.

II. FAILURE OF HOME TO CALL PETER HUNGERFORD AND SHARON BLACKWOOD AS WITNESSES
In her final assignment, Carson complains that the trial court erred in not requiring the Home to call Peter Hungerford and Sharon Blackwood as witnesses. She does not assign as error the reading by Nancy Hungerford of the Home's notes and records of observations made of Debbie and Jason, or the introduction into evidence of the entire notes as Exhibit 4. Nor does she complain of the introduction into evidence of the portions of the Youth Court transcript as Exhibit 12 which contained most of Peter Hungerford's relation of incidents. In fact, both exhibits were introduced without objection.
Her complaint is that the trial court did not require the Home to call them to the witness stand as trial witnesses. There is nothing in the record to suggest that Carson subpoenaed these witnesses to testify, or attempted to take their deposition, and if she had wanted them to testify her counsel was under some obligation to get their testimony. The Home was not required to call them as its witnesses.
The sole objective of the chancery court and this Court is to determine, by using all of the best competent evidence available, what is the best interest of these two children. Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). The discomforting awareness of our human limitations in reaching what in time will prove the best course cannot remove our obligation to decide. As best we can, decide we must.
Accordingly, we affirm.
AFFIRMED.
ROY NOBLE LEE, C.J., PRATHER, ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.
*1259 DAN M. LEE, P.J., concurs in result only.
NOTES
[1]  Virtually all names have been changed to protect the identity of the children.
[2]  This tape is not in this record.
[3]  These reports are not in the record.
[4]  This was the first foster home in which Jason was placed, an arrangement that did not last. He was later placed in the foster home of Mr. and Mrs. Keith Ward in Monroe, Louisiana.
[5]  The transcribed portions of the Youth Court hearings were introduced into evidence without objection as Exhibit 12.


843 F.2d 503
U.S.v.Hebrank*
NO. 87-3277
United States Court of Appeals,Eleventh Circuit.
MAR 25, 1988

1
Appeal From:  M.D.Fla.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  11th Cir.R. 23


515 P.2d 721 (1973)
STATE of Oregon ex rel. Jay R. Ware and Dulcita J. Ware, Relators,
v.
Glen HIEBER, As Judge of the Circuit Court of the State of Oregon for the County of Washington, Defendant.
Supreme Court of Oregon.
Argued and Submitted on July 10, 1973.
Decided November 1, 1973.
*722 Michael R. Hogan, Portland, argued the cause for defendant. With him on the briefs were Miller, Anderson, Nash, Yerke & Wiener and William B. Crow, Portland.
Charles F. Hinkle, Portland, argued the cause for relators. With him on the brief were Davies, Biggs, Strayer, Stoel & Boley, Portland.
Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.
Argued and Submitted on Defendant's Demurrer to Alternative Writ July 10, 1973.
DENECKE, Justice.
The issue is whether the Oregon court can acquire jurisdiction over the Wares, plaintiffs-relators, under Oregon's "longarm" statute.
Black Diamond Enterprises, Inc., filed an action on a guaranty agreement against the Wares. Personal service was made on the Wares in California. The Wares made a special appearance before the circuit court and moved to quash service upon the ground that the court had no personal jurisdiction over them. The circuit court denied the motion.
Pursuant to the usual practice, the Wares filed a petition for writ of mandamus in this court and asked that we direct the circuit court to quash the service. We issued an alternative writ ordering the circuit court to show cause why it had not quashed the service of summons on the Wares.
Before answering the basic question we must resolve some preliminary procedural issues.
The alternative writ of mandamus performs the function of a complaint. The defendant demurred to the alternative writ. A demurrer to an alternative writ has the same effect as a demurrer to a complaint; it admits all the well-pleaded facts. International Trans. v. Bohannon, 252 Or. 356, 359, 449 P.2d 847 (1969). The relators were aware of this rule. However, in their brief and on oral argument the relators did not seek to take advantage of this rule and expressly proceeded upon the basis that the facts were to be determined from the affidavits submitted to the circuit court. They took this position because of the practical consideration that if we overruled defendant's demurrer defendant would file an answer controverting at least some of the facts alleged in the alternative writ and the case would return to us.
Because the parties proceeded on the basis that by demurring the defendant did not admit the facts alleged in the alternative writ, we will proceed in the same manner. Without expressly so stating, we acquiesced in this same procedure in State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1969). In the future in mandamus the parties should proceed according to the rule that a demurrer to the alternative writ admits all well-pleaded facts in the writ.
In addition to the facts alleged in the affidavits, the facts pleaded in Black Diamond's verified complaint also can be considered. In State ex rel. Western Seed v. Campbell, supra (250 Or. at 274-275, 442 P.2d 215), we relied upon facts alleged in the complaint.
The parties disagree about the scope of our review of the facts. The evidence before the circuit court was conflicting. The Wares contend that because this is an original proceeding, we must determine the facts de novo.
Based upon the nature of mandamus and the relation of mandamus to appeal, we conclude that our function is to decide whether there was any evidence to substantiate the circuit court's ruling. We *723 should not conduct a de novo review of the facts.
ORS 34.110 provides that the writ of mandamus "shall not control judicial discretion"; this is a restatement of the common-law rule.
The author of Extraordinary Legal Remedies states:
"* * * In every case the party that is to act [the circuit court in this case] must determine in the first instance whether the case is one for action, and a question of discretion is, in its essence, a question of fact. * * * [W]hen the case presents merely a question of law, the element of discretion is not involved, the only question for determination being whether, as a matter of law, mandamus ought to issue. Where the facts are disputed, and are determined upon conflicting evidence, the finding is, of course, conclusive." Ferris, Extraordinary Legal Remedies, § 211, pp 243-245 (1926).
We appear to have adopted this idea, that in mandamus, when the facts are in dispute, the trial court is using its "judicial discretion" in deciding the facts. "As a general rule, mandamus lies to require inferior courts to act, but it will not compel them to decide disputed questions of fact in a particular way." State ex rel. Methodist Old People's Home v. Crawford, 159 Or. 377, 386, 80 P.2d 873, 877 (1938).
The principle that mandamus cannot lie to control the trial court's discretion is supported by practical considerations as well as tradition. In cases in which the trial court has held it had personal jurisdiction, we have permitted mandamus to be used to test such a ruling. The ruling could also be tested by appeal. Enco, Inc. v. F.C. Russell Co., 210 Or. 324, 329-337, 311 P.2d 737 (1957). On appeal the findings of the trial court will be sustained if there is any evidence to support the findings.
Carlson v. Superior Court of Los Angeles County, 56 Cal.2d 431, 15 Cal. Rptr. 132, 364 P.2d 308 (1961), held in an original proceeding in mandamus that it did not review de novo trial court's findings. The trial court refused to permit a party to take certain depositions. The party petitioned the Supreme Court to mandamus the trial court. The Supreme Court stated:
"This leaves for determination the question of whether, under the facts, the trial court abused its discretion in making the challenged order. Of course, if there was any evidence that supports any one of the grounds urged for suppression of the right to take the depositions, then this court may not substitute its opinion for that of the trial court, and the order must be sustained. But if there is no legal justification for such exercise of discretion it must be held that an abuse occurred." 15 Cal. Rptr. at 136, 364 P.2d at 312.
Having resolved these preliminary questions, we may now address the question whether there is any evidence to support the trial court's denial of the motion to quash.
ORS 14.035 provides: "Any person * * * who, in person or through an agent * * * [transacts] any business within this state" thereby submits "to the jurisdiction of the courts of this state * * *." The trial court, by denying the motion to quash, necessarily found that the Wares did transact business within Oregon.
As Black Diamond prevailed on the motion to quash, we will consider the facts in a light most favorable to Black Diamond. Black Diamond, the plaintiff in the action against the Wares, is a Tennessee corporation. It manufactures motor homes in Oregon through its Cabana Coach Division. Keller Enterprises is a Nevada corporation engaging in retail sales of motor homes at several California locations. Rick Keller is President; Jay Ware, Vice-President; and Dulcita Ware, his wife, Secretary-Treasurer. The Wares own the majority interest in Keller Enterprises. The Wares are California residents and Jay Ware's principal business is a plumbing shop in California.
*724 In October 1969 Black Diamond approached Keller Enterprises and the Wares at a trade show in California and attempted to interest them in buying its product. In November 1969 Keller and Jay Ware came to Black Diamond's plant in Oregon to evaluate Black Diamond's operation and negotiate a dealer franchise. During this Oregon visit Black Diamond granted Keller Enterprises a dealership.
At the close of their stay in Oregon Ware and Keller drove motor homes to California. Thereafter, Keller Enterprises continued to purchase or take on consignment motor homes from Black Diamond. Contracts for some of these purchases were signed by Jay Ware. Employees of Keller Enterprises came to Oregon to take delivery of some vehicles. The motor homes were not custom made for Keller Enterprises.
Black Diamond "factored" vehicles through H.A. Caesar & Co., Inc., a New York corporation, to assist Keller Enterprises in financing their purchases. Caesar had full recourse against Black Diamond for amounts paid it by Caesar and secured through the obligation of Keller. Black Diamond came to believe that a competitor had an interest in Keller Enterprises. Partially for this reason, Black Diamond required the Wares and Keller to execute an agreement whereby they personally agreed with Caesar to guaranty amounts due from Keller Enterprises.
The guaranty agreement was dated April 3, 1970. It was on Caesar's forms, mailed from New York, executed in California by the guarantors, and mailed to Caesar in New York. It provided it "shall be governed by the laws of, the State of New York."
In reliance upon the guaranty, Black Diamond sold motor homes to Keller Enterprises. Keller Enterprises failed to pay its obligations to Caesar and Caesar assigned its right under the guaranty agreement to Black Diamond.
Do these facts establish that the Wares transacted business in Oregon?
In State ex rel. White Lbr. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968), we held the relator was transacting business in Oregon. The majority adopted "fairness" as the test and decided it was fair in that case to subject the relator to jurisdiction because the defendant had sufficient "contacts" in Oregon. The facts were that the Florida corporation, a lumber products wholesaler, instituted by telephone from Florida the purchase of plywood to be custom-manufactured in Oregon and shipped to Florida. The parties had done business with each other and constantly did business in interstate commerce.
On the other hand, in Neptune Microfloc v. First Fla. Util., 261 Or. 494, 495 P.2d 263 (1972), we held the Oregon court could not secure jurisdiction under the "longarm" statute. The plaintiff Oregon corporation solicited the defendant, a Florida corporation operating a sewage treatment plant, to purchase some settling tubes manufactured in Oregon. We held Oregon did not have jurisdiction over the defendant because: "The defendant did not have sufficient contacts with Oregon and it is not a concern that does interstate business." 261 Or. at 497, 495 P.2d at 264.
If Keller Enterprises were the defendant, we would have little trouble holding that it was subject to the jurisdiction of the Oregon courts. The only distinction from the White case that is favorable to the Wares is that in the present case the entire transaction was instituted by Black Diamond, whereas White Lumber Co. instituted the transaction. However, the dealership agreement Keller Enterprises entered into with Black Diamond, the continual purchases by Keller Enterprises and its occasional acceptance of deliveries in Oregon gave Keller Enterprises continuous contact with this state.
The frequent physical presence of employees of Keller Enterprises in Oregon leads to the conclusion that Keller Enterprises could litigate in Oregon without such inconvenience and disadvantage as to amount to unfairness.
*725 Keller Enterprises engaged in interstate business in Oregon.
Whether the Wares personally can be required to litigate in Oregon, however, is not so clear.
If we were to view the Ware's guaranty as a transaction completely separate from the transaction between Black Diamond and Keller Enterprises, the connection between the Wares and Oregon would be slender. We do not consider it realistic, however, to consider the guaranty in a vacuum. From the standpoint of "fairness" to the parties and convenience to the parties and from the standpoint of the interests of the State of Oregon, we are of the opinion that the personal guaranty of the Wares must be considered as one aspect of the entire course of business between Keller Enterprises and Black Diamond.
According to evidence which the circuit court could have relied upon, the guaranty agreement was essential to the continuation of the business relationship between Keller Enterprises and Black Diamond. Without the agreement Black Diamond would have ceased manufacturing vehicles in Oregon for sale to Keller.
Mr. Ware had found it not inconvenient to come to Oregon to commence the contractual relationship with Black Diamond. It should be no more inconvenient for him to come to Oregon to litigate the controversy attending the termination of the relationship.
We are not specifically apprised of what, if any, defense the Wares have to Black Diamond's claim. From statements in Mr. Ware's affidavits we can infer that the Wares will contend that Black Diamond misrepresented to the Wares the intended use of the guaranty agreement. A trial of such issues will require testimony of Black Diamond's Oregon employees and the Ware's and Keller's employees. Either Oregon witnesses must go to California or California witnesses must come to Oregon. Employees of each company have come to the other's state in connection with commencement and continuation of the business. It cannot be too inconvenient to go to either state to litigate the termination of the business.
Two guaranty cases, while distinguishable upon their facts, emphasize that when the parties to the underlying transaction which was guarantied were transacting business in the forum state the guarantors also would be found to be transacting business within the forum state.
In O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir.1971), an Illinois business leased an airplane to an Oklahoma corporation. Oklahomans who were the owners of the Oklahoma corporation guarantied the lease. The court held the Oklahoma guarantors were subject to jurisdiction in Illinois. The court stated:
"While the guarantors received no direct consideration, it appears there was inducement in connection with their projected interest in World Travelers [Oklahoma corporation] for them to want eventual financing of the airplane to be purchased. They should not be in the position, even though indirectly, to enjoy the fruit but to disavow the situs of the tree from which the fruit was derived. * * *." 437 F.2d at 1177.
In Salter v. Lawn, 294 F. Supp. 882 (D. Mass. 1968), the defendant, a New Jerseyan, was the sole owner of a corporation doing its principal business in Massachusetts. The defendant guarantied loans of a Massachusetts bank to the corporation. The corporation repaid the loans immediately before bankruptcy. The trustee in bankruptcy of the corporation brought this action against the guarantor to recover preferences. Chief Judge Wyzanski held Massachusetts could obtain jurisdiction over the New Jerseyan:
"Another way of arriving at the same ultimate conclusions is to observe that the notes which had been made and paid by the bankrupt corporation in Massachusetts had previously been guaranteed in Massachusetts by defendant, and that guarantee was discharged in Massachusetts *726 by the bankrupt corporation's payments in this Commonwealth. Where a nonresident guarantees in Massachusetts a note made in Massachusetts by a Massachusetts primary obligor, the nonresident, by virtue of the `Long Arm' statute, is subject to service on a cause of action arising out of the guarantee. * * *. And if the avoidance of the guarantee is a consequence of a preferential payment made in Massachusetts, an action against the non-resident guarantor to recover a preference is `a cause of action arising [albeit indirectly] from the person's transacting * * * business in this commonwealth.'" 294 F. Supp. at 884.
The Wares contend that Mrs. Ware was never physically present in Oregon; that Mr. Ware was only in Oregon as an agent of the corporation; and that the guaranty was executed in California. We decided in State ex rel. White Lbr. v. Sulmonetti, supra, 252 Or. 121, 448 P.2d 571, that physical presence in the state was not a prerequisite to transacting business in the state and the place where the contract was executed is not determinative of where the business is transacted. Ferrante Equip. v. Lasker-Goldman, 26 N.Y.2d 280, 309 N.Y.S.2d 913, 258 N.E.2d 202 (1970), relied upon by the Wares, is not in accord with White.
The Wares also contend that Black Diamond is a Tennessee corporation and Oregon has no compelling interest in providing a foreign corporation with a forum. The state of incorporation is not determinative. Black Diamond's Oregon operation is the concerned organization in this litigation.
The Wares also urge that the clause in the guaranty providing that New York law shall apply militates against Oregon taking jurisdiction. Such a choice of law clause has a bearing on the state's interest in providing a forum. If such a clause were a paramount consideration, however, New York would be the primary forum and we cannot conceive that the Wares want to litigate this case in New York. Furthermore, from the little we know of the merits, we assume the issues will involve the contractual relation between Black Diamond, the Wares and Keller Enterprises. These issues will not be governed by New York law.
The Wares have cited other cases holding that a guarantor who never came in the state was not transacting business. In Misco Leasing Inc. v. Vaughan, 450 F.2d 257 (10th Cir.1971), it cannot be determined whether the forum state could gain jurisdiction of the party to the contract which was guarantied. In All Lease Company v. Betts, 294 Minn. 473, 199 N.W.2d 821 (1972), the court held the forum state did not have jurisdiction over the party to the underlying transaction. In the present case jurisdiction over the guarantors is keyed to the ability to gain jurisdiction over Keller Enterprises. Also, those decisions seem to adopt the view that some physical presence in the forum state at some time is essential. We previously rejected this view.
D.E.B. Adjustment Company v. Dillard, Colo. App., 508 P.2d 420 (1973), held Colorado could not obtain jurisdiction by the long-arm statute over a California mother who had guarantied her son's room and board contract with a Colorado school. The court's reasoning is general (in this type of case this may be wise), but the decision may be distinguished because the mother was not engaging in any commercial activity.
We hold there was evidence supporting the trial court's denial of the motion to quash.
Peremptory writ disallowed.
O'CONNELL, Chief Justice (dissenting).
For the reasons developed in my dissenting opinion in State ex rel. White Lumber Sales v. Sulmonetti, 252 Or. 121, 128, 448 P.2d 571, 574 (1968), I am of the opinion *727 that the proper forum for the litigation of the action brought by Black Diamond Enterprises, Inc. against the Wares is the defendants' domicile. Therefore, the service upon the Wares should be quashed.


725 S.E.2d 474 (2012)
STEPHENSON
v.
TIME WARNER CABLE INC.
No. COA11-1192.
Court of Appeals of North Carolina.
Filed May 1, 2012.
Case Reported Without Published Opinion
Affirmed.